26-ORD-087 – Lori Davenport/City of Ludlow

Opinion Content:

March 12, 2026

In re: Lori Davenport/City of Ludlow

Summary: The City of Ludlow (“the City”) violated the Open Records
Act (“the Act”) by failing to send a written response within five business
days of receiving the request, as required by KRS 61.880(1). However,
the City did not violate the Act by providing the requester with copies of
all existing, responsive records it possesses.

Open Records Decision

On November 20, 2026, the Appellant submitted a request 1 asking for “access
to and copies of all records in the possession of [the City] that document any
incentive pay, additional compensation, stipends, bonuses, special pays, or
extra pay of any kind provided to Scott Smith from his date of hire with the [City]
to present” (emphasis in original). 2 On December 22, 2025, having received no
response to her request, the Appellant initiated this appeal.

Upon receipt of a request, a public agency “shall determine within five (5) days,
excepting Saturdays, Sundays, and legal holidays,” 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.” The City admits it failed to send a written response within
five business days of receiving the Appellant’s November 20 request. Accordingly, the
City violated the Act when it did not respond timely to the request.

1 The request at issue here is a more specific follow-up to the request which was the subject of 25-
ORD-311. After that decision was issued, the City provided certain “wage reports” to the Appellant.

2 The Appellant noted this request includes but is not limited to: (1) “Records showing the type,
amount, and date of any incentive, extra, or bonus payments”; (2) “Documentation, memos,
authorizations, contracts, agreements, or policies related to such payments”; and (3) “Payroll records
that reflect these payments.”

On appeal, the City maintains the Appellant’s November 20 request does not
implicate any records beyond those previously provided. The Appellant also has not
identified any specific records that she believes the City has improperly withheld.
Regarding the suggestion that additional records exist in the City’s possession, the
City Attorney emphasizes the Appellant “offers no support for this allegation, other
than her bare assertion that such records ‘probably’ exist.” In support of its position
that no additional records exist, the City explains:

[It] offered no bonus or other compensation to Mr. Smith as
remuneration for his employment with the City. Such bonuses would be
illegal. The City, after a public hearing and a vote of City Council, settled
a threatened lawsuit with Mr. Smith earlier this year, which payment
was separate and apart from his current employment with the City. If
Ms. Davenport is seeking records relating to that settlement, she should
state so plainly in her Request. As written, Ms. Davenport’s Request
does not appear to include those records.

Once a public agency states affirmatively that certain records do not exist, the
burden shifts to the requester to make a prima facie case that the requested records
do or should exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d at
341. If the requester is able to make a prima facie case that the records do 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).

According to the Appellant, “[i]t is highly improbable that an employee
receiving any form of compensation beyond standard salary (such as ‘incentive pay,
stipends, bonuses,’ etc.) would not have supporting documentation, memos, or
detailed payroll records beyond a general annual wage report.” The Appellant further
claims the City’s “failure to identify and produce” any of the categories of records that
she requested “strongly suggests” the City has either failed to conduct a “reasonable
and good-faith search” or improperly withheld nonexempt records.

Here, the Appellant has not made a prima facie case that the City possesses
any responsive records that were not provided. Rather, the Appellant believes it is
“highly improbable” that the City possesses additional, responsive records and its
failure to identify and produce additional records necessarily means it either did not
conduct a proper search or is withholding such records. But that bare allegation offers
no evidence proving that the requested records exist. A requester’s bare assertion
that a public agency “possesses a requested record is insufficient to establish a prima
facie case that the agency, in fact, possesses it.” 25-ORD-063; 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 point to some statute, regulation, or factual

support for this contention.” Id.; see, e.g., 21-ORD-177; 11-ORD-074. Because the
Appellant has provided only a bare assertion, not proof, she has not made a prima
facie case that the City possesses additional responsive records. Accordingly, the
Office cannot find the City violated the Act when it did not provide nonexistent
records. See 26-ORD-336; 25-ORD-063.

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

Lori Davenport, Appellant
Laurie Sparks, City Clerk
Sarah Thompson, Mayor
Patrick Gote, Attorney
Zach Smith, City Attorney
Michelle Eviston, City Attorney