22-ORD-244
November 15, 2022
In re: Perry Probus/LaGrange Police Department
Summary: The LaGrange Police Department (the “Department”)
violated the Open Records Act (“the Act”) when it failed to respond to a
request within five business days. 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 16, 2022, inmate Perry Probus (“Appellant”) submitted a
request to the Department for all evidence or other materials, including body-worn
camera footage, related to his criminal case that was initiated in 2015. On October 2,
2022, the Appellant resubmitted his request and reminded the Department that he
had yet to receive any response to his first request. On October 12, 2022, having
received no response from the Department, the Appellant initiated this appeal.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). Here, the Department violated the Act when it did not respond to the
Appellant’s request within five business days.1
On appeal, the Department states that all records it possesses related to the
Appellant’s criminal matter were previously provided during criminal discovery at
his trial. The Department says it will provide another copy of the responsive records
1
The Department does not claim that it submitted a timely response to either of the Appellant’s
requests or that it did not receive either request.to the Appellant upon payment of the appropriate copying fee.2 However, the
Department claims body-worn camera footage does not exist because the Department
did not obtain such cameras until 2016, the year after the Appellant’s arrest.
Once a public agency states affirmatively that it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that
requested records do or should exist in the possession of the public agency. 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 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).
Here, to make his prima facie case, the Appellant merely claims the
Department “should have requested body camera footage that was worn by” officers
from a different police department that he claims was involved in the investigation.
But the Act does not require the Department to ask other public agencies to provide
records in their possession to respond to a request submitted to the Department. See,
e.g., 22-ORD-219; 18-ORD-221; 12-ORD-098; 99-ORD-202. The Appellant has not
established a prima facie case that the Department possesses any body-camera
footage. Accordingly, the Department did not violate the Act when it did not provide
to the Appellant any records that it does not possess.3
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
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 OAGAppeals@ky.gov.
2
The fact the Appellant previously obtained these records though criminal discovery does not
alleviate the Department of its duty under KRS 61.880(1) to provide nonexempt records responsive to
a request made under the Act. However, KRS 61.872(3)(b) does authorize the Department to require
the Appellant to submit the appropriate copying and mailing fees before providing the records. Because
the Department will make the records available upon receipt of the copying and mailing fees, it has
not actually denied the request and it is unnecessary to examine the Department’s statement about
criminal discovery further.
3
The Appellant also claims the Department violated his Fourth Amendment rights and makes other
allegations against the Department. The Office has historically found that an open records appeal is
not the appropriate forum to decide issues other than violations of the Act. See, e.g., 22-ORD-206; 21-
ORD-001; 19-ORD-040.Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#395
Distributed to:
Perry Probus, #261864
Bruce Goodfleisch
Greg Collett