23-ORD-008
January 20, 2023
In re: Leonel Martinez/City of Owensboro
Summary: Under 40 KAR 1:030 § 4, the Attorney General shall not
reconsider a prior decision rendered under the Open Records Act (“the
Act”). This Office will not reconsider 16-ORD-114, in which it found the
City of Owensboro (“the City”) did not violate the Act when it did not
provide a record that does not exist in its possession.
Open Records Decision
Leonel Martinez (“Appellant”) submitted a request to the City to inspect a
“video” related to his arrest and conviction. However, the Appellant has previously
submitted two requests to inspect this exact record, the denials of which have been
the subject of previous Open Records Decisions by this Office. See 22-ORD-207; 16-
ORD-114. As it did previously, the City denied the request because the record does
not exist in its possession. This appeal followed.
Under 40 KAR 1:030 § 4, “[t]he Attorney General shall not reconsider a
decision rendered under the Open Records Law.” In 20-ORD-148, this Office found
that a second appeal between the same parties concerning the exempt status of a
record would amount to improper reconsideration when “the facts and issues [were]
identical to those in the previous decision.” In 16-ORD-114, this Office found the City
did not violate the Act when it did not produce the record because the record does not
exist. The Appellant provides no facts or issues here that distinguish this appeal from
the facts and issues at issue in 16-ORD-114. If the Appellant disagreed with this
Office’s decision in 16-ORD-114, his recourse was to appeal that decision to the circuit
court. See KRS 61.880(5). He may not, however, seek this Office’s reconsideration by
submitting a duplicate request for the same record and appealing the City’s denial of
the duplicate request. Accordingly, the appeal is dismissed.A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#013
Distributed to:
Leonel Martinez
Kimberly A. Tignor
Mark Pfeifer