23-ORD-130
June 12, 2023
In re: Carl Ball/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it did not provide records that do not exist.
Open Records Decision
Carl Ball (“Appellant”) submitted a request to KSP for the body camera and
dashboard camera footage from a traffic stop that took place on December 2, 2022.
KSP denied his request because no responsive records exist. This appeal followed.
On appeal, KSP maintains that the requested footage does not exist. 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 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).
Here, the Appellant has not established a prima facie case that the requested
records exist. Therefore, KSP did not violate the Act when it did not provide the
requested records. Further, even if the Appellant had established a prima facie case,
KSP sufficiently explains on appeal why the records requested by the Appellant do
not exist. According to KSP, neither of the troopers involved in the stop had body
worn cameras issued to them at the time of the stop. And the vehicle that was used
in the stop was not equipped with a dashboard camera at the time of the stop. Thus,
even if the Appellant had established a prima facie case that responsive records
should exist, KSP has adequately explained why the records do not exist. Therefore,
KSP did not violate the Act.A party aggrieved by this decision may appeal it by initiating an 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 emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#189
Distributed to:
Carl Edward Ball
Michelle Harrison
Stephanie Dawson
Abbey Hub