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 City of Georgetown subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 in the disposition of Tammie Nava's October 8, 2006, request for copies or transcripts of the 911 calls she placed on January 3, 2005, between 9:00 p.m. and 11:00 p.m., and "the log on the calls . . . ." 2 For the reasons that follow, we find that the city's actions constituted a subversion of the intent of the law based upon its failure to produce a copy of the record in the manner prescribed by law for a period of over one and one-half years.
A review of the documentation submitted by Ms. Nava in support of her appeal discloses the following salient facts:
1/12/05 - Ms. Nava submits an open records request to the Georgetown Police Department for "911 calls on 1/3/05 [approximately equal to] 9-11 p.m. Monday." Specifically, she requests "a copy or transcript of [her] calls" and a "copy of the log on [her] calls . . . ."
3/30/06 - Having received no written response to her original request or subsequent inquiries, Ms. Nava initiates an open records appeal to this office.
4/10/06 - Georgetown City Attorney Charlie Perkins notifies this office that "Captain Jones of the Police Department is assisting with the search" for the tape that is the subject of her January 12, 2005, request. We receive no additional correspondence from the city advising us of subsequent developments.
5/2/06 - The Attorney General issues 06-ORD-089, determining that the city violated the Open Records Act in failing to respond to Ms. Nava's request in writing, and within three business days, and in indefinitely postponing her access to the requested records, or, alternatively, advising her that the requested records could not be located and why.
5/16/06 - The City of Georgetown releases to Ms. Nava the 911 dispatch log identified in her January 12, 2005, request and advises her that the 911 tape identified in the same request was destroyed.
5/22/06 - Ms. Nava files an incident report with the Scott County Sheriff's Office in which she alleges "improper destruction of a public record subject to a pending open records request," having been advised that the requested "tape ha[d] been destroyed even though GPD was very well aware that [she] wanted it." (Emphasis in original.)
9/06 - In a conversation with Telecommunications Coordinator Jeb Warner, Ms. Nava learns that the telecommunications computer hard drive has been struck by lightning and that "all records may have been lost back to Oct. 2004." Mr. Warner confirms that he has "recently checked and that's how far they were saved . . . ." Mr. Warner directs Ms. Nava to resubmit her January 12, 2005, request for the audiotape of 911 calls she placed on January 3, 2005, between 9:00 p.m. and 11:00 p.m.
10/8/06 - Ms. Nava resubmits her request for the same audiotape she has previously been advised was destroyed.
10/13/06 - The City of Georgetown notifies Ms. Nava that the tape she requested on October 8 "has been copied by the Telecommunications Department . . . [and] may be pick[ed] up at [her] convenience."
Sometime thereafter, Ms. Nava obtained a copy of the tape from the city, attaching a copy of same as an exhibit to her letter of appeal and alleging that the Department subverted the intent of the Open Records Act "by failing to afford [her] timely access to the tape of the 1/3/05 911 calls . . . ."
In supplemental correspondence directed to this office following commencement of Ms. Nava's appeal, Mr. Perkins amplified on the city's position. He advised:
Ms. Nava's request was for all 911 calls on January 3, 2005. She was given copies of those calls. It took several days to manually review the hours of tapes of three separate days to find the call[s] involving Nava. The tapes must be reviewed in real time. Not having approximate times or days has been a serious problem.
Enclosed is Leeann Fryman's affidavit that she is the dispatcher who has located many of Ms. Nava's calls. She located them within a minimum time in light of the uncertain dates and times. Calls were also made to Ms. Nava to help clarify her requests.
The copies were made and given to Ms. Nava. The Georgetown Police Department record does not contain written responses or receipts reflecting the date on which the tapes were given to Ms. Nava but all tapes were given shortly after the request was made in January 2005.
. . .
Within the last three months, since September, 2006, Ms. Nava called the Telecommunications Department and spoke to Fryman. For the first time Ms. Nava said there was an error in earlier responses to her requests, including the request dated January 12, 2005, the subject of this appeal. Ms. Nava re-filed an open records request October 8, 2006, requesting the January 3, 2005, tape. Fryman reviewed the tapes again and found a call that appeared to be connected to the subject matter of Ms. Nava's request. That tape was given to her as she notes in her appeal packet.
In a letter dated November 7, 2006, Ms. Nava disputes these statements, asserting that she received no records in response to her January 12, 2005, request for over one year. 3 She further asserts that she only obtained the requested 911 tape after resubmitting the January 12, 2005, request on October 8, 2006, having learned from Mr. Warner that records dating back to October 2004 existed on the agency's hard drive. Ms. Nava questions the city's statement that "[i]t took several days to manually review the hours of tapes of three separate days to find the call[s]," and that "[n]ot having approximate times or days has been a serious problem. " She notes that she had, in fact, provided a single specific date, January 3, 2005, and an approximate two hour time frame, 9:00 p.m. to 11:00 p.m., in her request, and that when the record was, at long last, produced for her inspection in October 2006, it had been located on that date and during that time. Finally, Ms. Nava objects to the city's statement that although the city's records do "not contain written responses or receipts reflecting the date on which the tapes were given to Ms. Nava," copies were made and given to her "shortly after the request was made in January 2005." She again notes that the city did not fulfill her request until after she resubmitted the January 12, 2005, request on October 8, 2006. Our review of the record on appeal confirms Ms. Nava's position in its entirety.
In 06-ORD-089, an open records decision arising from a dispute involving the same parties and the same record, but an earlier request for the record that was largely ignored by the City of Georgetown, this office declared that the city violated the Open Records Act by, inter alia, failing to respond to the earlier request for a period of more than one year. A copy of 06-ORD-089 is attached hereto and incorporated by reference, and, in particular, the discussion at pages 2 and 3 relating to the city's continuing violation of KRS 61.880(1). Contrary to the argument advanced by the city, in both appeals, that it honored Ms. Nava's January 12, 2005, request "shortly after" she submitted that request, the record on appeal clearly demonstrates that it was not until October 2006 that Ms. Nava finally obtained the requested record and then only as a result of the resubmission of that request and through her sheer persistence. This continuing violation was egregious, and the record on appeal suggests no mitigating factors. 4 We are advised that the city has undergone a change in administration. While the errors and omissions of the past administration should not be imputed to the new administration, we strongly urge the new administration to take appropriate corrective measures to insure that these violations of the Open Records Law do not recur.
This office's decision in 06-ORD-089 was predicated on the assumption that the city conducted an unproductive search for the responsive record upon receipt of Ms. Nava's January 12, 2005, request, or sometime after she initiated her appeal of the city's failure to respond to that request in March 2006. At page 4 of that decision, we observed:
In KRS 61.8715, the General Assembly recognized "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and 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 these statutes." It is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed. 03-ORD-005; 04-ORD-108. While there is no evidence in the record before us that the City of Georgetown willfully concealed or destroyed records responsive to Ms. Nava's request, we urge the agency to implement measures aimed at insuring accountability and access through proper records management. In that spirit, we have referred this matter to the Department for Libraries and Archives for any further inquiry that agency deems warranted.
Based on the evidence now before us, consisting of the facts set forth above, we believe that we may have been too generous in our assessment. That evidence is indicative of an obvious disregard for the Open Records Act resulting in its ultimate subversion within the meaning of KRS 61.880(4). Given the gravity of our findings and conclusions in the decision we issue today, we have again referred this matter to the Department for Libraries and Archives for further investigation and inquiry as that agency deems appropriate. KRS 61.8715. It is for Ms. Nava, and not this office to present any evidence of willful concealment of a public record to the appropriate prosecutorial authorities, pursuant to KRS 61.991(2)(a), if she believes sufficient evidence exists to support such a complaint.
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 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Ms. Nava obtained the requested log on May 16, 2006, as evidenced in supporting documentation attached to her letter of appeal.
3 As noted, on May 16, 2006, the city released the requested dispatch log.
4 The city's April 10, 2006, supplemental response to Ms. Nava's March 30, 2006, appeal of the city's disposition of her January 12, 2005, request, referenced that request and appeal only once, indicating that she had "requested a fourth tape, for which she notes Captain Jones of the Police Department is assisting with the search." See, 06-ORD-089. Despite the fact that "the fourth tape" was the subject of that appeal, the city focused on her February 1, 2006, request for audiotapes of 911 calls placed on three separate dates in January 2006. It is unclear whether the city was simply confused or whether it was attempting to deflect criticism for its mishandling of the January 2005 request. Whatever the case, we believe that the city's haphazard approach to Ms. Nava's request, as well as the law, resulted in a clear subversion of the law.