26-ORD-037 – Nathan McCamish/Office of the Secretary of State

Opinion Content:

February 3, 2026

In re: Nathan McCamish/Office of the Secretary of State

Summary: The Office of the Secretary of State (“the Agency”) violated
the Open Records Act (“the Act”) when it denied a request for records
prepared and used by the Agency for official purposes on the grounds
that they were not public records.

Open Records Decision

Nathan McCamish (“the Appellant”) submitted a request to the Agency for
“[a]ll ‘Memorandum for Non-Commercial Use Subscribers to the Online UCC Bulk
Data, UCC Images and/or Business Entity Lists’ forms submitted from calendar year
2020 onward for the [Agency’s] approval.”1 In a timely response, the Agency stated it
“does not retain the requests for UCC Bulk Data and therefore has no responsive
documents.” The Agency further explained the requests “are sent to [the Agency’s]
office for approval from Tyler Technologies/Kentucky Interactive. Because they
finalize the request, the final documents are within their possession. In fact, they
have now digitized the process, so no physical document is provided for [the Agency’s]
review.” This appeal followed.

A public agency “is responsible only for those records within its own custody or
control.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013)
(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980));
see also Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The ORA
does not dictate that public agencies must gather and supply information not
regularly kept as part of [their] records.”). Once a public agency states affirmatively
that it has no responsive records, the burden shifts to the requester to make a prima
facie case that the requested records do exist within the agency’s possession, custody,
or control. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341

1 Under 30 KAR 5:060 § 5(2), “[b]ulk data related to UCC filings may be obtained through
subscription as directed by the Web site of the Office of the Secretary of State and shall be made
available under the terms and conditions of the subscriber agreement.”

(Ky. 2005). If the requester makes a prima facie case that records do or should exist,
“then the 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). Therefore, to support a claim that the agency has
responsive records that it did not provide, the Appellant must produce some evidence
that calls into doubt the adequacy of the agency’s search. See, e.g., 95-ORD-96.

Here, the Appellant provides a blank copy of the application form he referenced
in his request. As he points out, the form contains a block marked “For Secretary of
State Office Use Only,” which contains blanks for “SOS Approval” (Yes or No), “SOS
Approver Name,” “SOS Signature,” and the date.2 Therefore, the Appellant claims
that the Agency violated the Act by failing to conduct an adequate search for records
routinely prepared and used by the Agency for official purposes. The Agency,
however, claims the applications are not “public records” under the Act because they
are in the custody and control of “a third-party vendor,” not the Agency.3

As the Agency describes the application process, “[b]ulk data waiver requests
submitted through the [Agency’s] electronic processes are transmitted directly to the
Commonwealth’s state-approved data management vendor, Tyler Technologies,
doing business as Kentucky Interactive and Kentucky.gov. The [Agency] does not
retain copies of those submissions in its own records management systems. They are
instead transmitted to and maintained by Tyler Technologies.” The Agency does not,
however, refute the Appellant’s evidence that, at some point in the process, the
submissions are reviewed and acted upon by the Agency when it approves or denies
each application.

The definition of “public record” under the Act includes “all books, papers,
maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other
documentation regardless of physical form or characteristics, which are prepared,
owned, used, in the possession of or retained by a public agency.” KRS 61.870(2)
(emphasis added). Under this definition, “records are ‘public records’ if they are
‘owned . . . by a public agency,’ even if they are ‘in the possession of’ a vendor.” 23-
ORD-344 (citing 20-ORD-115). Moreover, “a record can become the property of a public
agency,” and thus a public record, “if it is used or prepared by the public agency for
an official purpose.” 24-ORD-099 (emphasis added) (citing 23-ORD-057); see also 22-
ORD-184 (finding social media posts prepared, used, and retained by a public officer
in his official capacity were public records under KRS 61.870(2) despite being stored

2 The form also states that “the User must provide very specific information to the Secretary of State
to prove that it is entitled to application of his [sic] exemption” (emphasis added).
3 The Agency acknowledges, however, “that the use of third-party electronic vendors can present
questions regarding electronic custody and agency.” Therefore, the Agency states it “is making a good-
faith effort to determine whether any responsive records may still exist in the custody of Tyler
Technologies/Kentucky Interactive and whether they can be made available to” the Agency.

on a private company’s website). Here, the Agency “prepares” the forms insofar as it
marks them approved or disapproved and adds a name and signature. The Agency
also “uses” the forms for an official purpose when it grants or denies the applications.
This is enough to make the forms “public records,” regardless of whether they are “in
the possession of or retained by” the agency. See 24-ORD-099. “A public agency
cannot, by means of a contract with a private company, deprive records of their public
character.” 09-ORD-020. Nor can an agency disclaim “custody or control” of records it
uses for official purposes by placing them in the possession of a third-party vendor.
Accordingly, the Agency violated the Act when it denied the Appellant’s request.

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/ James M. Herrick
James M. Herrick
Assistant Attorney General

Nathan McCamish
Michael R. Wilson, Esq.
Jennifer S. Scutchfield, Esq.