26-ORD-004 – Shane White/Jefferson County Public Schools

Opinion Content:

January 9, 2026

In re: Shane White/Jefferson County Public Schools

Summary: The Office cannot find that the Jefferson County Public
Schools (“JCPS”) violated the Open Records Act (“the Act”) because the
Office cannot find that: (1) JCPS possesses or should possess additional
records that it has not provided; (2) JCPS improperly deflected its
responsibility to another agency; or (3) JCPS failed to address each
category of records requested in its responses or that JCPS otherwise
violated the Act.

Open Records Decision

Shane White (“Appellant”) submitted a series of requests to JCPS related to a
specific incident that occurred on JCPS property involving his vehicle.1 JCPS granted
his request and, “to the extent they exist and are in JCPS’s possession,” attached the
records. JCPS also advised the Appellant to contact the Louisville Metro Fire
Department, which is the agency investigating the fire, and provided its contact
information. The Appellant submitted a follow up request for “all available security
camera footage” related to the specific incident. JCPS denied this request because it
does “not possess records responsive to this request.”2 The Appellant initiated this
appeal on three bases: (1) JCPS possesses or should possess additional records that
it has not provided; (2) JCPS improperly deflected its responsibility to another
agency; and (3) JCPS failed to address each category of records requested.

1 The incident involved a shed that was destroyed by fire, near which the Appellant’s vehicle was
parked, resulting in the “destruction” of his vehicle.
2 Specifically, JCPS stated it does “not have security footage of the shed” involved in the specific
incident.
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Once a public agency states affirmatively that no further responsive 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 the requested records exist, such as the existence of a statute
or regulation requiring the creation of the requested 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 should exist is insufficient to make a prima facie
case that the records actually do exist. See, e.g., 22-ORD-040.

Here, to make a prima facie case that JCPS possesses or should possess
additional records that it did not provide, the Appellant asserts that the fire relating
to his request “occurred on school grounds during a school event” and that if JCPS
does not possess additional records it indicates a “failure to maintain legally required
records, or [a]n improper withholding of responsive records.” As proof, the Appellant
states that, during a telephone call, a specific JCPS “Safety Administrator” told him
“that the video evidence from the area had been collected by upper administration for
review.” Here, the Appellant’s bare assertions fail to point to a statute, regulation, or
some other factual support establishing a prima facie case that the requested
surveillance footage of the specific incident existed at the time of his request. At best,
the Appellant has provided some evidence that some, possibly unrelated, footage
existed. Accordingly, the Office cannot find that JCPS violated the Act when it did
not provide a record that it claims does not exist.

Turning now to the Appellant’s claim that JCPS improperly deflected its
responsibility to another agency, “[i]f the person to whom the application is directed
does not have custody or control of the public record requested, that person shall
notify the applicant and shall furnish the name and location of the official custodian
of the agency’s public records.” KRS 61.872(4). However, the Office has found that
KRS 61.872(4) applies only if the correct custodian of the requested records is known
to the agency to which the request is directed. See, e.g., 16-ORD-034, 11-ORD-024,
06-ORD-040, 05-ORD-190. Here, JCPS did not possess the record the Appellant
requested, and notified him of the agency investigating the incident related to his
request. The Appellant presented no proof that JCPS knew of any other person within
its agency, or elsewhere, that had custody and control of the record he requested. As
such, the Office cannot find JCPS violated the Act when it provided the name and
26-ORD=004

contact information of the public agency investigating the fire that is the subject of
the Appellant’s request.

Lastly, the Appellant claimed JCPS violated the Act when it “did not issue
individual determinations for each category of requested records, and did not cite any
statutory exemption authorizing nondisclosure, as required by KRS 61.880(1)” as
well as that “JCPS has cited no exemption under KRS 61.878 for withholding any
category of requested records.” However, JCPS did not purport to withhold any
category of records, but claimed to provide all responsive records in its possession. A
statement from a public agency that it has disclosed all responsive records is
“tantamount to an affirmative statement that the remaining records requested do not
exist.” 04-ORD-040.

Moreover, the Office cannot resolve a factual dispute between the parties to an
appeal. See, e.g., 22-ORD-010 (declining to resolve a factual dispute that the records
received were different from the records requested). Here, the Appellant submitted a
request to JCPS containing several subparts, which the Appellant supplemented with
a request for “all available security camera footage.” JCPS responded that, “to the
extent they exist and are in JCPS’s possession,” it was providing the records. The
Appellant then sought clarification of JCPS’s response. JCPS responded that it does
“not possess records responsive to this request” and does “not have security footage
of the shed” related to this incident. As such, it seems that there is a factual dispute
between the parties as to the responsiveness of the records JCPS provided to the
Appellant. The Office is unable to resolve this factual dispute, and so cannot find that
JCPS violated the Act when it provided records it claims are responsive to all parts
of the Appellant’s request.3

In sum, the Office cannot find that: (1) JCPS possesses or should possess
additional records that it has not provided; (2) JCPS improperly deflected its
responsibility to another agency; or (3) JCPS failed to address each category of records
requested in its responses. The Office therefore cannot find that JCPS violated the
Act.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from

3 Moreover, JCPS’s responses suggest that all records responsive to the Appellant’s request have
been provided and that, if requested records were not provided, it is because those records do not exist.
As discussed above, the Appellant failed to make a prima facie case that JCPS possesses any additional
records responsive to his request.
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the date of this decision. Under 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/ Matthew Ray
Matthew Ray
Assistant Attorney General

Shane White
Brian Yearwood
Corrie Shull
C. Tyson Gorman
Amanda Herzog