Request By:
James Drennen
10 Virginia Court
Mt. Sterling, KY 40353Colonel Michael Schnell
Chief of Police
Mount Sterling Police Department
418 East Main Street
Mt. Sterling, KY 40353Crystal Stull Brashear
City Attorney
Community Trust Bank Bldg., Suite 305
Mt. Sterling, KY 40353
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 Mount Sterling Police Department violated the Kentucky Open Records Act in denying the request of James Drennen for "the tape, or identical copy thereof, made by Officer Number 245 (cannot read signature) on October 12, 2005 at approximately 9[:00 p.m.], of the "traffic stop resulting in citation # H058705." In accordance with OAG 92-111 and its progeny, this office affirms the denial of Mr. Drennen's request; the specified audiotape is not a public record within the meaning of KRS 61.870(2).
In a timely written response, Colonel M. Schnell, Chief of Police, advised Mr. Drennen that he is "not the custodian of that record" nor does he "have any control or responsibility for it." According to Chief Schnell, it "is not an official record of the Mount Sterling Police Department." To the contrary, the "digital recorder is privately owned by the officer and the recording is his personal property [to do] with as he sees fit." Because Chief Schnell has "not personally heard the recording" and does "not know if it even currently exists," Chief Schnell advised Mr. Drennen that he is unable to honor the request.
By letter dated January 15, 2006, Mr. Drennen initiated this appeal, explaining that he "wrote an account of a traffic stop" that was published in the local newspaper, the Mt. Sterling Advocate . Shortly thereafter, the MSPD disputed his description of the incident in the same newspaper, "by way of a secret recording that officers had made" during the traffic stop. According to Mr. Drennen, he called the publisher of the Mt. Sterling Advocate , Matt Hall, who explained that he acquired a copy of the tape in response to the Open Records request that he submitted. In Mr. Drennen's view, "there are things on that recording the police don't want [him] to hear, or perhaps they know [he] could tell if the tape has been altered." Even assuming that an officer can legally record a traffic stop "secretly," the person "he recorded should be allowed to hear it," especially if the officer is "trying to use it against that person."
Upon receiving notification of Mr. Drennen's appeal from this office, Crystal Brashear, City Attorney, responded on behalf of the MSPD. Having spoken with Chief Schnell, Sergeant/Detective David Charles, and Mr. Hall of the Advocate , Ms. Brashear advises this office the MSPD "does not have in its possession any tape recordings of a traffic stop made on October 12, 2005"; Chief Schnell has neither "observed nor heard any tape recording and Detective Charles, who is the evidence custodian, does not have any tape in relation to such stop in his possession." According to the named individuals, any such recording "was made by the officer on his own private record[er] and is in the officer's personal possession." In other words, the officer was "not ordered or directed to make any tape recording and was not provided any equipment to make any tape recordings. " As observed by Ms. Brashear, any recording made by the officer with his personal equipment "is his own personal property and not property of the [MSPD]."
Contrary to Mr. Drennen's assertion, the Mt. Sterling Advocate did not receive a copy from the MSPD pursuant to an Open Records request; "the officer provided it to the Mt. Sterling Advocate and the Advocate then sent an Open Records Request to the [MSPD]." No action was taken by the MSPD since it does "not have any recording and also because the paper had already received a copy through permission of the officer." Citing the definition of "public record" codified at KRS 61.870(2), Ms. Brashear reiterates the officer "was not ordered or directed to make any tape recording and was not provided any equipment to make any tape recordings. " Accordingly, the MSPD is "of the opinion that any such tape recording does not fall into the definition of a public record. " Since the recording is "not a public record, not a part of the case report for the traffic stop, and is the personal property of an individual," the MSPD is unable to provide Mr. Drennen with a copy.
As long recognized by the Attorney General, a public agency cannot afford a requester access to records which it does not possess or records which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the KSP obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. 1 In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating the agency does not possess any responsive records (or none exist) as the MSPD did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-205; 02-ORD-144; 94-ORD-140. 2 To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a); this office is without authority to deviate from that statutory mandate. 3
In OAG 92-111, this office departed from a prior line of decisions, holding that an audiotape of a public meeting "falls squarely within the parameters of the definition, and must be treated as a public record if the tape is prepared, owned, used, in the possession of the public agency and is made at the direction of the agency ." Id., p. 1 (emphasis added). Such is not the case here. Of particular relevance, the Attorney General observed:
Nor do we mean to suggest that a secretary or clerk who personally purchases a tape and records the meeting on his or her own initiative to assist in the preparation of the minutes, must release the tape for public inspection. Under these circumstances, the tape could not be treated as a public record, but would instead be considered the clerk's personal property . See e.g., OAG 83-194 (holding that a copy of a deposition prepared by a stenographer is not a public record) . Our holding is limited to those instances when the agency directs that a tape be made of its public meeting, for whatever purpose, and that tape is purchased with agency funds . (Emphasis added).
Id., p. 3. 4 See 99-ORD-121; 93-ORD-105; 93-ORD-105; 92-ORD-1058. Compare 00-ORD-230; 97-ORD-14. Because the instant appeal presents no reason to depart from this line of reasoning, the Attorney General finds no error in the response of the MSPD.
In denying Mr. Drennen's request, Chief Schnell emphasized that he is not the custodian of the record at issue, nor is the record within his control or realm of responsibility; it is "not an official record of the [MSPD]." To the contrary, the officer whose actions are being challenged owns the digital recorder so the "recording is his personal property. " On appeal, Ms. Brashear validates this position, having spoken with Chief Schnell, Detective Charles (the evidence custodian) , and Mr. Hall, all of whom confirmed the MSPD does not have any record which is responsive to Mr. Drennen's request in its possession. Because the requested audiotape was not "prepared, owned, used, in the possession of or retained by" the MSPD, as evidenced by the record, the MSPD fully complied with the Open Records Act by affirmatively indicating as much to Mr. Drennen in a written response within three business days, and providing a credible explanation for the lack of possession and custody.
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 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.
2 Likewise, questions relating "to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3. See 04-OMD-182; 04-ORD-032; 02-ORD-89.
3 In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy the burden of proof imposed by KRS 61.880(2)(c), an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records, and the record does not refute that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
4 To the extent OAG 92-111 conflicted with OAG 79-33, OAG 87-44, OAG 88-32, OAG 89-93, and OAG 91-49, those opinions were modified accordingly.