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 Louisville Metro Police Department violated the Kentucky Open Records Act in failing to either provide Terrance Eugene Miles with timely access to the videotape from "Officer [Frank Lee] Hill's [p]olice [c]ruiser" on February 27, 2005, "at approximately 0330-0340," or advise him that no such record exists in a written response within three business days. Although the LMPD has acknowledged certain procedural irregularities, the LMPD did not err in requiring advance payment of the prescribed copying fee, including postage, prior to mailing copies of any other responsive records to Mr. Miles in accordance with KRS 61.874(1). In short, the response of the LMPD was procedurally deficient but otherwise consistent with the Open Records Act.
By letter directed to Alicia M. Smiley, Media Relations Specialist, on October 31, 2005, Mr. Miles submitted the latest in a series of requests for copies of "all [r]adio transmission[s] from Officer Frank Lee Hill 2148 (2nd Division, 223 Adam) to other [o]fficers and EMS on 2/27/05 at approximately 0330-0340." In addition, Mr. Miles requested a copy of the videotape from "Officer Hill's Police Cruiser on said date and time." 1 In a timely written response, Ms. Smiley advised Mr. Miles to "forward a check or money order, payable to the [LMPD] in the amount of $ 8.00" so that she could mail the items to his attention. 2
On November 29, 2005, Mr. Miles advised this office that Ms. Smiley had not complied with his request which "is concrete evidence that Officer Hill blatantly 'LIED' to the Shively Police Department." In Mr. Miles' view, Officer Hill's "fabricated story" led to him being arrested and indicted for murder, tampering with physical evidence, and wanton endangerment. Contrary to Ms. Smiley's response, the Commonwealth's Attorney, J. Scott Davis, is assisting in the "'Cover-Up'" by telling Mr. Miles' attorney that no responsive videotape exists. In supplemental correspondence received by this office on December 15, 2005, Mr. Miles accuses the LMPD of "stalling" until after his trial date of December 13, 2005, to comply with his request. Citing letters of November 3, 2005, and November 22, 2005, Mr. Miles contends that Ms. Smiley gave him the impression that a videotape exists; if not, Ms. Smiley had a duty to advise him of that. Accordingly, Mr. Miles asks this office to "compel" the LMPD to honor his request, "and to offer proof that Officer Hill's police cruiser was not equipped with an in-car camera on February 27, 2005."
Upon receiving notification of Mr. Miles' most recent appeal from this office, Kris M. Carlton, Assistant County Attorney, responded on behalf of the LMPD. In relevant part, Ms. Carlton supplements the procedural history as follows:
Mr. Miles submitted two checks for $ 8 each [footnote indicating that one of the checks was returned to Mr. Miles as two audiotapes were mailed to him, but he "could not be given the videotapes, due to their nonexistence] , received on [Friday] November 18, and Ms. Smiley sent a supplemental response on [Tuesday] November 22, stating that the records would be sent on or about [Thursday] December 1, due to the Thanksgiving holiday creating a delay in locating and copying the records [offices were only closed on Thursday, November 25, 2005, and Friday, November 26, 2005, in addition to the weekend]. On December 1, Ms. Smiley sent another letter to Mr. Miles, to advise him that the audiotape had just been located the previous day, and that copying and mailing should be completed by [Monday] December 5. She also stated that records from a subsequent open records request made by Mr. Miles would be included at that time. At the conclusion of this correspondence, Ms. Smiley noted that Officer Hill advised her that his patrol car was not equipped with a camera, and thus, that portion of Mr. Miles' original request could not be fulfilled, as there was no videotaped record.
In subsequent correspondence dated December 8, Mr. Miles complained to Ms. Smiley that her previous responses to him led him to believe that a videotape did exist, and he requested that she either inform him that there is no such record in existence, or [] inform him of the steps taken to locate the tape if it could not be found. Finally, Mr. Miles submitted an appeal [from the denial of] his Open Records request on December 12 to the Attorney General, and asked that Office to compel LMPD to produce the videotape, or to prove its nonexistence.
To summarize, "Ms. Smiley has apologized for any confusion that her initial responses to Mr. Miles may have caused." According to Ms. Smiley, the LMPD "receives a large volume of requests for records. Many of these requests are for copies that are made upon receipt of the request, but the requestor never shows up to inspect them, and pay the copying charges." Accordingly, Ms. Smiley frequently quotes the copying charge for the requested records, and provides the requester with copies upon receipt of the funds. Because any records requested by Mr. Miles must be mailed to him, "Ms. Smiley would (as she does for other requests from persons located outside Jefferson County) wait until payment was received before requesting copies be made" of records subject to inspection. In this manner, Ms. Smiley "attempted to be more efficient in the use of public employees' time, and taxpayer dollars." Additionally, Ms. Smiley indicated to Ms. Carlton that "Mr. Miles' request was precise in nature," so she assumed that he was requesting a copy of a videotape that he knew existed, "rather than asking whether there was one that might be obtained." As further observed by Ms. Carlton:
In the matter at hand, if Ms. Smiley had attempted to locate the videotape immediately upon [receipt] of Mr. Miles' first letter, then her initial response would have informed him that only part of his request could be fulfilled. However, with the delays already imposed by staff holidays and vacations [impermissible unless the office was closed] in November, it is very likely that Ms. Smiley still would have had to send Mr. Miles an initial response within the statutorily-imposed three-business day period, which could have told him that such records would need to be located (as her follow-up letters actually did state in them). All-in-all, it is not likely in this case that Mr. Miles would have received this information any quicker, but the confusion resulting from the mistaken impression that a record was in existence could have been eliminated. In the future, Ms. Smiley states that she intends to err on the side of caution, and to determine in advance the existence of all records, even if that means sending the initial response within three days, and following up with another response that sets forth the copying and postage charges. It is unfortunate that some individuals may choose not to inspect or receive copies of records once they have been located, but there inevitably will be some wasted staff time in complying with open records requests.
In addressing Mr. Miles' claim that his request of October 31, 2005, has either not been answered, or has been erroneously denied, Ms. Carlton notes that Ms. Smiley has already advised Mr. Miles on more than one occasion that no responsive videotape exists, "and the steps taken to ascertain this fact consist of Officer Hill's statement to her that his car has no camera." Citing 97-ORD-116, Ms. Carlton correctly observes that a "'public agency cannot furnish access to records which do not exist.'" See also 97-ORD-17; OAG 91-203; OAG 91-112; OAG 87-54; OAG 83-111. In further support of her position, Ms. Carlton quotes the following excerpt from 02-ORD-184:
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150.
Based upon the foregoing authorities, Ms. Carlton argues that Mr. Miles' appeal "must be dismissed." With respect to Mr. Miles' request to have the Attorney General investigate the statement by Officer Hill that his car is not equipped with a video camera, Ms. Carlton correctly notes that "it is not within the purview of the Attorney General to investigate the veracity of statements given by the agency from which records are requested, with regard to the existence or nonexistence of such records." To the contrary, the Attorney General is "without legislative authority to deviate form the narrow legislative mandate of KRS 61.880(2)" absent objective evidence to the contrary, as this office observed in 05-ORD-222. Aside from procedural irregularities, some of which the LMPD acknowledges on appeal, this office finds no error in the response of the LMPD to Mr. Miles' request.
As a public agency, the LMPD is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests submitted pursuant to the Act. In relevant part, KRS 61.880(1) 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 his authority, and it shall constitute final agency action.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the LMPD's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for the delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5.
01-ORD-140, pp. 3-4 (emphasis added). To the extent the initial response of the LMPD contained neither the specificity envisioned by KRS 61.880(1), nor the detailed explanation and written commitment mandated by KRS 61.872(5), the response was procedurally deficient.
In general, a public agency cannot postpone or delay this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)[,]" neither of which the LMPD invoked here. 02-ORD-165, p. 3. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. Id., citing 93-ORD-134. If, on the other hand, any of those conditions exist, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5); 02-ORD-165. In other words, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. 01-ORD-38, p. 5 (Emphasis added).
To its credit, the LMPD issued a written response in a timely fashion; any errors were apparently committed in good faith. In addition, the LMPD addresses certain deficiencies on appeal. Nevertheless, the LMPD erred from a procedural standpoint insofar as the delays were at least partially attributable to employees being on vacation as opposed to official holidays. In short, the LMPD is required to have a mechanism in place to ensure the timely receipt and efficient processing of requests submitted pursuant to the Open Records Act. While this office appreciates the challenges impeding the ability of the LMPD to comply with these requirements given the volume of requests submitted, a "public agency cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event of the official records custodian being absent, "an individual should [be] appointed as acting custodian to respond to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3 ("If the records custodian goes on vacation, or is unable to attend to his duties because of illness, or an accident, the agency is obligated to designate another person to review and handle open records requests in the absence of the regular custodian of the records"). See 05-ORD-064; 96-ORD-185. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. 02-ORD-165, p. 3. "It is incumbent on [the LMPD], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Open Records Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act],"
Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia, supra, at 1041. As repeatedly observed by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-125, p. 5.
In addressing the unique issues surrounding access to public records in this context, the Attorney General has repeatedly recognized:
An inmate in a correctional facility is uniquely situated with respect to the exercise of his rights under the Open Records Act. Although, as we have recently observed, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof," an inmate's movements within the facility are presumably restricted . . . Accordingly, an inmate must accept the necessary consequences of his confinement, including policies relative to application for, and receipt of, public records.
95-ORD-105, p. 3, citing 94-ORD-90, p. 2.<<3> See also 92-ORD-1136; OAG 91-129; OAG 89-86; OAG 82-394; OAG 79-582; OAG 79-546.
When copies of public records are requested, "the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." KRS 61.874(1). Neither this provision nor the remainder of the Open Records Act contains a waiver of this requirement for inmates. Accordingly, the Attorney General has previously held that public agencies such as the LMPD may properly require prepayment of copying fees, and enforce standard policies regarding assessment of charges against inmate accounts, despite the delay in processing the request which may inevitably result. 95-ORD-105, p. 3. To date, this holding has not been construed to authorize any delay beyond that which is reasonably necessary to ensure prepayment of copying charges. Id.
By the same token, an inmate may be foreclosed from exercising the right to inspect public records prior to obtaining copies. Although the Open Records Act contemplates access by one of two means, on-site inspection during the regular office hours of the agency or receipt of copies through the mail, the former approach to inspection may pose a problem in the restrictive environment of a correctional facility. KRS 61.872(3); 95-ORD-105, p. 3. "Obviously, an inmate cannot exercise the right of on-site inspection at public agencies other than the facility in which he is confined." Id. If the inmate is prohibited from moving freely around the facility, and is therefore unable to conduct an on-site inspection in the office where the records are maintained, "the facility is under no obligation to bring the original records to his cell for inspection. " Id.; 99-ORD-181; 96-ORD-070. Under such circumstances, a public agency may deny access. 03-ORD-152, p. 2. In the same vein, an agency is not required to furnish the records to third parties. Id. To summarize, the LMPD did not violate the Open Records Act in requiring advance payment of fees properly imposed, including postage, from Mr. Miles, as authorized by KRS 61.874(1).
Turning to the substantive issue presented, the LMPD is correct in asserting that a public agency cannot afford a requester access to records that it does not have or which do not exist. Having affirmatively indicated to Mr. Miles in writing that no videotape matching the description provided exists, albeit belatedly, and offered a credible explanation as to why no such record exists, the LMPD has now complied with the Open Records Act. In 05-ORD-264, a copy of which is attached hereto and incorporated by reference, the Attorney General conclusively resolved this issue in favor of the LMPD; further analysis is unwarranted.
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.
Terrance Eugene Miles, # 151766Dorm 6Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Alicia SmileyMedia Relations SpecialistLouisville Metro Police Department633 West Jefferson StreetLouisville, KY 40202
Kris M. CarltonAssistant County Attorney531 Court Place, Suite 1001Louisville, KY 40202
Footnotes
Footnotes
1 40 KAR 1:030 Section 6 provides: "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." In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent objective evidence to the contrary, this office assumes that Mr. Miles has received copies of the requested audiotapes. Accordingly, any issues relative to those records are now moot; only the actions of the LMPD relative to the specified videotape remain in question.
2 A fee of $ 3.00 per videotape and $ 3.00 per audiotape in addition to $ 2.00 postage was assessed to "cover the cost of materials."