26-ORD-091 – Valerie Frost/Kentucky State Police

Opinion Content:

March 12, 2026

In re: Valerie Frost/Kentucky State Police

Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it redacted records under KRS 61.878(1)(a)
and when it did not provide records that do not exist.

Open Records Decision

Valerie Frost (“the Appellant”) submitted a request to KSP seeking records
related to a specific KSP case. 1 In response, KSP produced the initial “Kentucky
Incident-Based Reporting System Report” related to the identified case but denied
the request under KRS 61.878(1)(h), explaining that the underlying incident is still
being investigated, a prosecution decision has not been made, and disclosure would
harm KSP by “creating bias in the jury pool.” This appeal followed.

On appeal, KSP states that the underling investigation is now complete and it
has provided all responsive records in its possession to the Appellant. KSP further
states that it has made redactions to the records under KRS 61.878(1)(a) and that it
does not possess responsive dash camera video recordings, body-worn camera video
recordings, or communications related to a consultation with the “Electronic Crimes
Branch.” Thus, this appeal is moot as to KSP’s invocation of KRS 61.878(1)(h). See 40
KAR 1:030 § 6 (“If the requested documents are made available to the complaining
party after a complaint is made, the Attorney General shall decline to issue a decision
in the matter.”). However, the appeal is not moot as to KSP’s redactions or statement
that it does not possess certain requested records.

1 Specifically, the Appellant sought: (1) communications related to the charging decision; (2) any
records submitted to or received from the district court; (3) “investigative records; (4) records related
to a consultation with the “Electronic Crimes Branch”; (5) any audio or video recordings; (6) records
related to probable cause, criminal summons, subpoenas or warrants, or limitations with the county
attorney or district court; and (7) records that reference the Appellant.

KRS 61.878(1)(a) exempts “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” In reviewing an agency’s denial of an open
records request based on the personal privacy exemption, the courts and the Attorney
General balance the public’s right to know what is happening in government against
the personal privacy interest at stake in the record. See Zink v. Commonwealth, Dep’t
of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). However, the Supreme
Court of Kentucky has held that certain categories of personal information about
individuals provide minimal insight into governmental affairs and may be
categorically redacted under KRS 61.878(1)(a). Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). These categories include home addresses,
personal phone numbers, driver’s license numbers, and Social Security numbers. Id.
The Court also recognized that law enforcement agencies could redact from public
records information related to witnesses, uncharged suspects, and juveniles. Id. at
86. Personal email addresses may likewise be redacted under KRS 61.878(1)(a), as
they ordinarily shed no light on government conduct. See, e.g., 16-ORD-205.

KSP states that it redacted “dates of birth; personal telephone numbers;
personal e-mail addresses; driver’s license numbers, home addresses, and juvenile
information.” Each of these categories of information may be redacted pursuant to
KRS 61.878(1)(a). Moreover, the Appellant has not identified any countervailing
public interest warranting unredacted disclosure. Thus, KSP did not violate the Act
when it redacted personal information from the records it provided under
KRS 61.878(1)(a).

Regarding KSP’s assertion that it does not possess certain records, once a
public agency states affirmatively that no additional records exist, the burden shifts
to the requester to make a prima facie case that additional records do exist. 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 of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341). A requester must provide some evidence to make a prima facie
case that additional records exist, such as the existence of a statute or regulation
requiring the creation of the records or other factual support for the existence of the
records. See, e.g., 21-ORD-177; 11-ORD-074. A requester’s bare assertion that certain
records exist or should exist is insufficient to make a prima facie case that the records
actually do exist. See, e.g., 22-ORD-040.

KSP states that it does not possess responsive dash camera video recording,
body-worn camera video recordings, or communications related to a consultation with
the “Electronic Crimes Branch.” The Appellant has not attempted to make a prima

facie case that KSP does, in fact, possess such records. Thus, the Office cannot find
that the Cabinet violated the Act by not providing records it does not possess.

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

Samantha A. Bevins
Sara Talarigo
Charles Bates
Captain Bradly Stotts
Sgt. Zack Morris
Emmalie K. Hankinson, Supervisor, Public Records Branch,
Kentucky State Police
Jonathan Courtwright, Kentucky State Police
Ann Smith, Executive Staff Advisor, Justice and Public Safety Cabinet