25-ORD-120
May 14, 2025
In re: Kurt Wallace/Office of the Attorney General
Summary: The Office of the Attorney General (“the Office”) did not
violate the Open Records Act (“the Act”) when it did not provide records
it does not possess.
Open Records Decision
On April 8, 2025, Kurt Wallace (“Appellant”) submitted a request to the Office
seeking copies of documents1 he had delivered to the Office, mail logs showing those
documents were received, meeting minutes of the Prosecutors Advisory Council and
the Office showing actions related to those documents, a copy of the Office’s records
management policy,2 and a copy of all meeting minutes for the Prosecutors Advisory
Council from 2024 and 2025. In a timely response, the Office produced records
responsive to the Appellant’s request for 2024 and 2025 Prosecutors Advisory Council
meeting minutes and stated that it possesses no additional responsive records. This
appeal followed.
On appeal, the Office maintains that it does not possess any records responsive
to the Appellant’s request. Once a public agency states affirmatively that a record
does not exist, the burden shifts to the requester to present a prima facie case that
the requested record does or should exist. See Bowling v. Lexington–Fayette Urb.
Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester is able to make a prima
facie case that the records do or should exist, then the public agency “may also be
called upon to prove that its search was adequate.” City of Fort Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). To
1
The Appellant stated these documents were “Notification[s] that the Executor Office” of three
individuals are occupied.
2
Specifically, the Appellant requested policies “on loss of document control, failure to document
receipt of records, mishandling of records, and maladministration concerning administrative or
operational mishandling of documents” or “on proper document logging and handling.”support a claim that the agency possesses responsive records it did not provide, the
Appellant must produce some evidence that calls into doubt the adequacy of the
agency’s search. See, e.g., 23-ORD-259; 95-ORD-96.
Here, in an attempt to make a prima facie case that the mailing records exist,
the Appellant provided the tracking information from the United States Postal
Service for mail delivered to the Office on April 11, 2025.3 However, this document
only proves that the Appellant sent mail to the Office on that date. It does not make
a prima facie case that the mail the Appellant sent included the records he now
requests. Moreover, the Appellant has not cited statutory authority requiring the
Office to maintain the records he claims to have sent the Office.4 Thus, the Appellant
has not made a prima facie case that the Office possesses additional responsive
records.
However, even if the Appellant had made a prima facie case that the mailing
records exist, the Office has described, in detail, the search it conducted. An adequate
search for records is one using methods reasonably designed to find responsive
records. See, e.g., 95-ORD-096. Reasonable search methods include reviewing the files
pertaining to the general subject matter of the request, and the files of employees
either specifically mentioned in the request or whose job duties are related to the
subject matter of the request. See, e.g., 19-ORD-198. To carry its burden of explaining
how its search was adequate, an agency must, at a minimum, specifically describe
the types of files or identify the employees whose files were searched. See id. Here,
the Office identified four of its divisions that have had contact with the Appellant and
explained that it searched each division’s physical and electronic files. It further
identified the employee whose emails it searched for responsive records. As such, even
though the Appellant has not made a prima facie case that responsive records exist,
the Office has demonstrated that it conducted an adequate search for the records.
Thus, the Office did not violate the Act.
3
After the Appellant provided this tracking information, the Office provided the Appellant with a
certified mail receipt associated with the tracking number. The Office noted that the receipt does not
describe the contents of the mail matter.
4
For its part, the Office explains that the records retention schedule governing “Routine
Correspondence/Messages” requires state agencies to retain such messages for “no longer than two (2)
years.” See General Schedule for State Agencies, Series M0002, “Routine Correspondence/Messages,”
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
gency.pdf (last accessed May 9, 2025).A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#154
Distributed to:
Kurt Wallace
Brystin Denguessi Kwin