Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Commonwealth's Attorney, 42<nd> Judicial District, violated the Open Records Act in responding to Michael L. Burman's November 18, 1997, request for a copy of the videotape of a car accident involving his clients, William Salter, Jr., and Victoria Salter, which occurred on September 20, 1997, near Calvert City, Kentucky. The tape was originally in the custody of the Kentucky State Police, but was subsequently turned over to the Commonwealth's Attorney, Michael D. Ward, for prosecutorial purposes. At some point, the tape came into the possession of WPSD-TV Channel 6 in Paducah, and a portion of the tape was shown on a newscast.
In his November 25 response to Mr. Burman's request, Mr. Ward stated that he would allow Mr. Burman clients, the victims in the accident, to view the videotape in his office, but that he did not "have the capacity to copy the tape, . . . [or] believe that a copy should be released . . . to be used in a civil action." For the reasons which follow, we conclude that Mr. Ward's response violated KRS 61.874(1).
In 94-ORD-47, the Attorney General specifically addressed the issue raised in this appeal. We begin by noting that KRS 61.874(1) provides:
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate.
In construing KRS 61.874, this office observed:
It is abundantly clear from the language of this statute that one having inspected records is entitled to copies of them upon payment of a reasonable fee. [Footnote omitted.] That fee must not exceed the actual cost of copying, and may not include the cost of staff required. The right to copies of public records is thus correlative to the right to inspect those records. Accordingly, a public agency cannot on the one hand release public records for inspection by a requester, and on the other hand deny the requester the right to copy these records. See, e.g., OAG 89-27; OAG 89-43; OAG 89-66. The public records are either available for inspection and copying, or, under one or more of the exceptions codified at KRS 61.878(1)(a) through [(1)], they are not.
94-ORD-47, p. 3; see also, 94-ORD-104.
While it is certainly true that KRS 61.878(1)(h) permits the Commonwealth's Attorney to withhold "records or information . . . pertaining to criminal investigations or criminal litigation" before, during, and after an enforcement action, Mr. Ward does not assert that the videotape should be withheld from inspection, only from copying. Based on 94-ORD-47, and the authorities cited therein, we find that this position is untenable.
Nor do we believe that the Commonwealth's Attorney's inability to duplicate the tape excuses him from his obligations under the Act. KRS 61.874(1) also provides that:
If the applicant desires copies of public records other than written record, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records ; however, the custodian shall ensure that such duplication will not damage or alter the original records.
(Emphasis added.) Mr. Ward may make arrangements to duplicate the videotape himself, or he may permit the Salters to duplicate it after taking reasonable precautions to ensure that the videotape is not damaged. Inasmuch as he has consented to their inspection of the tape, he is also required to furnish them with a copy of the tape or permit them to make a copy.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.