25-ORD-046
February 14, 2025
In re: Jake Thompson/University of Louisville
Summary: The University of Louisville (“the University”) violated the
Open Records Act (“the Act”) when it delayed access to public records on
the basis that it was closed for winter break. The University did not
violate the Act when it did not provide records it does not possess.
Open Records Decision
On December 12, 2024, Jacob Thompson (“Appellant”) submitted a request to
the University seeking “the video and evidence collected” on October 4, 2024, related
to an investigation of the Appellant, and a video of the Appellant “in the police
station” on October 30, 2024. That same day, the University responded and notified
the Appellant that it would “follow up no later than” January 7, 2025, “with a
response or give [the Appellant] a detailed explanation of the delay and a timeframe
for response.” The University further explained that it would be “closed for winter
break” from December 14, 2024, to January 1, 2025. On January 7, 2025, the
University informed the Appellant that its response would now be issued on or before
January 13, 2025, due to “the weather closures.” This appeal followed.
Upon receiving a request to inspect records, a public agency “shall determine
within five (5) days, excepting Saturdays, Sundays, and legal holidays, 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). 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.Here, the University responded to the Appellant’s request within five business
days. But its initial response explained that it would not issue a substantive response
until January 7, 2025, because of its upcoming winter break. However, this response
did not cite KRS 61.872(5) or explain that responsive records were “not otherwise
available.” Instead, the University asserts that it did issue its response within five
business days because it was closed for winter break.
The Act does not provide that an Agency’s obligation to respond to a request is
tolled during a closure. Rather, the Act tolls an agency’s duty to “determine . . .
whether to comply with the request” only on “Saturdays, Sundays, and legal
holidays.” KRS 61.880(1). Here, the University did not “determine” whether it would
comply within five business days, but rather, stated it would respond to the request
later. While the University may consider itself “closed” during winter break, such
closures are not “legal holidays.” See KRS 2.110 (establishing “holidays, on which all
the public offices of this Commonwealth may be closed”); KRS 18A.190(1)
(establishing days on which “[s]tate offices shall be closed and state employees shall
be given a holiday”); see also 23-ORD-013 (finding responsive records were not
“unavailable” during the University’s winter break); 01-ORD-94 (finding “spring
break” for public schools did not qualify as a “legal holiday” under the Act).
Accordingly, the University could not rely on its self-declared winter break to
postpone its response to the Appellant’s request.1 The University therefore violated
the Act by improperly relying on its winter break to delay access to responsive
records.
On appeal, the University states that it possessed no video of the Appellant “in
the police station” on October 30, 2024, because “recordings from surveillance
cameras are only maintained for thirty days” and the Appellant did not submit his
request until December 12, 2024. 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 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 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
There is no dispute that the University received the Appellant’s request before it closed for winter
break. There may be instances in which an agency is actually closed, and therefore, does not receive a
request because no employees are present to receive it. The time for an agency to respond to a request
does not begin until after receipt of the request. KRS 61.880(1). But here, the University did actually
receive the request, and then attempted to grant itself an extension of time to respond beyond five
business days. This it cannot do.Here, the Appellant has not made a prima facie case that these records exist.
Moreover, the University explains that the requested footage was only maintained
for thirty days.2 Thus, even if the Appellant had made a prima facie case that the
records existed at some point, the University has adequately explained why it no
longer possesses responsive records. Accordingly, the University did not violate the
Act when it could not provide these records.3
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
Zachary M. Zimmerer
Assistant Attorney General
#035
Distributed to:
Jacob Ryan Thompson
Jennifer Oberhausen, Administrative Specialist, Office of University Counsel,
University of Louisville
Angela Curry, General Counsel and Vice President for Legal Affairs, University of
Louisville
Sherri Pawson, Senior Compliance Officer, University of Louisville
2
The applicable retention schedule provides that Universities must maintain surveillance videos
for seven days. See State University Model, Series U0132, “Surveillance and Access Security File,”
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
rsityModel.PDF (last accessed December 10, 2025).
3
The University made available some body-worn camera footage that was responsive to the first
portion of the Appellant’s request. The University stated that it partially redacted the footage under
KRS 61.878(1)(a). The Appellant has not challenged this portion of University’s response.