25-ORD-409 – Mohamed Aly/Kentucky Real Estate Authority

Opinion Content:

December 18, 2025

In re: Mohamed Aly/Kentucky Real Estate Authority

Summary: The Kentucky Real Estate Authority (“the Authority”) did
not violate the Open Records Act (“the Act”) when it did not grant a
request seeking records that it does not possess or information.

Open Records Decision

On November 7, 2025, Mohammed Aly (“the Appellant”) submitted a request
to the Authority seeking records associated with a particular case before of the
Kentucky Real Estate Commission (“the Commission”). In response to that request,
the Authority invoked KRS 61.872(5) to delay its final production of records,
explaining that it had identified 667 unique emails and other records constituting
over 1,500 pages that were responsive to the Appellant’s request. 1

After receiving that response, on November 10, 2025, the Appellant submitted
a new request. That request (1) sought an index of all records identified in the
Authority in response to his previous request, (2) asked whether any of the identified
records were created prior to June 25, 2025, and (3) asked that the responsive records
be grouped into particular categories. In response, the Authority stated that it does
not possess records responsive to the Appellant’s request. This appeal followed.

Regarding the requested index, the Authority maintains that no such index
exists. Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to make a prima facie case that
the records do exist and that they are within the agency’s possession, custody, or
control. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). If the requester makes a prima facie case that the records do or should exist,
“then the agency may also be called upon to prove that its search was adequate.” City

1 The Appellant submitted a separate appeal regarding that request, and in 25-ORD-408, the Office
found no violation of the Act, reasoning that the Authority’s delay was reasonable and made in good
faith.

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 make a prima facie case that the agency possesses
or should possess the requested records, the requester must provide some statute,
regulation, or factual support for that contention. See, e.g., 23-ORD-207; 21-ORD-177;
11-ORD-074.

The Appellant has not made a prima facie case that the Authority currently
possesses the index he requested. Rather, he insists that the Authority’s ability to
estimate the number of responsive records indicates that an index must exist. But
this statement is no more than a mere assertion that the index should exist, and such
an assertion does not make a prima facie case that the agency in fact possesses
additional responsive records. See, e.g., 23-ORD-042. Moreover, the Act does not
require a public agency to create a record to satisfy a request. See, e.g., 24-ORD-278;
24-ORD-229; 16-ORD-052. Here, the Appellant has not made a prima facie case that
the Authority currently possesses the requested index. Accordingly, the Office cannot
find that the Authority violated the Act when it did not provide an index it does not
possess.

Regarding the remains parts of the Appellant’s request, the Authority states
that those are requests for information. The Authority is correct. See, e.g., 23-ORD-
257 (denying a request for “the full names” of correctional officers on duty at a specific
time); 22-ORD-054 (denying a request asking “who ordered” a letter to be written,
how much the author was paid, and “why” the letter “was circulated”). The Act does
not require public agencies to answer interrogatories or fulfill requests for
information. Rather, it only requires public agencies to produce extant public records
for inspection. See KRS 61.872(2)(a) (requiring a request to inspect records to include,
inter alia, a description of “the records to be inspected”); Dep’t of Revenue v. Eifler,
436 S.W.3d 530, 534 (Ky. App. 2013) (“The [Act] does not dictate that public agencies
must gather and supply information not regularly kept as part of its records.”).
Accordingly, the Authority did not violate the Act when it did not grant the
Appellant’s requests for information.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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 [email protected].

Russell Coleman
Attorney General

/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Mohamed Aly
Gerald W. Florence, Records Custodian/Executive Advisor, Kentucky Real Estate
Authority
Patrick Riley, General Counsel, Kentucky Real Estate Authority
Tracy W. Carroll, Executive Director, Public Protection Cabinet, Kentucky Real
Estate Authority