"An attorney for Breonna Taylor's family has filed a lawsuit claiming Louisville Metro Police may have given the public 'misinformation'

about the existence of some body camera footage from before and after the raid of Taylor's home.

"The lawsuit, filed against LMPD in Jefferson Circuit Court on Thursday, claims police are also improperly withholding public records that would prove whether there are additional body camera videos from the night Taylor was shot and killed by officers.

"The lawsuit is requesting a judge to order the department to immediately turn over information requested under Kentucky's open records law.

"The public, according to the lawsuit, has 'an uncompromised right to know whether undisclosed body camera footage exists, or otherwise previously existed, from LMPD Axon Cameras which related to the events surrounding the death of Breonna Taylor.'"

This may be a tough legal battle to win thanks to a 2005 Kentucky Supreme Court opinion, Bowling v Lexington Fayette Urban County Government.

https://casetext.com/case/bowling-v-lexington-fayette-urban-cty-gov

In that case the Court determined that "The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives. *Therefore, we hold that before a complaining party is entitled to such a hearing, he or she must make a prima facie showing that such records do exist*."

Although some critics view Bowling v LFUCG as a textbook case of bad facts making bad law — insofar as it involved a death row inmate's unverified claim that the Commonwealth withheld additional records from him in its criminal prosecution — the case is regularly cited in open records disputes arising from the requester's unsubstantiated belief that the agency possesses additional public records but is concealing those records.

It is unclear in this case whether the Taylor family's can make a "prima facie showing" that additional undisclosed body cam video exists.

In contrast, LMPD has acknowledged the existence of records relating to the Explorer Scout investigation that were withheld from The Courier Journal in responding to an open records request relating to that program.

https://www.courier-journal.com/story/news/2021/05/16/lmpd-explorer-pro…