24-ORD-131
May 31, 2024
In re: Jacob Ryan/Louisville Metro Police Department
Summary: The Louisville Metro Police Department (the “Department”)
violated the Open Records Act (“the Act”) when it issued responses that
failed to explain how the cited exemption applied to the records withheld
and when it failed to properly invoke KRS 61.878(1)(h) to withhold
records. The Department also violated the Act when it denied a request
for records as unreasonably burdensome. However, the Department did
not violate the Act when it could not provide copies of records that do
not exist within its possession.
Open Records Decision
Jacob Ryan (“Appellant”) submitted two requests for records to the Department
for records related to the search of cell phone devices. First, the Appellant requested
any “database, spreadsheet, or other record detailing any/all cell data extraction
using” a specific mobile device forensic tool. Second, the Appellant requested all
search warrants executed by the Digital Forensic Unit “related to any request for
data extraction from a cellular device” for a specific time period. The Department
denied both requests, contending that “the records [he] requested are exempt from
disclosure under KRS 61.878(1)(h).” This appeal followed.
First, when a public agency denies a request under the Act, it must give “a brief
explanation of how the exception applies to the record withheld.” KRS 61.880(1). The
agency’s explanation must “provide particular and detailed information,” not merely
a “limited and perfunctory response.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
1996). “The agency’s explanation must be detailed enough to permit [a reviewing]
court to assess its claim and the opposing party to challenge it.” Ky. New Era, Inc. v.
City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013).1
1 An agency is not “obliged in all cases to justify non-disclosure on a line-by-line or document-by-
document basis.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). Rather,
“with respect to voluminous [open records] requests . . . it is enough if the agency identifies the
particular kinds of records it holds and explains how [an exemption applies to] the release of eachOn appeal, the Department admits “that both of the responses initially supplied
to [the Appellant] violated KRS 61.880(1) by not explaining how the cited exemptions
applied to the records withheld.” As a result, the Appellant could not assess the
propriety of the Department’s invocation of KRS 61.878(1)(h). Thus, the Department
violated the Act.
The Department, on appeal, continues to deny the Appellant’s requests but
abandons its reliance on KRS 61.878(1)(h) as to the first request. Instead, the
Department now denies the first request, stating that “no responsive records 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 makes 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, because the Department did not make this claim until after the appeal
was initiated, the Appellant did not have an opportunity to present a prima facie case
that the records do or should exist within the Department’s possession. Nevertheless,
even if the Appellant had made a prima facie case, the Department sufficiently
explains why it does not possess responsive records. The first request sought any
“database, spreadsheet, or other record detailing [any] cell data extraction using” a
specific mobile device forensic tool. The Department has explained that it “does not
track which software programs were used to extract data from cellular devices, and
there are multiple programs available.” Thus, the Department has sufficiently
explained on appeal why it does not possess any records responsive to the Appellant’s
first request.
Turning now to the Department’s invocation of KRS 61.878(1)(h), it states that
“[r]ecords of law enforcement agencies or agencies involved in administrative
adjudication that were compiled in the process of detecting and investigating
statutory or regulatory violations if the disclosure of the information would harm the
agency by revealing the identity of informants not otherwise known or by premature
release of information to be used in a prospective law enforcement action or
administrative adjudication.” KRS 61.878(1)(h). The Supreme Court of Kentucky has
held that when a public agency relies on KRS 61.878(1)(h) to deny inspection, it must
assertedly [sic] exempt category.” Id. (discussing the “law enforcement exception” under
KRS 61.878(1)(h)). “[I]f the agency adopts this generic approach it must itself identify and review its
responsive records, release any that are not exempt, and assign the remainder to meaningful
categories. A category is meaningful if it allows the court to trace a rational link between the nature
of the document and the alleged” exemption. Id. (quotation omitted).“articulate a factual basis for applying it, only, that is, when, because of the record’s
content, its release poses a concrete risk of harm to the agency in the prospective
action.” City of Fort Thomas, 406 S.W.3d at 851.
Here, the Department initially claimed that “the records [he] requested are
exempt from disclosure under KRS 61.878(1)(h).” On appeal, the Department
explains that “[t]he release of all search warrants submitted to DFU would inevitably
mean the release of active and/or sealed search warrants, which would compromise
the integrity of an ongoing investigation by identifying witnesses, and by allowing
witnesses and suspects to destroy any additional types of evidence sought.”
The Department’s initial responses and its response on appeal do not
“articulate a factual basis” for a “concrete risk of harm” to it. Instead, the Department
describes vague hypothetical scenarios that might result if it released “all search
warrants.” The Department does not describe the actual content of the records or how
that content, if released, would cause an actual harm. There is no evidence, based on
the Department’s statements, that it ever reviewed the records responsive to the
Appellant’s request to determine whether their release would pose a concrete risk of
harm to any of its investigations. Furthermore, because KRS 61.878(1)(h) only
applies to “a prospective law enforcement action” the Department also failed to
explain that any of the withheld records contain any “information to be used in a
prospective law enforcement action or administrative adjudication.” Instead, it issued
“limited and perfunctory” responses both initially and on appeal. Edmondson, 926
S.W.2d at 858. Accordingly, the Department failed to properly invoke
KRS 61.878(1)(h) to withhold records, and thus, violated the Act.
Finally, on appeal, the Department also relies on KRS 61.872(6) to deny the
second request. KRS 61.872(6) contains two separate but interrelated grounds to
deny a request. The more common of the two applies when “the application places an
unreasonable burden in producing records.” Id. This portion of KRS 61.872(6) is
specific to the request, or “application,” if it alone places an unreasonable burden on
the agency. In making such a determination, the Office considers the number of
records the request implicates, whether the records are in a physical or electronic
format, and whether the records contain exempt material requiring redaction. See,
e.g., 97-ORD-088 (a request implicating thousands of physical files stored in several
locations throughout the state and each file needed to be reviewed for redactions
pursuant to state and federal law was unreasonably burdensome). An agency can also
establish an unreasonable burden if it does not catalog its records in such a manner
that they can be searched using a keyword. See, e.g., 96-ORD-042 (unreasonable
burden found where the agency’s thousands of files needed to be reviewed to
determine if the records were responsive to the keywords in the request).In support of its claimed exemption, the Department claims it “would have to
individually contact detectives for each case to determine[ ] whether the warrants
were sealed; whether the associated cases were still open; and whether any warrants
required redaction to avoid compromising an ongoing enforcement action.” The
Department further states that, during the time period specified in the second
request, it “has examined more than 1800 devices, and most of those involved search
warrants.” Although the number of records at issue is not the only factor the Office
considers, it is the most important one. See e.g., 22-ORD-182. The Office has
previously found that searching and sorting through 5,000 emails to separate exempt
emails from nonexempt emails was not an unreasonable burden, when it was not
clear the emails contained information that was required to remain confidential by
law. See, e.g., 22-ORD-255; 24-ORD-008 (finding the agency had “not sustained by
clear and convincing evidence that” reviewing 2,607 emails for exempt material
placed “an unreasonable burden on the agency”). While the Department may have
been able to sustain the need to delay access to those records under KRS 61.872(5), it
certainly has not sustained by clear and convincing evidence that the task places such
an unreasonable burden on the agency that the request could be fully denied under
KRS 61.872(6). Moreover, the Department has not estimated how many of the “more
than 1800 devices” examinations it conducted involved search warrants. Accordingly,
the Department has not sustained by clear and convincing evidence that the
Appellant’s request places an unreasonable burden on it.
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.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General#229
Distributed to:
Jacob Ryan
Alice Lyon
Nicole Pang
Natalie S. Johnson
Annale Taylor