22-ORD-268
December 15, 2022
In re: Josh Wood/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) violated the Open
Records Act (“the Act”) when it failed to respond within five business
days to three of seven requests it received, and when it invoked
KRS 61.872(5) seven times to delay inspection of records, without either
notifying the requester of the earliest date on which records would be
available or giving a detailed explanation of the cause of the claimed
delay.
Open Records Decision
Josh Wood (“Appellant”) brings this appeal against Metro regarding seven
requests he submitted to inspect records. In all seven requests, he sought records
related to various investigations conducted by the Public Integrity Unit (“PIU”),
including copies of any associated video footage. On appeal, the Appellant claims
Metro failed to respond to some of his requests within five business days. Moreover,
when Metro did respond to each of his requests, it invoked KRS 61.872(5) to delay
access to the requested video footage. The Appellant claims Metro has subverted the
Act, within the meaning of KRS 61.880(4), due to its delay in processing his requests.
See, e.g., 22-ORD-167 (finding Metro subverted the Act in failing to respond timely to
multiple requests to inspect records).
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 if such
records are “in active use, storage, or not otherwise available.” KRS 61.872(5). A
public agency invoking KRS 61.872(5) to delay access to responsive records mustnotify the requester of the earliest date on which the records will be available and
provide a detailed explanation for the cause of the delay. Id. However, the Act only
permits an agency to delay access “[i]f the public record is in active use, in storage or
not otherwise available.” Id. (emphasis added).
When a person believes a public agency is subverting the intent of the Act,
short of denying the person’s request for inspection, that person may appeal to this
Office as if his or her request had been denied. KRS 61.880(4) establishes those
potential violations, which include “delay past the five (5) day period described in”
KRS 61.880(1) and “excessive extensions of time.” As will be discussed below, Metro’s
proffered reason for delaying access to requested videos is the result of a large backlog
of similar requests to inspect video footage. In other words, Metro’s delay in
processing requests for video footage rests more on a lack of resources to review
records responsive to numerous requests than the unavailability of the records
themselves. As before, the Office is sympathetic to Metro’s situation, but this Office
has no discretion to excuse violations of the Act. See 22-ORD-167.
For the following reasons, Metro subverted the Act, within the meaning of
KRS 61.880(4), seven times in response to the Appellant’s seven requests.
Specifically, the Appellant submitted, and Metro received, request no. 22-5689
on June 9, 2022, but Metro did not issue a written response until six business days
later, on June 17, 2022. Because Metro did not issue a written response within five
business days, it violated KRS 61.880(1). Moreover, although it provided responsive
records and considered the request “closed,” it did not provide copies of the requested
video footage. When the Appellant repeatedly asked Metro to respond to his request
for video footage, Metro eventually stated on November 11, 2022, “Due to the large
volume of pending video requests, please allow up to at least 6 months for [Metro] to
prepare and provide these records.” Metro said it would notify the Appellant “[i]f [the
video recordings] become available earlier.” This response did not comply with
KRS 61.872(5) because it did not provide the Appellant with the earliest date on
which the video could be inspected. Instead, Metro stated it would take “up to” six
months. Thus, Metro’s failure to respond to the request within five business days and
its failure to notify the Appellant of the earliest date on which records would be
available constitutes delay past the five-business-day period and an excessive
extension of time. See KRS 61.880(4); see also 22-ORD-167.
The Appellant submitted, and Metro received, request no. 22-5690 on June 9,
2022, but Metro did not issue its written response until over a month later, on July29, 2022. When it did respond, Metro invoked KRS 61.872(5) and stated that, “due to
the large volume of pending video requests, at this time, the requested video is
otherwise unavailable. Please allow up to at least 6 months to prepare and provide
any records we may possess.” Metro again stated it would provide the requested video
recordings to the Appellant, “[i]f they become available earlier.” This response did not
comply with KRS 61.872(5) because it did not provide the Appellant with the earliest
date on which the video could be inspected. Instead, Metro stated it would take “up
to” six months. With respect to the records within the requested PIU file other than
video, Metro stated they would be available on or before August 4, 2022. However,
Metro did not actually provide those records until more than a month after that, on
September 7, 2022. Thus, Metro’s failure to respond to the request within five
business days and failure to meet its own deadline to produce records subverted the
Act within the meaning of KRS 61.880(4). See, e.g., 22-ORD-167.
The Appellant submitted, and Metro received, request no. 22-9919 on October
6, 2022, but Metro did not issue its written response until October 26, 2022, or 14
business days later. When it did respond, Metro stated the “PIU file [the Appellant]
requested has been obtained and will need be reviewed and redacted and will be
released as [the records] are processed. The audio and video portions of this request
will also need to be redacted. Pursuant to KRS 61.872(5) and due to the large volume
of pending video requests, please allow up to at least 6 months to prepare these
records.” Metro also stated it would notify the Appellant if the audio and video
recordings became available earlier than that. Like its disposition of the Appellant’s
first request, Metro’s failure to respond to the request within five business days and
its failure to notify the Appellant of the earliest date on which records would be
available constitute delay past the five-business-day period and an excessive
extension of time. See KRS 61.880(4); see also 22-ORD-167.
The Appellant submitted, and Metro received, the last four requests—nos. 22-
9933, 22-9936, 22-9937, and 22-9950—on October 7, 2022. Unlike the Appellant’s first
three requests, Metro did respond to each of these requests within five business days.
However, as it did before, Metro advised that, “due to the large volume of pending
video requests, at this time, the requested video is otherwise unavailable. Please
allow up to at least 6 months to prepare and provide any records we may possess. If
they become available earlier,” Metro said, it would notify the Appellant. Metro did
not notify the Appellant of “the earliest date” on which the requested records would
be available or give a detailed explanation for the cause of delay. KRS 61.872(5).
Accordingly, Metro subverted the intent of the Act, within the meaning ofKRS 61.880(4), when it caused an excessive delay in making the requested records
available for inspection.
A party aggrieved by this decision may appeal it by initiating 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
#426
Distributed to:
Josh Wood
Alice Lyon
DeAndrea Baltimore
Natalie S. Johnson
Tauheedah El-Saadiq