23-ORD-164
July 10, 2023
In re: Sydney LaRue/Louisville Metro Police Department
Summary: This Office is unable to find that the Louisville Metro Police
Department (the “Department”) violated the Open Records Act (“the
Act”) because the Office is unable to resolve the factual dispute raised
by the Appellant.
Open Records Decision
On May 31, 2023, Sydney LaRue (“Appellant”) submitted a request to the
Department for a copy of all “wearable video system,” i.e., body-worn camera, footage
related to a motor vehicle accident involving two individuals on a specific date. In a
timely response, the Department notified the Appellant that the records were “not
otherwise available” because of its backlog of requests for video records. Because “an
estimated 400” such requests for video records came before the Appellant’s, the
Department estimated it would require up to six months to process the request. The
Appellant then initiated this appeal claiming that the Department’s response was
inadequate.
After the appeal was initiated, the Department provided the Appellant with
the requested body-worn camera footage. Accordingly, to the extent the Appellant
claims the Department’s imposition of a six-month delay was unreasonable, that
issue is moot. See 40 KAR 1:030 § 6. However, the Appellant now claims the footage
she received “cut out at an inopportune time” and the Department told her “that there
was no more footage available because the officer had either stopped the camera from
recording or the battery had died.” The Appellant then asked that this Office review
this matter to “confirm that no more footage exists.”Once a public agency states affirmatively that it does not possess any
responsive records, the burden shifts to the requester to present a prima facie case
that the requested records do exist in the agency's custody or control. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). The Appellant
has not made a prima facie case that additional video footage should exist. To support
her claim, she provides only a copy of an accident report stating the body-worn camera
“was activated.” However, the Department claims it provided the footage to which the
report refers, and no additional footage exists. Simply put, given the constraints of
this Office’s review under KRS 61.880(2), it cannot decide factual disputes between
the parties, such as whether all responsive records have been provided. See, e.g.,
19-ORD-083; 03-ORD-61; OAG 89-81. Here, the Appellant asks the Office to make a
factual determination regarding the existence of additional records. Accordingly, the
Office cannot find that the Department violated the Act when it provided all
responsive records it claims to 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
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#243
Distributed to:
Sydney LaRue
Nicole H. Pang
Alice Lyon
Annale Taylor
Natalie S. Johnson