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 Pulaski County 911 Center violated the Open Records Act in responding to Lexington Herald-Leader staff writer Ty Tagami's November 23, 1998, request for a copy of "all 911 tape recorded conversations related to the Nov. 15 fatal accident involving Jason Watts, Arthur Steinmetz and Christopher Block." For the reasons that follow, we find that although its original response was deficient, the Center's decision to withhold the tape was substantively correct.
In a response dated December 2, 1998, Pulaski County 911 Center administrator Rick Barker notified Mr. Tagami that his request could not be honored. He explained:
The Pulaski County 911 Center is a central dispatch agency. We are not a part of any agency which we dispatch for; therefore, the policy is the tapes are the property of the responding agency. Any requisition and/or subsequent release must be processed through and approved by the appropriate agency.
Mr. Barker indicated that Mr. Tagami's request had been forwarded to the Pulaski County Sheriff's Department, the investigating agency, for a response. This appeal followed.
Mr. Tagami argues, in his letter of appeal, that the disputed record is "a public record maintained by a public agency as both are defined in KRS 61.870[,] and Rick Barker, to whom the November 25, 1998 [sic] letter was addressed and from whom the denial was received, is the official custodian of the record[], per KRS 61.870." In support, he notes that the Pulaski County 911 is a public agency within the meaning of KRS 61.8709(1)(i) because the majority of its governing body is appointed by a public agency or agencies. Mr. Tagami observes:
The 7-member board of directors of Barker's agency includes: the Pulaski County Sheriff, the Somerset Police Chief, a Kentucky State Police sergeant, the Commonwealth's Attorney for the 28<th> judicial circuit, the Somerset Fire Chief, the Pulaski County public safety director and the county EMS director. Also, the agency is funded through local government (KRS 61.870(h) [sic]) and was created by local government (61.870(g) [sic]).
It is Mr. Tagami's position that the Center's policy of "deferring requests to the Sheriff's Department" is improper. We agree.
In 98-ORD-100, the Attorney General rejected the argument that a public agency which prepares, owns, uses, possesses, or retains a public record is relieved of its clearly established duties under the Open Records Act simply because the record is in the custody of another agency from which it can more appropriately be obtained. There, the Lexington-Fayette Urban County Government asserted that it was the "casual possessor" of records in another agency's custody, and not the "official custodian, " and that it therefore could not honor a request for those records. On the basis of KRS 61.870(2) and a series of open records decisions, we held that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card) ; and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). The weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded.
We find that the Pulaski County 911 Center's policy of referring all open records requests for 911 tapes which it receives to the investigating agency is similarly insupportable. The Center does not maintain that it does not have custody or control of the tape which Mr. Tagami requested. If this were the case, KRS 61.872(4) plainly states that it would discharge its statutory duty by so notifying the requester and furnishing him with the name and location of the official custodian of the record. The facts before us are more closely akin to the facts presented in OAG 90-71, OAG 91-21, 96-ORD-7, 98-ORD-17, and 98-ORD-100. These decisions firmly establish that an agency cannot avoid its duties under the Open Records Law by deferring to another agency, but must instead determine, within three working days of receipt of the request for records in its custody and control, whether to honor the request, and notify the person making the request of its decision. KRS 61.880(1).
It is important to note that in 98-ORD-100, the Attorney General agreed that a custodial agency could consult with the other agency in whose custody the records also resided to ascertain that agency's position on release of the records. At page 6 of that decision, this office observed:
In the three day period between receipt of the request and notification of its decision to the requester, the agency is free to take any reasonable steps, and make any reasonable inquiry, in furtherance of that decision. However, its election to consult with the [other] agency cannot be used as an excuse to extend the deadline for its response to the open records request. As a public agency which has possession or retains copies of the records, it is obligated to discharge its duties under KRS 61.880(1) by releasing those records within three working days, or by denying [the requester] access to them on the basis of one or more of the exceptions found at KRS 61.878(1)(a) through (1) within three working days, notwithstanding the fact that those records are available, and could be obtained, from the other agency.
By the same token, we see nothing wrong with the Pulaski County 911 Center contacting the investigating agency, here the Pulaski County Sheriff, or the prosecutorial authorities, here the Commonwealth's Attorney, to determine these agencies' positions on disclosure of the disputed 911 tape. Since these agencies have indicated that the tape falls within the parameters of KRS 61.878(1)(h), the Center was, and is, foreclosed from releasing it.
In 99-ORD-11, the Attorney General concluded that Pulaski county Sheriff had met his statutory burden of proof in denying Mr. Tagami access to the 911 tape of the November 15, 1998, fatal accident. We reached this decision on the basis of the arguments presented by the Acting Commonwealth's Attorney for the 28<th> Judicial District, Eddy Montgomery, on behalf of the Commonwealth, the Pulaski County Sheriff, and the Pulaski County 911 Center. A copy of that decision is attached hereto and incorporated by reference as it pertains to the 911 tape which is the subject of both these appeals. We therefore conclude that the Center's response was procedurally deficient, but affirm its decision to withhold the record.
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.