25-ORD-070
March 20, 2025
In re: Brennan Cain/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it denied inspection of a video recording of
a field sobriety test because KRS 189A.100 requires the video to remain
confidential under these facts. KSP also did not violate the Act when it
did not provide records it does not possess.
Open Records Decision
Brennan Cain (“the Appellant”) submitted a request to KSP to inspect all video
footage from “the investigation of a fatal DUI crash that occurred on” December 21,
2024. The Appellant specified that he sought body-worn camera and dash camera
footage from “troopers responding and investigating the incident” and “video of the
full process of transporting” the suspects “to jail.”1 In response, KSP stated that
responsive video footage was exempt under KRS 189A.100(2)(b)5., which makes
visual and audible recordings of vehicle pursuits, traffic stops, and field sobriety tests
confidential, and thus, exempt under the Act. This appeal followed.
KRS 189A.100 establishes the procedure officers are to use when
administering field sobriety tests to persons suspected of driving under the influence
of alcohol. Law enforcement officers may record the suspect while administering
these tests. KRS 189A.100(2)(a). However, such footage “shall be used for official
purposes only.” KRS 189A.100(2)(b)5. The statute provides only three “official
purposes” for which the footage may be used: (a) viewing “in court”; (b) viewing “by
the prosecution and defense in preparation for a trial”; and (c) viewing “for purposes
of administrative reviews and official administrative proceedings.” Id. Otherwise, the
1
The Appellant also requested a variety of other records related to the investigation of the crash
scene. KSP advised that it was not in possession of any additional records responsive to the Appellant’s
request. The Appellant has not challenged this portion of KSP’s response.recordings shall be considered “confidential records.” Id.2 The Office has previously
held that such recordings are entirely confidential, and that a law enforcement
agency is not authorized to release any portion of such videos. See, e.g., 93-ORD-133;
10-ORD-088; 19-ORD-102; 21-ORD-102; 23-ORD-025. The Act exempts from
inspection any records that are confidential under state statute. KRS 61.878(1)(l).
Here, KSP explains that it possesses a video of a “suspect’s refusal to submit
to a sobriety test.” The Appellant does not dispute KSP’s description of the content of
this video nor does he assert that he is requesting this video for an “official purpose,”
as defined in KRS 189.100(2)(b)5. Thus, KSP did not violate the Act when it withheld
this video under KRS 189A.100(2).
Next, the Appellant argues that KRS 189A.100 does not exempt videos relating
to suspect transport3 and crash reconstruction. In response, KSP explains that it does
not possess responsive crash reconstruction video. 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).
Here, the Appellant has not established a prima facie case that crash
reconstruction video exists. Moreover, KSP explains that crash reconstruction is done
at a later date “and is not generally done by the arresting officer at the scene.” Thus,
even if the Appellant had established a prima facie case that the video should exist,
KSP has explained why it does not possess crash reconstruction video from the
“troopers responding and investigating the incident.” Therefore, KSP 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
2
The unauthorized release of such video footage constitutes the crime of official misconduct in the
first degree. KRS 189A.100(2)(b)7; see also KRS 522.020.
3
On appeal, KSP states that it has made available “a single, in-car video depicting the arrested
suspect in the policer cruiser that is not implicated under KRS 189A.100.” Thus, any dispute as to the
denial of that video is moot. See 40 KAR 1:030 § 6.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
#073
Distributed to:
Brennan Cain
Samantha A. Bevins, Staff Attorney III, Office of Legal Services, Justice and Public
Safety Cabinet
Stephanie Dawson, Official Custodian of Records, Public Records Branch, Kentucky
State Police
Mitchel S. Hazelett, Police Lieutenant, Kentucky State Police
Zack Morris