Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in the disposition of John Yarbrough's November 13, 2003 request 1 for "all KSP-41 and 46 records for Tpr. J. McWhorter # 935 that may apply to citations written in 2002 . . . [and the KSP-41 and 46 records for five additional named troopers] for January through June, 2002." 2 For the reasons that follow, we find that KSP's disposition of Mr. Yarbrough's request was procedurally deficient, but substantively correct. We believe that 04-ORD-032, recently issued to these parties, is in many respects controlling. However, in light of paucity of records produced in response to Mr. Yarbrough's request, we have referred this matter to the Department for Libraries and Archives under authority of Chapter 171 of the Kentucky Revised Statutes for additional inquiry into the management and retention of the disputed records if the Department deems such inquiry appropriate.
In a response dated November 13, 2003, KSP notified Mr. Yarbrough that his request had been received "and was forwarded to Post 2 on November 13 . . . for review and response." KSP further notified Mr. Yarbrough that he would be advised "as to the position of the Kentucky State Police with regard to these materials . . . when Post 2 advises of their position . . ." Having received no additional correspondence relating to his November 13 request from KSP, Mr. Yarbrough initiated this appeal.
In his letter of appeal, Mr. Yarbrough explained:
The KSP-41 record documents each time an "in car video" camera records an arrest or incident where the tape is to be kept as evidence. When a citation has the "in car video" box checked, this form is filled out to document which name and citation number evidence is on the tape in case it's needed in court for either the prosecution or defense. The KSP-46 record compiles these KSP-41s for each officer as they are turned in and keeps up with the time the tapes must be kept as evidence and then erased only by a qualified person. As I understand it once the "in car video" box is checked on the citation, only the qualified person may erase it, not the officer. Each erasing and reissue into use is documented on the KSP-46 form.
He complained that in response to earlier requests he had only received "KSP-46 records with no corresponding KSP-41 records for one officer, two KSP-41 records with names of arrested improperly redacted for a second officer, and KSP-41 and 46 records from the wrong year for Tpr. McWhorter." Continuing, he described his efforts to "pro[ve that] McWhorter would have 41 and 46s," but only belatedly attached documentation reflecting these efforts. 3 Our review is therefore confined to the records access issues raised in his November 13 request and KSP's November 13 response thereto.
By letter dated December 17, 2003, KSP Official Custodian of Records Terry D. Edwards responded to Mr. Yarbrough's appeal. He advised:
Attached are 17 pages that were faxed to this office on November 20, 2003 by Post 2 as their complete and entire response to Mr. Yarbrough's request for records that is the subject of this specific appeal (03-1018). It was my understanding that Mr. Yarbrough had previously been provided copies of this information; however, based on the information contained in his appeal it is apparent that he was not provided these records. I believe the confusion stems from the fact that during the time period relating to this particular request Mr. Yarbrough was delinquent in his payments for past requests and he had been advised that he was ineligible to receive further documents from KSP until his overdue account was paid in full (see paragraph 3 of my November 13, 2003 letter to Mr. Yarbrough). Sometime around December 4, 2003 Mr. Yarbrough's delinquent account was finally satisfied; however, for reasons that are unknown to me personally, the directive to release these attached records to him upon satisfaction of his delinquent account apparently did not result in these particular records being delivered to him at that time. Please be advised that these attached records constitute the complete KSP response to request 03-1018. Copies of these records have been provided to Mr. Yarbrough as part of this response.
As in 04-ORD-032, Mr. Edwards extended an invitation to Mr. Yarbrough to meet with a representative from the KSP Legal Services Branch and a senior supervisor from the Madisonville Post at the Post "for the express purpose of ensuring that copies of any and all records in the possession and control of KSP that Mr. Yarbrough desires are provided to him."
Again dissatisfied with KSP's disposition of his request, Mr. Yarbrough contacted this office by facsimile transmission on December 22, apparently neglecting to transmit the same fax to KSP, to object to KSP's "obviously incomplete response." He complained that in his November 13, 2003 request, he asked for "all KSP-41 and 46 records for Tpr. J. McWhorter # 935 for 2002," but KSP sent him none. Mr. Yarbrough "insist[ed] on a direct answer from KSP as to why" the agency continues to deny his requests for these records. Additionally, he complained about omissions from, and discrepancies in, those records relating to other troopers that were disclosed to him, and proposed that this office "see what KSP says about the six additional records of Tpr. McWhorter's 'in car video' citations [he] includ[ed] along with the two previous same citations they denied any record of." As noted above, Mr. Yarbrough again communicated with this office by letter on February 24 in order to "add these facts to the record" and to inquire whether we were aware of "KSP Policy and Procedure OM-B-19 covering the handling of video evidence for DUI citations." It does not appear that this communication was transmitted to KSP.
We address first an issue that is strictly procedural in nature, and centers on KSP's failure to follow up on its November 13 response to Mr. Yarbrough's November 13 request. While we applaud the alacrity with which KSP issued its initial response, we note that neither KRS 61.880(1) nor any other provision of the Open Records Act authorize an indefinite postponement in access to public records of the duration reflected in the record before us. Accord, 98-ORD-175; 99-ORD-67. KSP offers several explanations for its failure to supplement its initial response to Mr. Yarbrough, each of which has some validity but none of which entirely excuse its neglect. We urge KSP to streamline its current practices to insure both a timely response and timely access to nonexempt public records.
Turning to the substantive portion of this appeal, we are obliged to remind Mr. Yarbrough that the issues in an open records appeal are those issues presented in the request and denial per KRS 61.880(2), 4 and not those issues that occur to the appellant as the appeal progresses. It is for this reason that our review is necessarily restricted to the issue of whether KSP violated the Open Records Act in failing to provide Mr. Yarbrough with all records identified in his November 13 request. KSP has stated that the records disclosed comprise all existing responsive records. This is tantamount to an affirmative statement that the remaining records requested do not exist. OAG 86-38; OAG 90-26; OAG 91-101; 99-ORD-95. Resolution of this issue thus largely mirrors resolution of the similar issue presented in 04-ORD-032, and we attach hereto and incorporate by reference that decision, particularly the discussion at pages three through five. In sum, we find that KSP has fully discharged its duty under the Open Records Act in affording Mr. Yarbrough access to all existing records that are responsive to his request, and again, gone above and beyond its statutory duty in agreeing to meet with him to resolve any lingering records access issues.
Nevertheless, the paucity of records produced by KSP in response to Mr. Yarbrough's request, and discrepancies in correlating those produced and those not produced, raises records management issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. We have confirmed through the Department for Libraries and Archives that the documents in dispute, KSP-41's and 46's, are unscheduled records and as such should be retained by the agency until a retention schedule is established for them. This appeal presents the occasion for KSP to work with the Department to schedule these and other previously unscheduled records. We therefore refer this matter to the Department for Libraries and Archives pursuant to KRS 61.8715, 5 for additional inquiry as that agency deems warranted.
Ultimately, we cannot afford Mr. Yarbrough the relief he seeks. We are not empowered to declare KSP's inability to produce nonexistent records a violation of the Open Records Act, or to otherwise compel KSP to maintain records for a specific duration. The latter prerogative resides in the Department for Libraries and Archives and the Archives and Records Commission and we respectfully defer to these entities on this question. Nor can we engage in independent fact finding relative to the loss or destruction of records that might have furthered Mr. Yarbrough's ultimate goals. Unsubstantiated allegations of such improprieties simply cannot be adjudicated in an open records appeal.
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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Roger Wright Legal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Terry D. EdwardsLegal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Richard BeldingDirector, Public Records DivisionDepartment for Libraries and Archives300 Coffee Tree RoadP. O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 In subsequent correspondence directed to this office, Mr. Yarbrough tendered similar, though not identical, requests that he had previously submitted to KSP, along with a KSP response to one of these requests. Because these requests were not included in his original appeal, and KSP was therefore denied the opportunity to respond to the issues raised per 40 KAR 1:030 Section 2, we are precluded from considering these issues which focus, in general, on KSP's alleged failure to respond in a timely fashion.
2 Mr. Yarbrough's November 13 records application also contained a request that KSP "have Carolyn Boyd check if she has non-existed these too" followed by a list of six violations identified by date, trooper issuing citation, citation number, and one of two descriptions (either "(x) in car video - x and circle" or "(x) in car video - x only"). It is unclear whether this was intended as an additional request or intended as a demand for an admission that these records had been "non-existed, " a term with which we are unfamiliar. Given this ambiguity, we do not address the propriety of KSP's disposition of this portion of Mr. Yarbrough's request.
3 See note 1 above.
4 See also, 40 KAR 1:030 Sections 1 and 2.
5 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 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, 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.