26-ORD-161 – Travon Byers/Kentucky State University

Opinion Content:

April 13, 2026

In re: Travon Byers/Kentucky State University

Summary: Kentucky State University (“the University”) violated the
Open Records Act (“the Act”) when it failed to give a sufficiently detailed
explanation of how an exception to the Act applied to the records
withheld. However, the University did not violate the Act when it could
not provide video footage that no longer exists.

Open Records Decision

On July 15, 2025, at 8:52 p.m., Travon Byers (“the Appellant”) submitted a
request to the University for all records relating to an incident in which a named
individual’s car tires were slashed on July 14, 2025, including “[a]ll video footage,
including but not limited to security camera footage or any other recordings, related
to the incident.” In a timely response issued on July 23, 2025, 1 the University denied
the request under KRS 61.878(1)(h) because “the release of video footage and other
records at this time would constitute a premature release of information that could
harm the prospective law enforcement action.” However, the University added,
“[o]nce KSU Campus Police (or any other appropriate law enforcement agency) has
taken final action in this matter, the records will become open for inspection.” The
University stated it would “retain” the Appellant’s request and “KSU Police ha[d]
been advised to provide the records to [the Appellant] promptly after such final action
is taken.”

On or about January 29, 2026, the Appellant inquired as to the status of his
request. On February 20, 2026, the University provided its records related to the
incident, including a report indicating that surveillance footage was reviewed by
campus police during the investigation. The University stated, “No documents [were]
being withheld.” After further inquiries from the Appellant about the video footage,
the University determined that “the video evidence was deleted as part of the regular

1 Because the Appellant submitted his request after business hours on July 15, 2025, it is deemed
to have been received on the next business day, July 16.

retention loop/cycle” after police had concluded it did not “provide sufficient evidence
to identify” the suspects. This appeal followed.

The Appellant asks the Office to determine whether the University complied
with the Act “in its handling of the request.” Upon receiving a request to inspect
public records, a public agency must determine within five business days whether to
grant the request or deny it. KRS 61.880(1). If the agency chooses to deny the request,
it “shall include a statement of the specific exception authorizing the withholding of
the record and a brief explanation of how the exception applies to the record
withheld.” Id. An agency response denying a request for records must explain the
denial by “provid[ing] 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).

Here, the University initially denied the Appellant’s request under
KRS 61.878(1)(h), which exempts from disclosure “[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 could pose an articulable risk of harm to the agency or
its investigation by revealing the identity of informants or witnesses not otherwise
known or by premature release of information to be used in a prospective law
enforcement action or administrative adjudication.” In City of Fort Thomas v.
Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), the Supreme Court of Kentucky
rejected the argument “that the mere fact that a law enforcement action remains
prospective is enough to establish that disclosure of anything from a law enforcement
file constitutes ‘harm’ under the exemption.” Instead, the agency must “identif[y] the
particular kinds of records it holds and explain[ ] how the release of each assertedly
exempt category would harm the agency in a prospective law enforcement action.” Id.
at 851. Here, however, the University denied the Appellant’s request without
identifying the types of records it possessed and articulating the particular risk of
harm associated with each category of records. Thus, the University violated the Act
in its initial response to the request. See, e.g., 26-ORD-055.

The Appellant also asks the Office to “[d]etermine whether responsive records
were properly preserved after the request was submitted,” particularly regarding the
video footage. On appeal, the University reiterates “that the video no longer exists as
it was deleted as part of its regular cycle of retention after law enforcement reviewed
the video.” The University further states, “Processes have been put in place to ensure
that all videotapes and records are maintained and preserved if subject to an ongoing
open records request, so that this will not happen again.” Once a public states
affirmatively that records no longer exist, the burden shifts to the requester to make

a prima facie case that the records do 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 should still exist, then the agency must
provide “a written explanation for their nonexistence.” Eplion v. Burchett, 354 S.W.3d
598, 603 (Ky. App. 2011) (quoting 10-ORD-078). And, if the requester has made a
prima facie case, “the agency may also be called upon to prove that its search was
adequate.” City of Fort Thomas, 406 S.W.3d at 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341).

Here, the Appellant asserts the surveillance footage should still exist because
it was the subject of a pending open records request. The General Assembly has
recognized “an essential relationship between the intent of [KRS Chapter 61] and
that of KRS 171.410 to 171.740, dealing with the management of public records,”
including records retention schedules. KRS 61.8715. In some instances, an applicable
retention schedule may create “a limited duty to preserve surveillance video records
for purposes of pending litigation or pending open records requests.” 20-ORD-067. In
the State University Model Records Retention Schedule, such a duty is imposed upon
certain record series, including body-worn camera recordings and personal
information security breach records. 2 However, surveillance camera footage is subject
to no such requirement. 3 Moreover, even when the retention schedule imposes this
limited duty, “the Act itself does not independently require a public agency to
preserve records beyond the duration of the applicable retention schedule.” Id.

Therefore, despite the prior representations by the University that the
requested records would be provided to him after final action was taken, the
Appellant has not made a prima facie case that the surveillance footage still exists.
See, e.g., 23-ORD-090 (finding no violation of the Act when an agency stated that a
record “was disposed of” and the requester did “not cite to any authority, such as the
[agency’s] record retention schedule, that would require the [agency] to retain and

2 See State University Model Records Retention Schedule, “Body-Worn Camera Recordings
(Audio/Video),” Series U1313 (“Evidentiary recordings used in any investigation, pending
investigation, litigation or open records requests must be kept until all investigative or legal activity
is completed.”); id., “Personal Information Security Breach Investigation/Notification File,” Series
U0138 (“If any investigation, litigation, or open records request involving these records is taking place
or is pending, maintain until all investigative or legal activity is completed, then destroy.”), available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Records%20Schedules/KYUnive
rsityModel.PDF (last accessed March 25, 2026).
3 See id., “Surveillance and Access Security File,” Series U0132 (“Retain video/audio recordings for
seven (7) days, then destroy or overwrite.”), available at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Records%20Schedules/KYUnive
rsityModel.PDF (last accessed March 25, 2026).

possess the record”). Accordingly, the University did not violate the Act when it could
not provide records that no longer exist. 4

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 [email protected].

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Travon Byers
Nicole M. Sergent, Esq.

4 The Appellant further asks the Office to require the University “to disclose any remaining
responsive records related to the video footage.” However, the University stated it had provided all
records responsive to the request, and the Appellant has not made a prima facie case that additional
responsive records exist. The Appellant also asks the Office to “[r]equire disclosure of any records
relating to the deletion of the video, including retention policies, deletion logs, or other documentation
reflecting when the footage was removed from the system.” These documents, however, are outside the
scope of the Appellant’s request.