25-ORD-411 – Kevin Swincher/City of Bowling Green

Opinion Content:

December 18, 2025

In re: Kevin Swincher/City of Bowling Green

Summary: The City of Bowling Green (“the City”) did not violate the
Open Records Act (“the Act”), either when it denied a request for a record
restricted under KRS 227.370(2) or when it could not provide a record
not within its possession, custody, or control.

Open Records Decision

Kevin Swincher (“the Appellant”) submitted a request to the City for “all open
record reports, documentation and conclusive investigations related to the fire that
occurred at [his residence] on January 21, 2025.” In a timely response, the City
provided the Bowling Green Fire Department’s incident report and a series of emails
between the Appellant and a Code Compliance Officer. The City also provided a copy
of a letter explaining that the Fire Department “will not release any investigation
report of fire loss to the public” in accordance with KRS 227.370. Additionally, the
City stated it was withholding “an email chain between [its] Code Compliance and
Animal Protection Division Manager and [her supervisor] that was deemed to be
preliminary and [an] internal memorandum not used to make any final decisions and
was exempt per KRS 61.878(1)(i)” and “another email chain between [the same
manager and the] City Attorney that is exempt due to attorney client privilege
(KRS 61.878(1)(l)).” 1 Finally, the City stated the Fire Department “did not complete
the main investigation for this incident” and referred the Appellant to the FOIA page
for the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). This appeal
followed.

1 Because KRS 61.878(1)(j) exempts from disclosure “[p]reliminary recommendations, and
preliminary memoranda in which opinions are expressed or policies formulated or recommended,” it
would have been more appropriate for the City to cite that subsection instead of KRS 61.878(1)(i).
However, because the Appellant does not address his appeal to the claimed exemptions under
KRS 61.878(1)(i) or the attorney-client privilege, the Office makes no finding as to those exemptions.

The Appellant claims the City “has withheld critical evidence, including the
accelerant-dog results and the secondary investigation findings.” In response, the
City explains why those two records were not provided. According to the City, the
Fire Department began an investigation into the fire by conducting an initial visit
with a K9 unit, but it cancelled its investigation at the request of the city attorney
due to pending litigation between the Appellant and the City. The City referred the
matter to ATF to complete an external investigation.

The City states it did not provide the K9 report because it is exempt under
KRS 227.370(2), which provides that “[r]eports of investigations of fire losses
conducted by a fire department may, in the discretion of the chief of the fire
department, be withheld from the public.” 2 KRS 227.370(2) is incorporated into the
Act by KRS 61.878(1)(l), which exempts from disclosure “[p]ublic records or
information the disclosure of which is prohibited or restricted or otherwise made
confidential by enactment of the General Assembly.” See, e.g., OAG 84-19.
Accordingly, the City did not violate the Act when it withheld the K9 report related
to the initial investigation of the Appellant’s fire loss.

Regarding what the Appellant calls “the secondary investigation findings,” the
City asserts it does not possess the report from ATF and is “unaware of [its] findings
or contents.” Once a public agency states affirmatively that it does not possess a
record, the burden shifts to the requester to make a prima facie case that the record
exists 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 agency possesses the record, “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).
Here, the Appellant has not presented a prima facie case that the ATF report is in
the City’s possession, custody, or control. See, e.g., 22-ORD-040. Therefore, the Office
cannot find that the City violated the Act when it did not provide the report of ATF’s
investigation.

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].

2 The City additionally claims “the K9 report is not conclusive.”

Russell Coleman
Attorney General

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

Mr. Kevin Swincher
Hillary M. Hightower, Esq.
Ms. Jen Edwards