Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government Division of Enhanced 9-1-1 violated the Open Records Act in the disposition of requests submitted by the Lexington Professional Firefighters IAFF Local 526 on July 29, and August 26, 2008, for "all audio, video, and cad logs from the structure fire at 218 Jefferson Street on July 17, 2008." In his initial records request, First Platoon Representative Todd J. Samuelson included, but did not limit his request to, "911 telephone calls, radio traffic on all channels, administrative calls and other audio or video . . . related to the fire." In his subsequent request, Mr. Samuelson again sought access to "all audio, video, and cad logs from the structure fire," but specified records that included "911 telephone calls, radio traffic on all channels, administrative calls, and other audio or video, including video from the Alarm Room that . . . related to the fire." For the reasons that follow, we find that the Division's disposition of the Firefighters' requests violated both the procedural and substantive provisions of the Act. Because the Division's admitted destruction of one of the records identified in the request raises records management questions, we have referred this matter to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems warranted.
In a response dated July 30, 2008, Director of Enhanced 9-1-1 David S. Lucas denied Mr. Samuelson's initial request, explaining that the requested documents "are part of an ongoing investigation," and relying on KRS 61.878(3). 1 On August 15, 2008, Mr. Samuelson resubmitted his request, having learned that the investigation was closed, but was notified that he must submit a new request. On August 26, Mr. Samuelson did so, and on August 29 Mr. Lucas advised him that because the requested records were "voluminous and not centrally located," it would "take some time to process [his] request." Mr. Lucas indicated that he would "update [Mr. Samuelson] by letter in 5-7 business days as to the status of the request." On September 11, Mr. Lucas notified Mr. Samuelson that the requested cad logs, audio tapes, and a transcript of the 911 call were available, but explained that the tape of the 911 call itself was "exempt pursuant to KRS 61.878(1)(a)." Mr. Lucas denied Mr. Samuelson's request for the "video from the Alarm Room," because it was "destroyed during the archiving process."
Shortly thereafter, Lexington Professional Firefighters IAFF Local 526 initiated this appeal through its president, Chris Bartley, questioning the premature destruction of the video. In supplemental correspondence, the Division denied any impropriety in the video's destruction, explaining that the video tape "could not be provided because it was destroyed during the normal archiving process," and that it "was simply due to oversight not for the intent of covering anything over."
The Division's disposition of the Firefighter's requests violated KRS 61.880(1) which requires that the denial of an open records request 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." Mr. Lucas's July 30 response to the Firefighters' initial request contained an erroneous citation to an inapplicable provision of the Act. His response to the Firefighters' subsequent request did not conform to KRS 61.872(5) requiring any delay in release of public records beyond three business days to be accompanied by "a detailed explanation of the cause . . . and the place, time, and earliest date on which the public record [s] will be available for inspection." The Division's August 29 response contained neither a detailed explanation of the cause for delay or a statement of the earliest date, time and place when the records would be available, and therefore violated the procedural requirements of the Act referenced above.
The Division also violated the substantive provisions of the Open Records Act in the disposition of the Firefighters' requests. In releasing only a transcript of the 911 call, as opposed to the audio tape of the call, the Division invoked KRS 61.878(1)(a) but offered no explanation supporting nondisclosure. A review of the transcript of the tape discloses nothing of a personal nature, and certainly nothing of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. For this reason, we find that, with the exception of the caller's name and identifying information, the public interest in regulation is superior to the caller's privacy interest in the contents of the telephone call. It is the opinion of this office that 08-ORD-205, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. It is the position of this office that public agencies do not, in all cases, discharge their obligations under the Open Records Act by releasing written summaries of 911 calls in lieu of the recordings of the 911 calls themselves, and that, in the absence of a substantiated privacy interest that outweighs the public's interest, the Division violated the Open Records Act in releasing only a written transcript of the call.
Additionally, it is the position of this office that destruction of a record before the records access dispute has been conclusively resolved is inconsistent with the principles of proper records management. The fire occurred, and the video from the Alarm Room was created, on July 17, 2008. Mr. Samuelson submitted his first request on July 29 and his second request on August 15, each request arriving before the thirty day retention period had expired. Although the Division required him to submit a new request that was not transmitted until August 26, Mr. Samuelson expressed his interest in obtaining the video in each of these earlier requests. 2 The disputed video recording falls within the parameters of Records Series L5468 3 of the Lexington-Fayette Urban County Government Retention Schedule, which establishes a thirty day retention period for "Surveillance Video/ Audio Recordings, " and disposition instructions that authorize destruction or re-use after thirty days "if no litigation is pending." Because Mr. Samuelson's open records request was pending, the video recording should have been retained. The Division's failure to retain it suggests improper records management practices. See 04-ORD-108; 04-ORD-161 ("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. See, e.g., Guidelines for Managing Email in Kentucky Government (June 17, 2003) at page 7 and 03-ORD-005). 4
The Firefighters allege that the destruction of the video was intentional. The Division denies that the destruction was intentional or otherwise improper. We are not equipped to resolve this dispute. Suffice it to say that whether intentional or unintentional, the Division's destruction of the video was premature and that its actions in this regard impeded the Firefighters' right of access to the public record. Thus, the record on appeal does not contain proof of willful concealment of a public record, but is indicative of a disregard for the statutorily recognized essential relationship that exists between records management under Chapter 171 of the Kentucky Revised Statutes and records access under Chapter 61 of the Kentucky Revised Statutes that may warrant additional inquiry by the Kentucky Department for Libraries and Archives. KRS 61.8715. We have therefore referred this matter to KDLA for any action that agency deems appropriate.
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 The provision upon which the Division relied does not authorize denial of public records but instead authorizes release of exempted public records to public agency employees if those records relate to the employee. In its supplemental response, the Division relied on KRS 61.873(3), a provision that does not exist in the law.
2 We reject the Division's argument that Mr. Samuelson did not identify the video in this initial request. Mr. Samuelson requested "all 911 communication electronic or written, including but not limited to" the specified records as well as "any other available 911 information." This description was sufficiently broad in its scope to extend to the Alarm Room video.
3 Record Series L5468 "document[s] the activities in public areas of facilities used by or owned by urban county governments and agencies, including the inside and outside of those facilities and anywhere the public has access."
4 Assuming, arguendo, that the video does not fall within Record Series L5468, but is instead an unscheduled record, it is equally well established that, as an unscheduled public record, it "should have been retained by the agency until a retention schedule was established for it." See, e.g., 04-ORD-040, p. 3, 07-ORD-182, p. 8; 08-ORD-049, p. 1.