RENDERED: MAY 1, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1356-MR
JESSICA THORNTON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 24-CI-005979
LOUISVILLE METRO GOVERNMENT APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, ECKERLE, AND MOYNAHAN, JUDGES.
ECKERLE, JUDGE: Appellant, Jessica Thornton (“Thornton”), seeks review of
the Opinion and Order of the Jefferson Circuit Court granting summary judgment
to Appellee, Louisville Metro Government (“Louisville Metro”) on Thornton’s
complaint under Kentucky’s Open Records Act (“the KORA”). After careful
review, we find summary judgment to be improper, as a genuine issue of material
fact exists regarding the alleged email attachments missing from Louisville Metro’s responses to Thornton’s open record requests. Accordingly, we reverse
the Trial Court’s Order of summary judgment and remand for further proceedings.
Factual and Procedural Background
This appeal arises from a complaint filed by Thornton on August 23,
2024, to enforce provisions of the KORA, Kentucky Revised Statutes (“KRS”)
61.870 et seq., against her former employer, Louisville Metro. After being
terminated by Louisville Metro in October of 2023, Thornton filed a series of open
records requests seeking a variety of documents, emails, and, relevant to this
appeal, records sent by email attachment. Through these record requests, Thornton
sought evidence that she had been wrongfully terminated by Louisville Metro
based on a pretext that she had retaliated against an employee for his protected use
of leave under the Family Medical Leave Act. To that end, Thornton requested a
number of personnel records; in particular, she sought monthly lists of employees
thought to be abusing or at risk of using sick leave that were sent to supervisors by
email attachment.
Although Louisville Metro provided responses to each of her record
requests, Thornton alleged in her complaint that she knew of additional documents
that had existed during her time as an employee and that Louisville Metro had not
provided, including the email-attached lists of employees. In response to that
complaint, Louisville Metro filed a Motion to Dismiss under Kentucky Rule of
-2- Civil Procedure (“CR”) 12.02 on September 12, 2024. Noting that Louisville
Metro had offered appendices of additional evidence outside the pleadings to
support its motion, the Trial Court properly treated the dismissal motion as one for
summary judgment under CR 56. In a brief, two-page dispositive Order ruling on
the merits of the motion, the Trial Court found that Thornton had filed a number of
open record requests with Louisville Metro, to which Louisville Metro “provided
numerous documents which it affirmatively represent[ed] to be all of the non-
exempt records in its possession.” Order at 2. The Trial Court held that this
production discharged any further duty of Louisville Metro under the KORA and
that the onus then fell on Thornton to present affirmative evidence that would be
sufficient to make a prima facie showing of the existence of additional records that
Louisville Metro wrongly failed to produce. The Trial Court concluded:
The Court is satisfied that, even when viewing the evidence in the light most favorable to Ms. Thornton, she has failed to do so. There is nothing in the record to reasonably or fairly suggest that Louisville Metro has done other than act in good faith to produce that which is required in the manner required. In the absence of affirmative proof to the contrary, merely asserting otherwise does not create a genuine issue of material fact. Moreover, and insofar as the parties have had a reasonable opportunity to present all pertinent material, it is neither necessary nor appropriate to permit additional discovery in this matter. To do so would [sic] under the circumstances would place an undue burden on Louisville Metro.
-3- Id. The Trial Court also stated that this Order would be final and appealable. This
appeal followed.
Standard of Review
In reviewing a Trial Court’s grant of summary judgment, our Supreme
Court has noted that “[s]ummary judgment is improper unless it would be
‘impossible for the respondent to produce evidence at trial warranting a judgment
in his favor and against the movant.’” Welch v. Am. Publ’g Co. of Kentucky, 3
S.W.3d 724, 729-30 (Ky. 1999) (quoting Steelvest v. Scansteel Service Center, 807
S.W.2d 476, 483 (Ky. 1991)). In considering a motion for summary judgment,
“trial judges are to refrain from weighing evidence at the summary judgment
stage[.]” Id. Instead, “[t]he inquiry should be whether, from the evidence of
record, facts exist which would make it possible for the non-moving party to
prevail.” Id. As we have observed, Kentucky legal precedent requires the non-
moving party to respond with specificity and an affirmative defense, to wit:
It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. “[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to require resort to surmise and speculation.” “‘Belief’ is not evidence and does not create an issue of material fact.” Furthermore, the party opposing summary judgment “cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but
-4- must present affirmative evidence in order to defeat a properly supported motion for summary judgment.
McAlpin v. American Gen. Life Ins. Co., 601 S.W.3d 188, 193 (Ky. App. 2020)
(internal quotation marks and citations omitted).
“Because summary judgment involves only legal questions and the
existence of any disputed material issues of fact, an appellate court need not defer
to the trial court’s decision and will review the issue de novo.” Lewis v. B & R
Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted). However, our
Supreme Court has also clarified:
[E]ven though an appellate court always reviews the substance of a trial court’s summary judgment ruling de novo, i.e., to determine whether the record reflects a genuine issue of material fact, a reviewing court must also consider whether the trial court gave the party opposing the motion an ample opportunity to respond and complete discovery before the court entered its ruling. . . . The trial court’s determination that a sufficient amount of time has passed and that it can properly take up the summary judgment motion for a ruling is reviewed for an abuse of discretion.
Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010).
Analysis
In analyzing the Trial Court’s grant of summary judgment, we must
rely upon “the substantive law’s identification of which facts are critical and which
facts are irrelevant.” Kearney v. University of Ky., 638 S.W.3d 385, 397 (Ky.
2022) (citations omitted). Thus, if there are any issues of material fact resulting
-5- from Thornton’s claim that Louisville Metro violated the KORA by allegedly
failing to turn over or withholding documents, those issues must relate to facts that
Thornton is “able to prove.” Id. Although Thornton’s complaint raised allegations
that a number of responsive documents had been improperly withheld by
Louisville Metro, in whole or in part, she concedes that the existing record
contained no affirmative evidence to substantiate most of these allegations at the
time that the Trial Court issued its Order.
There is no significant dispute by either party that Louisville Metro
provided hundreds of pages of records responsive to Thornton’s multiple open
records requests. However, Thornton identifies a material dispute over two
requests for the “emails and documents” identifying individuals who “put in sick
leave abuse” between 2014 and 2019. Record (“R.”) at 2, 19-34. Although
Louisville Metro produced at least four emails that appear to address the specific
documents sought, Thornton notes that the subject emails show evidence of
attached files that Louisville Metro did not include in its first response. Thornton
also alleges that Louisville Metro’s response to her second request, which was
tailored specifically to obtain those attachments, also failed to include the
requested records. In response to Louisville Metro’s Motion to Dismiss, which
Thornton noted was more properly a request for summary judgment, Thornton
offered a sworn affidavit attesting to her knowledge that the reports of sick leave
-6- abuse existed and were originally included as attachments to the four emails
produced. R. at 95-96. Although Thornton did not attach to her response the
emails that Louisville Metro had supplied to her, she did identify them by date and
sender.
At issue in this appeal is the nexus between the findings necessary for
a Court to grant a party’s motion for summary judgment and the burden shifting
required under the KORA when parties contest the existence of a record. More
particularly, we must determine whether the Trial Court provided an adequate
opportunity for discovery and response by Thornton to the motion for summary
judgment. In the past, our Supreme Court has held that extended periods of lapsed
time or thorough discovery in a case made summary judgment appropriate despite
an appellant’s claim that it had not received sufficient opportunity to develop its
case. See Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010) (finding a motion for
summary judgment was properly before the Trial Court when the plaintiff had
failed to identify an expert witness in 17 months since filing a malpractice suit,
despite conceding that an expert would be necessary to prove his claim).
However, no similar lapse of time exists in this case. Thornton filed
her Verified Complaint against Louisville Metro on August 23, 2024. Louisville
Metro moved to dismiss the complaint and filed a Memorandum in Support of
Defendant’s Motion to Dismiss on September 12, 2024, with exhibits showing
-7- partial file names provided to Thornton in response to each of her open record
requests that it asserted showed it had met its obligations under the KORA.
Thornton filed her response and the accompanying affidavit on October 11, 2024.
On October 22, 2024, in its reply to Thornton, Louisville Metro also
filed the Affidavit of Linton Hauss (“Hauss”), an Open Records Specialist with the
Records Compliance Division of Louisville Metro. Hauss’s affidavit described the
general process by which Louisville Metro responds to open records requests,
including the technical manner by which it searches for responsive documents, and
confirmed that this process was used for all of Thornton’s requests. Notably,
Hauss does not profess that he personally performed any of the described steps for
any of Thornton’s requests and does not specifically address the requests that
Thornton asserts had missing records. Moreover, his affidavit only addresses
email searches. It is entirely silent on whether this search process also produces
email attachments or whose responsibility it is to provide any responsive
attachments to each email. R. at 104-05. Louisville Metro’s reply is similarly
mute on this specific issue of email attachments.
Thornton argues on appeal that the Trial Court did not allow her
sufficient opportunity for discovery or development of evidence prior to granting
the motion for summary judgment, particularly given the short timeline between
the filing of the complaint and the grant of summary judgment. Louisville Metro
-8- contends that the Trial Court properly granted summary judgment, and that further
discovery would not have changed the outcome of its decision. In support of their
positions, both parties cite to Bowling v. Lexington-Fayette Urban County Gov’t,
which forms the cornerstone of the limited precedent addressing disputes about the
existence of records under the KORA versus their exemption. 172 S.W.3d 333,
341 (Ky. 2005). As the Kentucky Attorney General previously observed,
Kentucky’s courts have struggled with the dilemma posed when agencies deny a record’s existence rather than claiming a statutory exemption as the basis for denial. The courts recognized, on the other [sic] hand, that “allowing public agencies to avoid judicial review by denying a record’s existence . . . remove[s] accountability from the open records process,” and, on the other, that public agencies may be unreasonably burdened by “the unfettered possibility of fishing expeditions for hoped-for but nonexistent records. . . .” Bowling v. Lexington- Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005). The courts resolved the dilemma by determining that “before a complaining party is entitled to . . . a hearing [to disprove the agency’s denial of the existence of records,] he or she must make a prima facie showing that such records do exist.”
Cabinet for Health and Family Services v. Todd County Standard, Inc., 488
S.W.3d 1, 3-4 (Ky. App. 2015) (quoting Attorney General’s Opinion 11-ORD-
074).
Louisville Metro contends, and the Trial Court agreed, that Thornton
did not make a prima facie showing of the allegedly missing records, including the
email attachments containing sick-leave-abuse reports that she sought. She offered
-9- an affidavit – a sworn averment – attesting to her own personal knowledge. In
asserting its position, Louisville Metro cites the holding in Bowling, as well as
other opinions of the Attorney General interpreting that case, which found that “the
existence of a statute, regulation, or case law directing the creation of the requested
record creates a presumption of the record’s existence[.]” Id. at 4. While
Louisville Metro interprets the case law to mean that a prima facie showing must
be made in this manner and that affidavits alone are insufficient, we do not find our
precedent so restrictive.
A review of Bowling requires a more nuanced analysis. In that case,
Bowling submitted affidavits from law enforcement officers asserting that
documents had existed in the past. However, this showing that the records had
once existed was rebutted by Lexington-Fayette Urban County Government’s
policies, which were also referenced by officers in Bowling’s own affidavits, that
those types of records would be purged after five years unless they became part of
an active investigation. Bowling, 172 S.W.3d at 342. Moreover, the appellant in
Bowling had the opportunity to obtain extensive, sworn testimony from numerous
current and former law enforcement officers that satisfied the Court that the
appellee had complied with its obligations under the KORA and with the Court’s
orders. Id. It is in this context that we found that the Bowling Trial Court properly
-10- denied Bowling’s request for an evidentiary hearing and quashed further
subpoenas to other government agencies.
Louisville Metro next cites University of Kentucky v. Hatemi to
advance both its contention that Thornton failed to make the required prima facie
showing and that, even if she did, Louisville Metro rebutted that showing by
offering evidence of a good faith search to locate the alleged records. 636 S.W.3d
857 (Ky. App. 2021). However, it is not immaterial to our analysis of Louisville
Metro’s argument that the requester in that case, Dr. Lachin Hatemi, “seem[ed] to
have known little about the nature” of the group of faculty advisors from whom he
requested meeting minutes. Id. at 866. As a result of his lack of familiarity with
the informal nature of the group, Dr. Hatemi’s assertion that the University failed
to produce records that should exist carried little weight.
More particularly in Hatemi, the parties engaged in discovery,
including taking depositions of numerous University officials and group members
who all agreed that the group of advisors had never been established as a formal
committee, never met regularly, and rarely provided any sort of written reports or
even meeting summaries to the Dean that they advised. Id. Notably, our review in
Hatemi primarily focused on the attempts made by the Official Records Custodian
of the University of Kentucky to respond to Dr. Hatemi’s request, including
contacting the appropriate officials to ask whether any meeting minutes or notes
-11- were ever kept and confirming that they had searched their records for any
documents that might be responsive. Id. at 866-67. All of the discovery performed
substantiated the University’s assertion that it had conducted more than a cursory
search for records that were of questionable existence.
Ultimately, we find important distinctions between the precedents of
Bowling and Hatemi and the case sub judice. While those cases involved
requesters unaffiliated with the public agency or working group in question,
Thornton was an employee of Louisville Metro for nine years. Not only did she
provide a sworn affidavit attesting that she had personally reviewed many of the
requested email attachments while serving in that role, but Thornton also identified
four emails provided by Louisville Metro that showed documents had been
attached when the emails were sent. From the lists of document names that
Louisville Metro offered as support for its Motion to Dismiss, it is impossible to
tell whether any of the documents supplied were the original attachments to those
emails. Thornton has supplied evidence that they are not. This proffer is more
than a bare assertion of belief as required to respond to a motion for summary
judgment, and it is sufficient to establish a prima facie showing that the email
attachments did, at least at one point in time, exist.
On the other hand, Louisville Metro has failed to represent that these
email attachments were specifically searched for and to identify the person who
-12- may have conducted that search. Unlike the open record disputes in Bowling and
Hatemi, the Trial Court granted summary judgment solely on the basis of an
affidavit that failed to address whether a good faith search was actually conducted
for the allegedly missing email attachments. Because this affidavit was filed as
part of Louisville Metro’s reply to Thornton’s response to the Motion to Dismiss,
Thornton had no opportunity to respond to this bare-bones description of a search
until the filing of this appeal. She also had no opportunity to issue interrogatories
or take deposition testimony regarding the sufficiency of any search that was made
for the requested email attachments or any other allegedly withheld records.
Notably, Louisville Metro’s brief entirely ignores the question of email
attachments, despite Thornton’s clear statement that the attachments were the heart
of the dispute on appeal.
Given this silence, we find that there remains an issue of material fact
over whether Louisville Metro performed a proper, good faith search in responding
to Thornton’s request for the email attachments related to abuse of sick leave. In
this light, the Trial Court’s very brief conclusion that there was no evidence to
support a need for further discovery or inquiry into the affidavit that Thornton
produced is not supported by the facts, early procedural posture, or sound legal
principles, and it thus appears arbitrary. Accordingly, we must find that the Trial
Court abused its discretion by prematurely granting summary judgment without
-13- further proceedings while Louisville Metro had not yet described a sufficient
search for those records as required under Bowling and Hatemi. To the extent that
discovery regarding the alleged email attachments provides affirmative evidence of
the other allegedly missing records that Thornton describes, Louisville Metro must
similarly meet its burden of showing reasons that those records could not be
produced, if indeed it continues to be unable to produce them. Although summary
in nature, judgments are not to be issued summarily. More factual discovery, and
more analysis of the claims and documents provided, remains needed here.
Conclusion
For the foregoing reasons, we reverse the Trial Court’s Opinion and
Order granting summary judgment and remand for further proceedings consistent
with this Opinion, including discovery and future motion practice.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
David Borum Natalie Johnson Louisville, Kentucky Jefferson County Attorney’s Office Louisville, Kentucky
-14-