26-ORD-162 – Kenneth Cooke/University of Kentucky

Opinion Content:

April 13, 2026

In re: Kenneth Cooke/University of Kentucky

Summary: The University of Kentucky (“the University”) did not
violate the Open Records Act (“the Act”) when it did not provide
materials that are not “public records” within the meaning of
KRS 61.870(2).

Open Records Decision

On December 17, 2025, Kenneth Cooke (“the Appellant”) submitted a multi-
part request for records relating to the University’s Environmental Quality
Management Center (“EQMC”) Project and its Cancer Center Project. At issue in this
appeal is the Appellant’s request for “[a]ll final versions of the Drainage Report
Review, Stormwater Management Plan, and any supplemental hydraulic modeling
documents (including XP-SWMM or HEC-RAS model output files, if applicable)
associated with” the projects. In its initial response, the University stated it was
providing responsive records. In a follow-up email on January 7, 2026, the Appellant
complained that “[t]he University provided PDF summaries of model results but
failed to provide the raw electronic model files used to generate those results.” The
University replied that it “does not possess the raw files that may have been used by
the design engineer to generate the reports provided to” the Appellant.

After some further discussion with the Appellant, the University reiterated on
January 28, 2026, that “all documents that the engineer of record provided to the
University had been produced” and “the University does not possess the raw
electronic modeling files.” The University further explained that “[t]hose files would
have been prepared by a subcontractor of the University (Bell Engineering)” and,
under the contract, “[t]he University only required submittal of final reports and
summaries based on those model files.” Because it did not possess the raw electronic
model files, nor did it require them from the engineer under the contract, the
University asserted they were not public records under KRS 61.870(2). This appeal
followed.

The Act defines “public record” as “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). On appeal, the University states
the electronic model files sought by the Appellant are “prepared, owned, used, in the
possession of or retained by” Bell Engineering, not the University, and “university
officials have never even seen” them. Once a public agency states affirmatively that
it does not possess certain records, the burden shifts to the requester to make a prima
facie case that it does possess them. See Bowling v. Lexington–Fayette Urb. Cnty.
Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). A requester’s bare assertion that an agency
possesses requested records is insufficient to make a prima facie case that the agency,
in fact, possesses them. See, e.g., 22-ORD-040. Rather, 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 his contention. See, e.g., 21-
ORD-177; 11-ORD-074.

Here, the Appellant makes three arguments. First, he claims the University
should have the electronic models for the two projects in question because he
separately requested from the University, and received, electronic models prepared
by a different engineering firm for a “Stormwater Master Plan” study from 2010.
However, the fact that the University possesses electronic models from a different
project is not prima facie evidence that it obtained such models from Bell Engineering
for the EQMC and Cancer Center projects.

Second, the Appellant argues the University has “constructive possession” of
the electronic models because, even though the University has not required Bell
Engineering to provide those models, it “has the right to demand” them. The concept
of “constructive possession” has not been employed by the courts or this Office in
construing the Act. In criminal law, however, constructive possession exists “when a
person does not have actual possession but instead knowingly has the power and the
intention at a given time to exercise dominion and control over an object, either
directly or through others.” Haney v. Commonwealth, 500 S.W.3d 833, 835 (Ky. App.
2016) (emphasis in original) (quoting U.S. v. Craven, 478 F.2d 1329, 1333 (6th Cir.
1973)). Thus, even if “constructive possession” were a recognized concept under the
Act, the Appellant has not made a prima facie case that the University had both “the
power and the intention . . . to exercise dominion and control over” the electronic
models used by Bell Engineering. The Appellant asserts, without evidence, that the
University “has the right to demand” the electronic models from the engineer. Even
assuming that to be true, however, “an agency’s mere ‘access’ to electronic records,
without more, does not make them ‘public records’ for purposes of the Act.” 23-ORD-
344. Rather, under KRS 61.870(2), the agency must in fact prepare, own, use, possess,
or retain the records. Here, the Appellant has not shown that to be the case.

Finally, the Appellant asserts the University “cannot use a private contractor
to shield public records from disclosure.” That statement is correct, so far as it goes,
but the Appellant’s argument “presumes the records in question were public records
in the first place.” 24-ORD-153. The Appellant relies on 04-ORD-123, in which the
Office found a city’s “records pertaining to drainage matters,” in the possession of an
agency’s private attorney, were nevertheless “public records” under the Act because
they were the city’s “own records.” 1 Similarly, in 11-ORD-105, the Office found an
agency was “obligated to retrieve” certain records from a retired employee for
inspection purposes, because they were not his personal property but the agency’s
own “backup” copies that it had improperly transferred into his custody. Here, by
contrast, the Appellant has not shown that the electronic models used by Bell
Engineering are “owned” by the University. Thus, the Appellant has not made a
prima facie case that the University possesses or should possess the records; nor has
he refuted the University’s position that they are not “public records” under
KRS 61.870(2). Accordingly, the University did not violate the Act. 2

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

1 Further, the Office has consistently held that “records in the possession of a private attorney
relating to his representation of a public agency” are public records “because the file is ‘owned’ by his
client, the public agency.” 24-ORD-062 (citing 20-ORD-115; 06-ORD-032).
2 Because KRS 61.870(2) is dispositive of the issues on appeal, it is unnecessary to address the
University’s alternative argument that the electronic models are “preliminary” under KRS 61.878(1)(i)
or (j).

Kenneth Cooke
William E. Thro, Esq.
Amy R. Spagnuolo