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 Southgate Police Department violated the Open Records Act in its disposition of APBnews.com Director of Legal Administration Michael Ravnitzky's May 3, 2000, request for the "dash cam videotape of a pursuit that occurred in Southgate on 7/24/98 involving an underage (15 year old) driver. . . ." Having received no written response to his request, Mr. Ravnitzky initiated this open records appeal on May 17, 2000, urging the Attorney General to compel disclosure of the videotape. For the reasons that follow, we find that although its disposition of Mr. Ravnitzky's request was procedurally deficient, the Southgate Police Department did not violate the Act in denying the request inasmuch as it cannot make available for inspection a record that no longer exists. Nevertheless, the Department's failure to retain the record for five years raises records management and retention issues which may appropriately be reviewed by the Department for Libraries and Archives under Chapter 171 of the Kentucky Revised Statutes.
In a letter directed to this office following receipt of notification of Mr. Ravnitzky's appeal, Col. Chuck Hazel, Chief of the Southgate Police Department, indicated that he had spoken to Mr. Ravnitzky "several times," and advised him that his request could not be honored because the videotape no longer exists. He explained that the Department "erase[s] tapes to be reused all the time after the case has gone to court." In subsequent correspondence, Chief Hazel stated that the fifteen year old driver was prosecuted, although he did not indicate when the case was concluded or when the tape was erased and reused. He acknowledged that a copy of the videotape was released "at one time" to a media organization identified as "World's Scariest Videos." Chief Hazel noted that there are no written policies governing the process of erasing and reusing videotapes, and that they are "erased and reused when they are no longer of use." In closing, Chief Hazel asserted that he would willingly furnish APBnews.com with a copy of the videotape if it still existed, but that he could not release a record which no longer exists.
In a letter supplementing his original appeal, Mr. Ravnitzky noted that APBnews.com's first request for a copy of the videotape was submitted to the Southgate Police Department on January 13, 2000, and that "at that time, Chief Hazel indicated that the . . . Department had possession of the videotape in question." During the intervening months, producer Richard Zlotowitz made numerous verbal requests for the videotape. In response to Mr. Ravnitzky's May 3 request, Chief Hazel advised that the tape had been erased and reused. Mr. Ravnitzky therefore expressed the view "that this tape was destroyed after our original request and with full knowledge that we had asked for this tape in writing, and that destroying the tape at that point was contrary to state law. . . ." Our analysis is confined to the propriety of the Department's denial of the request on the basis of the nonavailability of the videotape.
We begin by noting that the Southgate Police Department failed to comply with the procedural requirements of the Open Records Act set forth in KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record 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. The response shall be issued by the official custodian or under this authority, and it shall constitute final agency action.
The Department failed to respond to Mr. Ravnitzky's request in writing and within three business days. We remind the Department that the procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Southgate Police Department to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that the Department cannot be said to have violated the Open Records Act in failing to produce for inspection a record that no longer exists. Chief Hazel does not assert that the record Mr. Ravnitzky requested is not a public record for purposes of the Open Records Act. Nor does he rely on any of the exceptions to the Open Records Act, codified at KRS 61.878(1)(a) through (1), in denying the request. Instead, Chief Hazel states that the record is no longer available because it was erased and reused after the case was prosecuted. Obviously, the Southgate Police Department cannot furnish Mr. Ravnitzky with records which no longer exist. See, e.g., OAG 83-111; OAG 87-54; OAG 88-5; OAG 91-112; 94-ORD-65; 96-ORD-41. Our decisions in an open records dispute are generally limited to two questions: whether the public agency has in its possession the documents requested, and if it does, whether the document is subject to public inspection. The Southgate Police Department's failure to produce a record that no longer exists did not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Our review of the Records Retention Schedule for local government law enforcement agencies, a copy of which is attached, indicates a specific retention period for videotapes generated in the course of, or collaterally to, investigations other than felonies. Whether this retention period is applicable to the videotape at issue is a question for the Department for Libraries and Archives, the agency charged with oversight and enforcement of the provisions of Chapter 171. Therefore, a copy of this decision has been transmitted to the Department for review.
With respect to Mr. Ravnitzky's allegation that the videotape was destroyed after APBnews.com's original request was made, we note that KRS 61.991(2)(a) establishes penalties for officials of public agencies who willfully conceal or destroy any record with the intent to violate the Open Records Act. If evidence exists that the requested record was improperly destroyed after APBnews.com made its open records request, that evidence should be presented to the local county attorney. As a part of the appeal process, the Attorney General is not empowered to impose penalties for violations of the Open Records Act.
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.