23-ORD-011
January 26, 2023
In re: Crystal Young/Clark County Public School District
Summary: The Clark County Public School District (“the District”) did
not violate the Open Records Act (“the Act”) when it could not provide
access to records that do not exist.
Open Records Decision
On December 14, 2022, the District received a request from Crystal Young
(“Appellant”) to inspect certain surveillance video recordings from Conkwright
Elementary School that were recorded on various dates from October 4 to November
30, 2022. In a timely response, the District stated that “one video (or series of videos)”
from October 24, 2022, was available for inspection, but the other requested
recordings were unavailable because “the District’s surveillance videos are deleted
after fourteen (14) days unless saved within that period of time.” The District
explained that the October 24 footage was available because it had been “specifically
retained for further review.” This appeal followed.
Once a public agency states affirmatively that records do not exist, the burden
shifts to the requester to present a prima facie case that the requested records exist
or should exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333,
341 (Ky. 2005). Here, the Appellant argues the requested footage from November 29
and 30, 2022, should still exist because the District received her request less than 14
days after the video was recorded. On appeal, however, the District explains that the
surveillance footage at Conkwright Elementary is “automatically deleted” after 14
days “unless specifically retained.” Thus, a District employee must take affirmative
action within 14 days of the date of the recording to prevent its automatic deletion
from occurring.Under KRS 160.705(2)(a), video “recordings of school activities” must be
retained “for a minimum period of one (1) week.” However, if the recordings “include,
or allegedly include injury to students or school employees,” they must be retained
“for a minimum of one (1) month.” KRS 160.705(2)(b). The applicable records
retention schedule and the District’s own records management policy provide for the
same retention period. However, if the footage pertains to an incident under
“investigation,” it must be retained until the “investigation and legal activity” are
completed.1 Accordingly, the applicable retention schedules authorized the District
to destroy any video recordings after one week, unless they included or allegedly
included an injury or related to an incident under investigation. The District explains
it retained the October 24 footage because that footage related to the investigation of
a complaint by the Appellant. However, the remaining requested footage was
automatically deleted after 14 days because it did not relate to an investigation or an
alleged injury.
Nevertheless, the Appellant claims the District was obligated to retain any
footage she requested, including the footage from November 29 and 30, 2022, if it still
existed at the time the District received her request. However, the record reflects the
District received the Appellant’s request on December 14, 2022, the fourteenth day
after November 30, 2022. The Act allows a public agency five business days to process
an open records request after receiving it. See KRS 61.880(1). Here, the District
received a request for recordings maintained on a school’s video equipment that had
already deleted those recordings by the time the District received the request.
Moreover, even if the Appellant is correct that the District should have ordered
the school to cease its automatic deletion of videos immediately upon receiving the
Appellant’s request, that does not mean the District actually did so. The Appellant
has not presented a prima facie case that the requested recordings still exist and are
available for inspection, and the District has explained the recordings do not exist
because they have been destroyed. See Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky.
App. 2011) (holding that, when records no longer exist because they have been
destroyed, the requester is entitled to a written explanation that the records were
destroyed). Accordingly, the District 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
1
“Retain Master Copy one (1) week. Destroy if there is no recording that includes, or allegedly
includes, injury to students or school employees. Retain Master Copy one (1) month for those
recordings that include, or allegedly include, injury to students or school employees. Then destroy. . .
. If there is an incident being investigated, retain until investigation and legal activity is complete,
then destroy.” See Public School District Records Retention Schedule, “Facilities Surveillance
Video/Audio
Recordings,”
Series
L6463,
available
at
https://kdla.ky.gov/records/recretentionschedules/Documents/Local
Records
Schedules/PublicSchoolDistrictRecordsRetentionSchedule.pdf (last accessed Jan. 18, 2023).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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#485
Distributed to:
Ms. Crystal Young
Rebecca G. McCoy, Esq.
Superintendent Dustin Howard
Chairman William Taulbee