26-ORD-044 – Tracy’s Landscaping Materials/Franklin County Fiscal Court

Opinion Content:

February 10, 2026

In re: Tracy’s Landscaping Materials/Franklin County Fiscal Court

Summary: The Franklin County Fiscal Court (“Fiscal Court”) initially
violated the Open Records Act (“the Act”) by failing to send a written
response within five business days of receiving the request per KRS
61.880(1), either confirming or denying the existence of certain records.
However, the Fiscal Court did not violate the Act in partially denying
the request because it provided all existing, responsive records it
possesses.

Open Records Decision

On December 31, 2025, Kenneth Tracy of Tracy’s Landscaping Materials (“the
Appellant”), submitted a request to the Fiscal Court for a copy of “all permit
applications and any permit approvals/denials (building, electric, P-card, T-card,
etc.), as well as other records pertaining to 525 Scruggs Lane S, Frankfort, Franklin
County, Kentucky 40601 from 2000 to present.” The Fiscal Court provided the
Appellant with a copy of responsive and nonexempt records electronically on January
9, 2026, but did not include a written response per KRS 61.880(1) stating whether
certain records did or did not exist. On January 13, 2026, the Appellant initiated this
appeal,1 acknowledging receipt of certain records, including the “local floodplain
permit” for the County, but claiming that “several records” were missing, such as
Page 4, Section 2, and Page 6 of the permit; a copy of the requested “T-card and P-
card”; and the “email and/or fax with the date and time when the electrical inspector
sent approval to the electric company to turn on electric services.” After this appeal
was initiated, the Fiscal Court sent a copy of pages 4 and 6 of the Floodplain
Development Application and a copy of the P-card from the Franklin County Health
Department to the Appellant on January 14, explaining that these records were
inadvertently omitted from the initial disclosure. With regard to any responsive

1 The January 13 email initiating this appeal on behalf of the Appellant came from the email account
of a Tera Hensley but identifies only “Tracy’s Landscaping Materials” as the signatory.

emails or facsimile transmissions, the Fiscal Court further advised that its diligent
search did not yield any.

Upon receipt of a request for public records, a public agency shall determine
within five business days “whether to comply with the request and shall notify in
writing the person making the request, within the five (5) day period of its decision.”
KRS 61.880(1). Here, the Fiscal Court sent a link to the Appellant that directed her
to existing, responsive records it was providing to her without further comment or
explanation. The Fiscal Court was required to explain that additional records do not
exist in the possession of the agency. “A public agency violates KRS 61.880(1) ‘if it
fails to advise the requesting party whether the’ records exist.” Univ. of Ky. v. Hatemi,
636 S.W.3d 857, 873 (Ky. App. 2021) (quoting 20-ORD-010). A public agency cannot
simply ignore portions of a request. See, e.g., 21-ORD-090; 25-ORD-027. When a
public agency denies a request under the Act, its written response 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).
Its response cannot be merely “limited and perfunctory.” Edmondson v. Alig, 926
S.W.2d 856, 858 (Ky. 1996). Accordingly, the Fiscal Court violated the Act by failing
to affirmatively state in the agency’s initial response whether certain records did or
did not exist.

However, the Fiscal Court remedied these deficiencies upon receipt of this
appeal. Because the Fiscal Court has now provided the Appellant with a copy of all
existing, responsive records in the possession of the agency, the issues regarding
those records are moot under 40 KAR 1:030 § 6.2 The remaining question is whether
the Fiscal Court erred in denying the Appellant’s request as to nonexistent records.
Once a public agency states affirmatively that a record does not exist, the burden
shifts to the requester to make a prima facie showing that the requested record exists.
See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005).
If the requester makes a prima facie showing 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 must possess the requested record is not adequate to make a prima facie
showing that the agency does, in fact, possesses the record. See, e.g., 22-ORD-040.
Rather, to make a prima facie case showing that the agency possesses or should
possess the requested record, the requester must provide a statute, regulation, or
factual support for that contention. See, e.g., 21-ORD-177; 11-ORD-074. Here, the
Appellant has not made a prima facie showing that the Fiscal Court possesses any
additional records. Accordingly, the Fiscal Court did not violate the Act when it was

2 Under 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.”

unable to provide the Appellant with a copy of the requested email or facsimile
transmission.

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/ Michelle D. Harrison
Michelle D. Harrison
Assistant Attorney General

Tera Hensley
Max Comley, Franklin County Attorney
Jeff Hancock, Franklin County Clerk
Tonya Gordon, Franklin County Clerk’s Office