26-ORD-131 – John Rothenburger/Shelby County School District

Opinion Content:

March 30, 2026

In re: John Rothenburger/Shelby County School District

Summary: The Shelby County School District (“the District”) violated
the Open Records Act (“the Act”) when it did not timely respond to a
request for records and when it did not adequately explain its reliance
on KRS 61.878(1)(a). The District did not violate the Act when it did not
respond to a request sent by text message, when it did not respond to a
request it did not receive, and when it did not provide records it does not
possess.

Open Records Decision

This appeal concerns three requests for records John Rothenburger (“the
Appellant”) submitted to the District. The Office will consider each, in turn.

First, on June 27, 2025, the Appellant requested a copy of “the findings,
charges, or other disciplinary actions” against him. This “request” was submitted by
a text message to the District’s superintendent. The superintendent responded,
stating she would “get that to you as soon as possible.” On appeal, the Appellant
complains that he did not ultimately receive a response from the District.

Under KRS 61.872(2)(b), a request for records may either be hand delivered or
submitted by mail, facsimile, or email. Here, the Appellant submitted his June 27
request by text message. Text messaging is not a delivery format authorized by the
Act. Accordingly, the June 27 message was not a request for records to which the
District was required to respond under the Act. Thus, the District did not violate the
Act when it did not respond to the June 27 request.

Next, the Appellant states that he submitted an eight-part request for records
on August 18, 2025. 1 In response, the District stated it had provided the Appellant
with “copies of documents reflecting the complaint, the District’s investigation, and
the outcome of the investigation.” The District stated it was withholding “records of
other employees containing information of a personal nature.” Regarding the request
for records related to other investigations of testing violations, the District stated that
only the Appellant “received discipline as the result of testing violations in the
District.”

The Appellant alleges the District did not timely respond to his request,
adequately explain its denial, or provide all records responsive to his request.

Under KRS 61.880(1), a public agency has five business days to fulfill or deny
a request for public records. Here, the District acknowledges that it issued its
response on the sixth business day following its receipt of the request. Thus, the
District did not comply with KRS 61.880(1).

A public agency denying inspection of public records must “include a statement
of the specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” KRS 61.880(1). The
agency must “provide particular and detailed information,” not merely a “limited and
perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The
agency’s explanation must be detailed enough to permit [a reviewing] court to assess
its claim and the opposing party to challenge it.” Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013).

KRS 61.878(1)(a) exempts from disclosure “[p]ublic records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy.” This exception requires a
“comparative weighing of the competitive interests” between personal privacy and
the public interest in disclosure. Ky. Bd. of Exam’rs of Psychologists v. Courier–
Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). However, when the
public agency fails to articulate a privacy interest, “the balance is decisively in favor
of disclosure.” 10-ORD-082; see also 20-ORD-033; 19-ORD-227. Here, the District
stated only that it was withholding “records of other employees containing
information of a personal nature.” The District did not describe the records that were

1 Specifically, the Appellant sought (1) all version of any submitted complaints, (2) all
communications discussing the complaint, (3) any “investigative notes, interview summaries,” (4)
“student statements” with student identifying information redacted, (5) “student test score data
related to the case,”(6) a “list of any withheld documents and the legal authority for withholding them,”
and (7) “[l]ogs of evidence collections and any internal memoranda related to my case.” The Appellant
also separately requested records related to other allegations and an investigation into “testing
violations” from the previous 10 years.

being withheld, nor did it articulate the privacy interest that would be implicated by
their disclosure. By failing to provide any meaningful description of the records or the
implicated privacy interest, the District did not adequately invoke KRS 61.878(1)(a).

Once a public agency states affirmatively that a record does not exist, the
burden shifts to the requester to make 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 makes a prima facie case that the record does 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). A requester’s bare assertion that a
public agency should or must possess the requested records is not adequate to make
a prima facie showing that the agency does, in fact, possess the records. See, e.g., 22-
ORD-040.

Here, the Appellant alleges that a different public agency provided him with
records it had originally received from the District. The Appellant explains that the
District did not provide him with those records when responding to his August 18
request. The Appellant has not provided the Office with a copy of the records he
allegedly received from a different agency. As such, the Appellant has done no more
than allege that additional records exist. This fails to make a prima facie case that
additional records exist.

Finally, the Appellant states that he submitted a request on October 20, 2025,
asking the District to “resend” him its August 26, email responding to his earlier
August 18 request. The Appellant alleges the District violated the Act by not
responding to this request.

The District explains that it “never received” the October 20 request. It states
that the request likely went to its email spam filter. The Office has found that the
interception of emailed requests by spam filters or anti-phishing programs that
prevent them from reaching the recipient is tantamount to the agency not receiving
the request. See, e.g., 25-ORD-087; 24-ORD-001; 23-ORD-182; 23-ORD-153; 23-ORD-
064. Accordingly, the Office cannot find that the District violated the Act when it did
not receive the 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

John Rothenburger
Lindsay Tate Porter, Esq.
Joshua Matthews, Superintendent
Andy Moore
Cathy Davis