23-ORD-328
December 13, 2023
In re: Ryan Van Velzer/Louisville Metro Police Department
Summary: The Louisville Metro Police Department (“the Department”)
subverted the intent of the Open Records Act (“the Act”), within the
meaning of KRS 61.880(4), when it delayed access to requested records
for six months without proper justification.
Open Records Decision
On October 18, 2023, Ryan Van Velzer (“Appellant”) submitted a request to the
Department for “all video including surveillance footage in the homicide case of an
[identified person] on November 25, 2022.” In response, the Department invoked
KRS 61.872(5) by stating “the requested video is otherwise unavailable” and it needed
six months to provide the requested records “due to the large volume of pending video
requests.” This appeal followed.
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). A public agency may also delay access to responsive records beyond
five business days if such records are “in active use, storage, or not otherwise
available.” KRS 61.872(5). A public agency that invokes KRS 61.872(5) to delay access
to responsive records must also notify the requester of the earliest date on which the
records will be available, and provide a detailed explanation for the cause of the delay.
If a requester believes the agency’s delay is unreasonable, he or she may seek
the Attorney General’s review by alleging the agency subverted the intent of the Act
“past the five (5) day period described in” KRS 61.880(1). See KRS 61.880(4). In
determining how much delay is reasonable, the Office has considered the number ofrecords the requester has sought, the location of the records, and the content of the
records. See e.g., 22-ORD-176; 01-ORD-140; OAG 92-117. Weighing these factors is a
fact-intensive analysis. For example, this Office has found that a four-month delay to
provide 5,000 emails for inspection was not reasonable under the facts presented. See,
e.g., 21-ORD-045. However, the Office has also found that a six-month delay was
reasonable to review 22,000 emails for nonexempt information. See, e.g., 12-ORD-197.
Ultimately, the agency carries the burden of proof to sustain its actions.
KRS 61.880(2)(c).
Here, the Appellant submitted a request to the Department, and in response,
the Department invoked KRS 61.872(5) to delay the Appellant’s access to the public
records for six months. The only reason the Department gave for the delay was “the
large volume of pending video requests.” On appeal, the Department explains that it
currently “employs four video technicians” and those employees have other
responsibilities with respect to preparing video files in addition to fulfilling requests
under the Act. The Department describes in great detail the process it has in place
for reviewing and preparing responsive video records to fulfill requests under the Act,
and it currently has “1390 open requests for video records.” Specifically, the
Department estimates it currently takes approximately seven minutes to review and
redact one minute of video. The Department further explains that the Appellant’s
request “contains 382 data files,” but does not explain what it means by “data files.”
It is not clear from this record how many minutes of video are implicated by the
Appellant’s request or how long it would take the Department to process it.
Although numerous unrelated simultaneous requests to inspect records may
place a strain on a public agency, the Office has previously noted that “[n]either the
volume of unrelated requests nor staffing issues justifies a delayed response.” See 19-
ORD-188 n.1; see also 22-ORD-167. Here, the Department’s only justification for
stating the Appellant’s request cannot be processed for six months is the existence of
other requests received before his. The Department admits that some requests can
take as little as 30 minutes, and others can take as long as a week, depending on how
many videos are implicated by the request. Thus, no single request takes the
Department six months to complete. Rather, it is just not currently capable of
processing the volume of requests it receives. The Department has not carried its
burden under KRS 61.880(2)(c) to substantiate why a delay of six months is necessary
to provide “approximately 382 data files” to the Appellant.1 Accordingly, the
1
For example, according to the Department’s calculation, if each of the “382 data files” was actually
a 10-minute video file, it would take the Department approximately 446 hours to review and redact at
a pace of seven minutes per one minute of video. The result would be almost 12 weeks of full-time,Department subverted the intent of the Act, within the meaning if KRS 61.880(4),
when it delayed access to records beyond the five-day period under KRS 61.880(1).
A party aggrieved by this decision may appeal it by initiating an 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.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#509
Distributed to:
Ryan Van Velzer
Alice Lyon
Annale Taylor
Natalie S. Johnson
Nicole Pang
dedicated work on just this one request, presuming a 37.5-hour work week. While that would certainly
be burdensome, it does not come close to six months, and there is no evidence in the record suggesting
the 382 data files are all 10 minutes long.