24-ORD-137
June 12, 2024
In re: Makeda Charles/Louisville Metro Police Department
Summary: The Louisville Metro Police Department (“the Department”)
did not violate the Open Records Act (“the Act”) when it did not provide
records it does not possess.
Open Records Decision
Makeda Charles1 (“Appellant”) submitted a request for body camera footage of
the Department’s “property room officers destroying [her] belongings in February of
2022.” In response, the Department explained that “[c]ivilian staff” in the
Department’s “Evidence and Property Unit do not have body cameras, and therefore
no responsive bodycam footage exists.” This appeal followed.
On appeal, the Department maintains it does not possess body camera footage
responsive to the Appellant’s request. 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 makes 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).
1
The Office takes notice of its decision in 24-ORD-135 involving another appeal initiated by the
Appellant. Based on the record developed in that appeal, the Office found that the Louisville Regional
Airport Authority did not violate the Act when it denied a request for records because the Appellant
is not a resident of the Commonwealth. The Act only gives a “resident of the Commonwealth” the
statutory right to demand access to public records. KRS 61.872(2)(a). It does not, however, prohibit
nonresidents from obtaining public records. Rather, “[t]he official custodian may require the applicant
to provide a statement in the written application of the manner in which the applicant is a resident of
the Commonwealth under KRS 61.870(10)(a) to (f).” Id. (emphasis added). Here, the Department has
not challenged the Appellant’s status as a “resident of the Commonwealth.” Thus, that issue is not
properly before the Office and its decision in 24-ORD-135 is not dispositive here.Here, the Appellant attaches an email sent by an employee of the Louisville
Regional Airport Authority referencing body camera footage that might contain
mention of the Appellant’s belongings. But this email does not constitute a prima
facie case that the Department possesses body camera footage of “property room
officers destroying [the Appellant’s] belongings.” Moreover, even if the Appellant had
made a prima facie case that the Department possesses responsive body camera
footage, the Department has explained that it only retains body camera footage for
“the applicable retention period,” which, here, was 60 days.2 The Appellant’s request
for body camera footage came over two years after the alleged footage would have
been created. Thus, the Department did not violate the Act when it did not provide
records it does not possess.
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#233
Distributed to:
Alice Lyon
Nicole Pang
Natalie S. Johnson
Annale Taylor
2
See
Series
L6962,
Louisville
Metro
Retention
Schedule,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/Local%20Record…
eMetroRecordsRetentionSchedule.pdf (last accessed June 12, 2024).