22-ORD-239
November 7, 2022
In re: Perry Probus/Louisville Metro Police Department
Summary: The
Louisville
Metro
Police
Department
(“the
Department”) violated the Open Records Act (“the Act”) when it failed
to respond to a request for records. The Department did not violate the
Act when it did not provide records that do not exist in its possession.
Open Records Decision
On September 17, 2022, inmate Perry Probus (“Appellant”) submitted a
request to the Department for copies of “[b]ody camera footage from [a] search of” a
specific residence on April 10, 2015, and the “[w]arrant issued to execute the search
of the same residence.” Having received no response to his request by October 17,
2022, the Appellant initiated this appeal.
Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] days . . . after the receipt of any such request
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
Department did not respond to a request within five business days, and thus violated
the Act.
On appeal, the Department states that no responsive records exist. Once a
public agency states affirmatively that a record does not exist, the burden shifts to
the requester to present a prima facie case that the requested record does or should
exist. See Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). 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 wasadequate.” 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 established a prima facie case that responsive
records exist. Therefore, the Department did not violate the Act when it did not
provide the requested records. Furthermore, even if the Appellant had established a
prima facie case, the Department explains it “did not receive body cameras until the
Summer of 2015” and therefore could not have created body-camera footage on April
10, 2015. Thus, even if the Appellant had established a prima facie case that
responsive records should exist, the Department has adequately explained why they
do not. Therefore, the Department did not violate the Act.
A party aggrieved by this decision may appeal it by initiating 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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#393
Distributed to:
Perry Probus #261864
Jacinta Scruggs
Alice Lyon
DeAndrea Baltimore
Natalie S. Johnson