26-ORD-118 – Jennifer Simpson/Kentucky State Police

Opinion Content:

March 23, 2026

In re: Jennifer Simpson/Kentucky State Police

Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it did not provide videos it does not possess.

Open Records Decision

Jennifer Simpson (“Appellant”) submitted a request to KSP seeking all video
capturing an assault that occurred on October 9, 2024, at a particular location. In
response, KSP granted the request, providing three responsive videos. 1 This appeal
followed.

The Appellant alleges that KSP has not provided all videos that are responsive
to her request. Specifically, she alleges the videos she received show two additional
troopers at the scene. Therefore, there should be additional footage associated with
both troopers’ body-worn cameras and vehicle cameras.

Once a public agency states affirmatively that a record does not exist, the
burden shifts to the requester to make 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 record does 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).

On appeal, KSP acknowledges that the body-worn camera footage sought by
the Appellant should exist. According to KSP, the footage previously existed but was

1 KSP redacted some personal information under KRS 61.878(1)(a). The Appellant has not
challenged those redactions.

deleted. If a requester makes a prima facie case that a record should exist but the
agency is unable to locate the missing record, the requester is entitled to an
explanation of the reason why the record does not exist. See Eplion v. Burchett, 354
S.W.3d 598, 603 (Ky. App. 2011). Here, KSP explains that those troopers’ actions at
the time and location described by the Appellant “had been inadvertently categorized
as ‘No Police Action.’” Pursuant to KSP policy, body-worn camera footage that is
labeled as “No Police Action” is deleted after 30 days “and the subject [body-worn
camera] videos were purged per that schedule.” Therefore, KSP has explained why
its search did not result in the production of those videos. As such, KSP has satisfied
the requirements of the Act. 2 The Office cannot find that KSP violated the Act when
it did not produce a record it no longer possesses.

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 [email protected].

Russell Coleman
Attorney General

Zachary M. Zimmerer
Assistant Attorney General

Jenifer Simpson, Appellant
Nathan Goens, Assistant General Counsel, Justice and Public Safety Cabinet
Charles Bates, Staff Attorney III, Justice and Public Safety Cabinet

2 The Office’s review is limited to whether KSP violated the Act. See KRS 61.880(2)(a). The Office
has no jurisdiction to determine whether KSP has complied with the public records retention laws. See
KRS 171.410, et seq.

Sara Talarigo, Paralegal, Justice and Public Safety Cabinet
Ann Smith, Executive Staff Advisor, Justice