Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Earlington Police Department relative to John Yarbrough's request that the Department provide him with a digital "Hi-8" video copy of his DUI arrest rather than in the VHS format, the format in which it was provided to him, violated the Open Records Act. For the reasons that follow, we find that the Department did not violate the Act in denying the request because it did not maintain the requested tape in the proposed format. We further find that the Department's responses to additional requests of Mr. Yarbrough were consistent in part and inconsistent in part with the Act.
By letter dated November 1, 2004, to Chief Craig Patterson, Earlington Police Department, Mr. Yarbrough acknowledged receipt of the "in car" video of his DUI arrest on October 9, 2004 in VHS format. However, Mr. Yarbrough stated that the quality of the VHS copy was poor and asked if the Department would make a digital "Hi-8" video copy of his arrest. On the copy of his request letter, included with his letter of appeal, Mr. Yarbrough states he received no reply to this request. He also stated that he sent another request for the same action on November 10, 2004 and received no response.
In a letter to Chief Patterson, dated December 9, 2004, but in which Mr. Yarbrough indicates was delivered on December 14, 2004, Mr. Yarbrough asserted that he believed that the tape of his DUI arrest provided to him was incomplete; that the beginning and end of his arrest was missing. He stated that he included a blank Hi-8 tape and again asked that the Department produce a copy of his arrest in the digital Hi-8 format. In addition, Mr. Yarbrough requested the time cards for Officer Proctor for October 7-9, 2004.
By letter dated December 29, 2004, to Chief Patterson, Mr. Yarbrough asked if the Department would be providing the requested tape copy and time cards for Officer Proctor and asked for a date he could view the original in-car camera tape.
On December 29, 2004, Chief Patterson faxed a response to Mr. Yarbrough advising:
Your most recent open records request which was dated 12/09/2004 was not submitted to me until 12/14/2004 when you delivered it to me in person. A response to your request was left with the clerk the same day (12/14/04) with instructions for her to release the response to you within 72 hrs.
As of this date (12/29/2004) you have failed to pick up the response. Since you came back and left a video tape after your initial request, I assumed you were going to pick up the response since I can not fax a video tape.
In the response which you have failed to pick up, I have enclosed the requested time cards for Office Procter. However, I am unable to honor your request for another copy of the video tape I have previously provided you. As for your request for an appointment to view the original tape dated today (12/29/2004) I am also unable to honor your request due to the fact that there are other individuals on the same tape which are not relevant to you.
Chief Patterson's December 14, 2004 response, which Mr. Yarbrough indicates he picked up from the Department on December 29, 2004, stated:
Enclosed is a copy of time cards for Officer Chris Proctor for 10/7, 10/8 and 10/9, 2004 as you requested.
As far as your request for another copy of the in car video tape, as I explained to you previously, the copy I have already supplied to you is copied directly from the original tape and the quality of your copy is the same as the original. Therefore, I am unable to honor your request for a 2nd copy of the tape.
By letter dated January 3, 3005, to Chris Oglesby, City Attorney, Mr. Yarbrough renewed his request for a copy of his DUI arrest tape in the Hi-8 format. He also requested unredacted copies of the "Daily Activity Reports as well as all Individual Citation Reports for Ofc. Chris Proctor for Oct. 7, 8 and 9, 2004," and "all purchase records for all EPD in-car camera's and recording equipment. Please include any records of features and capabilities of this equipment and in which car each is installed."
By letter dated January 3, 2005, Mr. Oglesby responded to Mr. Yarbrough's request, advising him in relevant part:
It is my understanding that you were provided VHS copies of the in-car video you requested along with copies of the requested time cards. I also understand that "Hi-8" video recording is beyond the capabilities of the city as they use a standard VHS recorder to make copies.
As for the citations provided to you back in July, those were redacted in accordance with instructions I received from the attorney general's office. The concern was that the citations contained personal information you were not privy to. Any future citations produced by the City should also be redacted accordingly.
We are asked to determine whether the actions of the Department relevant to the open records requests of Mr. Yarbrough violated the Open Records Act. For the reasons that follow, we conclude that the actions of the Department were consistent in part and inconsistent in part with the Act.
We address first Mr. Yarbrough's request for the Department to produce a copy of his DUI arrest in a digital "Hi-8" video format, rather than in the VHS format which was provided to him.
KRS 61.874(3) speaks directly to this issue, providing in relevant part:
If a public agency is asked to produce a record in a non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.
(Emphasis added.) Thus, it is within the discretion of a public agency whether to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. 96-ORD-75. Because the language of KRS 61.874(3) is precatory in nature, the Department, in the exercise of its discretion, could properly decline to reformat the tape to conform to the parameters of Mr. Yarbrough's request.
In response to this request, the Department advised Mr. Yarbrough that providing him a "Hi-8" video recording of his arrest was beyond the capabilities of the city as they used a standard VHS recorder to make copies. Obviously, if a public agency does not have the capability to produce a record in a nonstandard format, it cannot be required to do so and, under KRS 61.874(3), even if it did have the ability to produce a record in a nonstandard format, it was with the agency's discretion whether to accommodate the request. Accordingly, we conclude the Department did not violate the Open Records Act in declining Mr. Yarbrough's request to produce a digital "Hi-8" video recording of his arrest.
Mr. Yarbrough indicated that he had offered to loan his Digital 8 camera and wiring to the Department to facilitate the making of a "Hi-8" video of his arrest. Here again, it is within the discretion of the public agency whether to allow a requester to use his own equipment and materials or to make such an accommodation to copy public records. KRS 61.874(3); 00-ORD-74. The Department did not violate the Open Records Act in denying this request.
We next address Mr. Yarbrough's request for another copy of his arrest tape.
With respect to duplicative requests for documents, the Attorney General has stated that an agency is not "required to satisfy the identical request a second time in the absence of some justification for resubmitting the request." 95-ORD-47, p. 6. We reasoned:
We do not believe, however, that [an agency] is required to satisfy the identical request a second time in the absence of some justification for resubmitting that request. KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records" during regular office hours or by receiving copies through the mail. Common sense dictates, however, that repeated requests for the same records may become unreasonably burdensome or disrupt the agency's essential functions. Thus, at page 6 of OAG 92-91 this office observed:
To produce . . . records once entails some inconvenience to the agency; to produce them three and four times requires a level of "patience and long-suffering" that the legislature could not have intended. Citing OAG 77-151, p. 3.
The Department denied Mr. Yarbrough's request for another copy of his arrest tape, advising him that he had already been provided a copy copied from the original tape and the quality of the tape he had been provided was the same as the original. Thus, since the Department has already provided Mr. Yarbrough with a copy of the tape, it is not required to satisfy an identical request unless Mr. Yarbrough can explain the necessity of reproducing the record which has already been provided such as loss or destruction of the record.
We next address Mr. Yarbrough's request to view the original tape of his arrest. In his letter of appeal, he stated he had reason to believe that the copy he received was not a complete copy of the video of his arrest. In his request, submitted to the Department on December 14, 2004, Mr. Yarbrough stated:
I am making an Open Records request for a complete copy of the 'in car' video shot by EPD Officer Chris Proctor at my traffic stop by Hopkins Co. Deputy Sheriff Jamie Lampton on Oct. 9, 04, about 12:15 A.M. Though I appreciate you supplying the first copy on Oct. 29, 04, I believe you will find it is missing the beginning and the end. The recording should begin with your Officer Proctor thumping his microphone and saying you are 'on' in response to me asking him to record video of me for evidence. The supplied video copy also ends abruptly without Ofc. Proctor touching his belt control. Did the tape run out or was the copy stopped?
Chief Patterson denied the request, stating "that there are other individuals on the tape which are not relevant to you." In OAG 89-81, the Attorney General stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
In its response to Mr. Yarbrough, the Department neither cites an exception or an explanation of how an exception authorizes nondisclosure of the portions of the tape nor advises him whether he received a complete copy of the tape. If some portions of the tape are exempt from disclosure under an applicable provision, the law places a duty on the public agency to review the tape and separate material exempt from disclosure. KRS 61.878(4); 03-ORD-157. Because "[a]ny person shall have a right to inspect public records, " the Department should accommodate his request to review that portion of the tape that constitutes the video recording of his DUI arrest to allow him to assess that he has a complete copy of the video of his arrest. KRS 61.872(2). "It is only through full disclosure of an agency's records that a requester can satisfy himself that the record is complete." 00-ORD-16, p. 5.
We address next Mr. Yarbrough's request for the Department to provide him unredacted copies of the requested Individual Incident Reports. In 04-ORD-143, we upheld the redaction of personal information beyond the identities of the crime victim or "involved persons," such as home addresses and dates of births, from incident reports.
A review of copies of some of the Individual Incident reports involved in the instant appeal, which were provided by the parties, reveals that the redacted information in these records was personal information, such as home addresses, social security numbers, dates of birth, telephone numbers, and driver license numbers. These are personal details which are "generally accepted by society" as carrying an expectation of privacy that outweigh the minimal public interest in disclosure, particular where the identity of the victim or involved person is disclosed. Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828, 829 (1994); 04-ORD-143. We therefore find no violation in the redaction of this personal information from the requested incident reports.
Mr. Yarbrough also requested unredacted copies of the Daily Activity Reports for Officer Chris Porter, for Oct. 7, 8, and 9, 2004. He did, however, acknowledge receipt of redacted copies of these records. We do not know what information was redacted on these records. If the redactions were of personal information, such as social security number, home address, home telephone, this office and the courts have held that disclosure of this type of information constitutes an unwarranted invasion of personal privacy and may be withheld from disclosure under KRS 61.878(1)(a). See, Zink; 04-ORD-143.
In his letter of appeal, dated January 11, 2005, Mr. Yarbrough indicated that the Department refused his January 3, 2005 request for "all purchase records for all EPD in-car camera's and recording equipment. Please include any records of features and capabilities of this equipment and in which car each is installed." Mr. Yarbrough does not indicate whether the denial of this request was by written denial by the Department and the Department did not provide a response to this office on this issue. If the agency failed to provide a written denial to Mr. Yarbrough stating upon which exception of KRS 61.878(1) it based its denial and a brief explanation of how the exception applied to the records withheld, then this would constitute a violation of KRS 61.880(1).
We also note that in some instances the City failed to timely respond to some open records requests and in another instance miscommunication between the parties delayed the receipt of an otherwise timely response. KRS 61.880(1) requires that an agency respond to an open records request in writing within three business days after receipt of a request. The failure of a public agency to provide a timely written response to a request within three business days after its receipt is a violation of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
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.
Distributed to:
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Chief Craig PattersonEarlington Police Department103 W. Main StreetEarlington, KY 42410
Christopher B. OglesbyP'Pool & OglesbyThe Gordon House220 North Main StreetMadisonville, KY 42481