Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Fayette Urban County Government, Division of Police violated the Kentucky Open Records Act in partially denying the request of Gayle Slaughter for fourteen categories of records concerning the arrest of her client, Joel D. Brown, on July 21, 2005 (CR#2005-131872). With respect to those records which the Division has already provided to Ms. Slaughter, any related issues are moot; this office must therefore decline to issue a decision on the merits as to those records per 40 KAR 1:030 Section 6. Because the records still at issue do not currently exist in the specified format, the Division is not statutorily obligated to honor the remainder of Ms. Slaughter's request; the Division is entitled to recover staff costs as well as actual costs incurred in tailoring the format of any responsive records to meet her request in an exercise of its discretion by virtue of KRS 61.874(3). In denying access to the NCIC information contained in the "audio recording of Radio channel No. 1," the Division properly relied upon KRS 17.150(4).
By letter dated August 1, 2005, Ms. Slaughter requested "access to the originals, and one true copy each (if requested upon inspection) ," of specified documents and information, "regardless of what form it exists in." Unless otherwise indicated, the requests relate to communications "sent by and between central dispatch and [] Officer B. Taylor (badge #42227), Detective M. Evans (badge # unknown), and Officer T. Graul (badge #41227)" between 11:00 p.m. on July 20, 2005, and 4:00 a.m. on July 21, 2005. More specifically, Items 1-9 of Ms. Slaughter's request, which are identical with the exception of the specific channel being requested (channels 1-8 and "any other channel" ), are framed as follows:
1. Tape recordings and teleported [sic] digital text messages of the police radio dispatches and communications (radio dispatches and communications sent and received by and between the radio dispatch communication center [and its agents and assigns] and officers in the field) by and between the LFUCG Division of Police radio dispatch communication center and Officer B. Taylor [] and Detective M. Evans [] and Officer T. Graul for the period of time from 2300 hour[s] (11:00 PM) on 7/20/2005 through 0400 hour[s] (4:00 AM) on 7/21/2005 regarding the arrest of my client, Joel D. Brown on 7/21/2005 at approximately 12:36 AM (0036 hour[s]). This request extends to recordings of said police radio dispatches and communications and teleported [sic] digital text messages transmitted specifically via channel one, isolated/separated from the other channels (i.e., with only this channel audible on the tape) .
In addition, Ms. Slaughter requested access to the "dispatch log (and all documents and information)" containing the "transcript of all radio and other communications (including but not limited to radio transmissions and digital text-messages) by and between the LFUCG Division of Police radio dispatchers (central dispatch, 911 dispatch, and the like)" and the named officers during the specified time period. Also, Ms. Slaughter sought the "work schedules and assignments" for radio dispatch personnel, "communications center personnel" and "all other personnel working in the communications division, record keeping, and central command," including civilian personnel and sworn officers, for the specified time period; also encompassed by her request are all "documents and information relating to the work schedules and assignments" for that time period "showing the IDENTITY OF EACH ACTIVE DUTY SWORN POLICE [OFFICER] involved in events leading to the arrest of [her] client, Joel D. Brown." In conclusion, Ms. Slaughter requested all complaints, including those filed with Internal Affairs, against the named officers between January 1, 2002, and the date of her request as well as all "material relating to the impoundment of the vehicle" driven by Mr. Brown when he was arrested on July 21, 2005, at approximately 12:36 a.m.
Having advised Ms. Slaughter of the need for more time due to the "extent and complexity" of her request in a timely written response, Officer Aaron K. Kidd, Communications Unit Assistant, issued a final response on behalf of the Division on August 17, 2005. With respect to Items 1-9, Officer Kidd advised Ms. Slaughter that "Communications audio recordings are recorded in real time and are not separated. The separation of the radio dispatch audio recordings would alter the original format and the integrity of the recording. " Recording the tapes on separate channels would "require research and alter the original documents," which is "not provided for under the Open Records Act. " If Ms. Slaughter still wishes to have the "radio channels recorded separately," a charge of "$ 28.08 per hour plus the cost of the cassette tapes will be required upon completion." In reference to "Radio channel No. 1 (item No. 1)," the Division was unable to provide Ms. Slaughter with an "audio copy" as that would provide a permanent record "of NCIC information." Citing the language of KRS 17.150(4), Officer Kidd correctly observed that such information is exempt from public inspection. There was "no recorded radio traffic for the requested dates" on channel no. 8; no records exist which are responsive to Item 9 of Ms. Slaughter's request. 1
Enclosed with Officer Kidd's response relative to Item 10 was a redacted "dispatch log printout" for the referenced case number "with the text messages used by communication personnel. " Relying upon KRS 61.872(6), 00-ORD-132, and 00-ORD-07, Officer Kidd declined to process Ms. Slaughter's request to the extent that she requested "all documents and information relating to . . ." rather than specifically described public records. 2 In response to Items 11 and 12, Officer Kidd provided Ms. Slaughter with copies of the schedules for both sworn officers and civilians working on the date specified. Also included with Officer Kidd's response was a letter from Major Michael Bosse, Bureau of Internal Affairs, in response to Item 13 of Ms. Slaughter's request. Finally, Officer Kidd included a copy of the requested "vehicle Impound Record." 3
In response to subsequent correspondence from Ms. Slaughter, Officer Kidd clarified that he provided her with "all traffic recorded as it came in without altering the original recordings" in the past for the reasons stated. Since Ms. Slaughter's client cannot afford the cost of separating the radio traffic, Officer Kidd provided Ms. Slaughter with "a copy of all the channels in [their] original format" (at a cost of $ .85 per cassette tape rather than $ 1.00 as Ms. Slaughter had indicated). With respect to Ms. Slaughter's claim that her client arguably "has a constitutional right" to receive copies of the requested records at no cost, Officer Kidd correctly advised Ms. Slaughter that she needs to request a copy "of her client's case jacket through discovery." In addressing the argument that his statement regarding NCIC information "is not applicable in relation to obtaining information already publicly broadcast over a radio channel" monitored by the public, Officer Kidd emphasized that Ms. Slaughter had not originally requested her client's information but information from a specified time frame; Officer Kidd enclosed a copy of the former but reiterated the Division's position as to the NCIC information.
By letter dated September 16, 2005, Ms. Slaughter initiated this appeal, making various arguments based upon both the Kentucky and United States Constitutions, public policy, and the absence of governing federal law, none of which are properly considered in this forum. As this office observed in 05-ORD-063 (a prior appeal filed by Ms. Slaughter against the Division), the Attorney General is "'not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1).'" Id. at p. 4, citing 99-ORD-121, p. 17. 4 In other words:
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884.
96-ORD-120, p. 3. See also 05-ORD-006; 96-ORD-171; 96-ORD-142. To summarize, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate. Accordingly, our analysis focuses exclusively on whether the Division complied with the Open Records Act in partially denying Ms. Slaughter's request.
In relevant part, Ms. Slaughter contends that the requested radio transmissions "are broadcast live over public airwaves," the Division is licensed by the FCC to use those airwaves, and "all material, including facts obtained from NCIC that have already been broadcast is already in the public domain. The material may not be redacted. The requests seek radio broadcasts, not 'records' in the NCIC database. " According to Ms. Slaughter, $ 28.01 per hour "is unreasonable and calculated to obstruct access to open records." In her view, defendants in criminal cases (such as her client) requesting records that may have exculpatory value have a "constitutional right to compel production of the requested material at no cost." Before addressing the propriety of the Division's reliance upon KRS 17.150(4), or its implicit invocation of KRS 61.874(3) in charging staff costs, this office refutes Ms. Slaughter's assertion as to the statutory obligations of a public agency such as the Division relative to the imposition of fees generally.
KRS 61.874(3) authorizes public agencies to "prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." See also KRS 61.874(1) ("When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate"); KRS 61.872(3)(b) ("If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing"). As evidenced by the foregoing, the Open Records Act contains no provision mandating the waiver of fees for any party regardless of his or her financial status. See 99-ORD-30 (no waiver of reproduction charges for inmates); 94-ORD-90 (no waiver of reproduction charges for media representative). "Simply stated, all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3; 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 80-641; OAG 79-582; OAG 79-546. Accordingly, the Division acted in compliance with the Open Records Act in requiring prepayment of a reasonable copying charge that does not exceed the actual cost of duplication, and enforcing a standard policy relative to assessment of the charge. See also 99-ORD-179; 98-ORD-95. 5
Upon receiving notification of Ms. Slaughter's appeal from this office, Michael R. Sanner, Corporate Counsel, responded on behalf of the Division, arguing that Ms. Slaughter tried to "circumvent 05-ORD-063 by requesting in each separate item a tape of each separate channel. " 6 Although the Open Records Act does not require the Division to "separate the radio traffic, " thereby altering the original record, Officer Kidd offered "to create a special report" for Ms. Slaughter and assess fees for the staff time required as well as the actual costs incurred. Having summarized the correspondence which culminated in this appeal, Mr. Sanner asserts that "NCIC information is exempt from public inspection pursuant to KRS 17.150(4)" contrary to Ms. Slaughter's position that "she is entitled to all NCIC information that is broadcast over channel 1." In addition, "some of the information broadcast over channel 1 from the NCIC database is exempt pursuant to KRS 61.878(1)(a), such as home addresses, home telephone numbers, and social security numbers," in Mr. Sanner's view. 7 As further explained by Mr. Sanner:
This information is accessed from the NCIC database regarding specific individuals. Information is transmitted over channel 1 and into the computer hard drive [at the Division]. The NCIC information that is broadcast over channel 1 is not memorialized on tape or any permanent record other the Division of Police hard drive. Even though the information is sent out over channel 1, a listener would have a hard time identifying the data with specific individuals because all channels are broadcasted as calls come in. A listener can only match data if the information is separated by channel and taped to a permanent record. If the NCIC and private information were made public by requiring the police to memorialize this information on a permanent record and distribute it to the public, KRS 17.150(4) would be violated and individuals would be subject to identity theft.
In sum, the Division must "be allowed to serve the public safety needs" by utilizing the NCIC database to perform its duties and having access "to the information over the airwaves." Accordingly, the Division requests that Ms. Slaughter's appeal be denied as to those records.
In addressing Ms. Slaughter's argument that the public must bear the expense of having the Division conduct research and "separate the radio traffic on different channels, " Mr. Sanner reiterates:
Radio traffic is received by the [Division] as the calls come in with all the channels intermingled on the computer database. As previously stated, the database is kept in real time and is not separated by channels. For the LFUCG to separate each call by channel would alter the document and compromise the integrity of the recording as well as require the LFUCG to do research regarding what channel each call came in on. . . .
Officer Kidd offered to separate the radio traffic and create a special report for Ms. Slaughter. There is no authority in the Open Records Act for the taxpayers to bear the expense of a special report requested by a requestor. The Open Records Act allows for special reports to be created for the requestor and the requestor bears the burden of the cost for the report.
A review of KRS 61.874(3) validates this assertion. Because the Division provided Ms. Slaughter with the NCIC information regarding her client in response to her letter of September 16, 2005, any related issues are moot as correctly observed by Mr. Sanner. Accordingly, the remaining questions are whether the Division erred in declining to separate the radio dispatch audio recordings by channel thereby creating new records or, in the alternative, by assessing staff costs to perform this service, and whether the Division properly relied upon KRS 17.150(4) in denying Ms. Slaughter's request as to the NCIC information contained in the responsive records; the Division's response is entirely consistent with the Open Records Act in our view.
Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. 8 Elaborating upon this position, the Attorney General has consistently observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81; OAG 89-77. Of particular relevance here:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-33; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5 (emphasis added). A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records") (emphasis added), validates this position. Accordingly, the Division did not violate the Act in denying Ms. Slaughter's request to separate the recordings by channel since the transmissions are recorded in "real time"; nor did the Division err in offering to "separate the radio traffic" and create a report it is not statutorily obligated to create (assuming the report would not contain NCIC information for the reasons below) at a cost of $ 28.01 per hour. To the contrary, KRS 61.874(3) expressly authorizes the Division to do exactly that. In relevant part, KRS 61.874(3) provides:
If a public agency is asked to produce a record in a nonstandardized 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). Relying upon KRS 61.874(3), the Attorney General has thus recognized that "it is within the discretion of a public agency 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." 04-ORD-176, p. 6, citing 96-ORD-75 and 96-ORD-133. In 02-ORD-48, the Attorney General held that the fact an agency can, at additional programming or mechanical processing costs, extract the information a requester is seeking does not mean that it must. Id., p. 6. (Original emphasis); see 01-ORD-158, p. 4. Accordingly, the Division may either decline to reformat the recordings at issue in the manner specified or, in the alternative, recover both actual and staff costs incurred as authorized by KRS 61.874(3); the Division's response is affirmed.
In denying Ms. Slaughter's request for data described as "NCIC information (Channel No. 1/Item 1)," the Division relies upon KRS 17.150(4), pursuant to which:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice Cabinet. Criminal justice agencies shall retain the documents and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
By virtue of KRS 17.150(1), the LFUCG Division of Police is one of the "law enforcement agencies" to which KRS 17.150(4) applies; the database created and maintained by the Division is therefore specifically excluded from application of KRS 17.150(4) as a "source of information collected by the Justice Cabinet." 9
As observed by the Attorney General, "documents maintained by local criminal justice agencies which are the source of information collected by the State Police may be subject to public inspection, particularly if the legal proceedings involving those records and the subjects of those records have been completed." OAG 88-63, p. 2. In other words, once the local information is intermingled with that from other law enforcement agencies in the centralized system, the information is not accessible from that source, but may be available from the applicable local law enforcement agency. Id. Had the General Assembly intended to broaden the scope of this confidentiality provision, it could have done so by omitting the exclusionary language. 00-ORD-206, pp. 11-12. Of relevance here, the necessary implication of the cited decisions is that information derived from the centralized system maintained by the KSP, or "NCIC information," which is not readily identifiable, remains confidential by operation of KRS 17.150(4) regardless of whether certain information mirrors that contained in the database of the local law enforcement agency and may be accessible from that source. Compare 00-ORD-206 (holding that the Department of Corrections' database is not the centralized criminal history record system so the Department's reliance upon KRS 17.150(4) as the basis for denial of access to entries not consisting of NCIC information was misplaced). Accordingly, the Division properly relied upon KRS 17.150(4) in denying Ms. Slaughter's request for the NCIC information transmitted over Channel No. 1; the Division's response is affirmed in its entirety.
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.
Footnotes
Footnotes
1 A public agency such as the Division obviously cannot produce for inspection or copying that which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only if the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 2. As consistently recognized by this office, "a public agency cannot provide access to records that it does not have or which do not exist." 04-ORD-205, p. 4, citing 03-ORD-205, p. 3; 02-ORD-145; 01-ORD-36; 99-ORD-98; 97-ORD-17; 93-ORD-134. "Nor is it incumbent on this office to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. By affirmatively indicating that no responsive records exist, as the Division did here, an agency discharges its duty under the Open Records Act. 03-ORD-205, p. 3, citing 99-ORD-98.
2 As long recognized by the Attorney General, "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. While it is certainly true that public agencies are not required to compile information solely for the purpose of satisfying a request, "we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). In keeping with this position, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he or she "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-017, p. 10, citing OAG 76-375, p. 3. Echoing this view, our office has held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled." Id., citing OAG 89-61, p. 5. See 02-ORD-26, p. 6, for guidance as to the higher standard imposed upon requesters seeking to receive copies of records through the mail.
3 With respect to those records which the Division has already provided to Ms. Slaughter, any related issues are now moot. Pursuant to 40 KAR 1:030 Section 6: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has long held that when access to public records that are being sought for inspection or copying is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. As evidenced by the Division's original response, the Division has provided Ms. Slaughter with a redacted version of the specified dispatch log, the responsive schedules, and the vehicle "Impound Record"; the Division's position as to Item 13 of Ms. Slaughter's request is unclear since neither party provided this office with a copy of Major Bosse's letter. On appeal, Ms. Slaughter focuses exclusively on the Division's response to Items 1-9 (the "radio transmissions" ) of her request and the related issue of cost; our analysis proceeds accordingly. Absent objective evidence to the contrary, this office assumes that Ms. Slaughter has reviewed and/or received copies of any existing records that are responsive to her request and does not otherwise challenge the position of the Division. That being the case, this office must decline to issue a decision as to those records.
4 In 05-ORD-063, this office expressly declined to consider Ms. Slaughter's argument that the refusal of the LFUCG to provide her with full and complete disclosure of material "in the public domain" violated her constitutional rights. Id., pp. 3-4.
5 In 94-ORD-90, the Attorney General recognized that "a public agency may, of course, elect to waive the copying charge." Id., note 1. Citing page 2 of OAG 81-300, this office observed that "as long as full access is provided and the records are protected from damage and disorganization, there is no statutory prohibition against the agency waiving a fee . . . ."
6 In her letter of appeal, Ms. Slaughter argued that her request for material in electronic format was totally ignored by the LFUCG; however, the LFUCG explained that it had provided records "in paper form in printout form and the tapes on audiotape," and sought further clarification as to which records Ms. Slaughter requested in electronic format. In the absence of a request for specific records in electronic format, this office concluded that the LFUCG had substantially complied with the Act. 05-ORD-063, p. 4.
7 Given our resolution of the issue relative to KRS 17.150(4), this office makes no determination as to the applicability of KRS 61.878(1)(a) in this context, although 00-ORD-206, pp. 8-10, arguably refutes this argument.
8 In relevant part,KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
9 KRS 17.140(1) provides that a "centralized criminal history record information system shall be established in the Justice Cabinet under the direction, control, and supervision of the commissioner of the Department of State Police." This provision, in conjunction with KRS 17.147 and KRS 17.151, dictates that the State Police are responsible for the collection of data and maintenance of the system on behalf of the Cabinet. 00-ORD-206, p. 11. Denial of access to the centralized criminal history records system maintained by the KSP has been approved in a series of decisions dating back to 1976. Id.; OAG 88-63; OAG 82-288; OAG 77-28; OAG 76-604.