23-ORD-346
December 28, 2023
In re: Nicolas Horne/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) subverted the intent
of the Open Records Act (“the Act”), within the meaning of
KRS 61.880(4), when it delayed access to records for six months without
proper justification.
Open Records Decision
Nicolas Horne (“Appellant”) submitted a request to inspect “the body cam and
dash cam video of any officers responding to” a specific automobile accident on
November 6, 2023. In response, Metro cited KRS 61.872(5) and stated that because
of “the large volume of pending video requests . . . the requested video is otherwise
unavailable” and informed the Appellant that the records would be made available in
six months, on May 20, 2024. The Appellant then initiated this appeal, claiming
Metro has subverted the Act, within the meaning of KRS 61.880(4), due to its delay
in processing his request.
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 must
notify 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).If a person believes a public agency is subverting the intent of the Act, short of
denying the person’s request for inspection, he or she 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.” Metro’s proffered reason for
delaying access to the requested video is its large backlog of other requests to inspect
other video footage. It explains on appeal that every minute of video requires
approximately seven minutes to review and redact exempt information, and it
currently has a backlog of 1,325 requests for videos. However, Metro has not stated
why this particular video would take six months to review for exempt information
and produce the nonexempt portions. Rather, it admits that some requests can be
processed in as little as 30 minutes while others may take several weeks. It has not
stated that any one request for videos takes six months to review and redact. 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 Metro from the Act’s requirements due to its apparent lack of
resources. See, e.g., 23-ORD-328 (finding Metro subverted the Act by delaying access
to videos for six months because of its current backlog in processing requests for
video); see also 22-ORD-167 (finding Metro’s lack of resources to process requests does
not excuse it from the Act’s requirements). Accordingly, Metro subverted the intent
of the Act, within the meaning of KRS 61.880(4), when it delayed access to the
requested video for six months without proper justification.
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General#537
Distributed to:
Nicolas Horne
Alice Lyon
Annale Taylor
Natalie S. Johnson
Nicole Pang