Request By:
Aaron Robert Michael Sheppard
Col. Ralph Miller, Jr.
Walter L. Cato, Jr.
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 Shively Police Department violated the Open Records Act in the disposition of Aaron Sheppard's July 18, 2009, request for copies of "materials relating to a motor vehicle stop conducted on July 3, 2009, on or about 8:14 PM by Officer Martin, badge number 7081, [that took] place on the property of the Jefferson Mall, Louisville, KY, . . . including but not limited to, in car video, police reports, police notebook entries, and any data collected . . . ." Mr. Sheppard received no response to his request, prompting him to initiate this appeal on July 25, 2009. For the reasons that follow, we find that the Department violated the Act in the disposition of his request.
By letter dated July 23, 2009, Shively Police Chief Ralph Miller denied Mr. Sheppard's request for the in car video recordings "in accordance with KRS 61.878(1)(l) and 189A.100(2), which states that release of recordings from police cruisers shall only be used for official purposes through a court of law." Chief Miller provided Mr. Sheppard with a copy of the citation issued on July 3, 2009.
In supplemental correspondence directed to this office following commencement of Mr. Sheppard's appeal, Shively City Attorney Walter L. Cato, Jr., defended his client's response. With reference to the Department's delay in issuing that response, Mr. Cato observed:
The letter from Mr. Sheppard . . . was dated July 18. It was both faxed and sent by certified mail. According to Mr. Sheppard's letter of appeal dated July 25, the fax request was transmitted to the Shively Police Department fax number on July 18, a Saturday. Chief Miller is the office custodian as defined in KRS 61.870(5). Open Records Requests, according to department policy, are directed to his attention and for his response. On July 18 and 19 (Saturday and Sunday) Chief Miller was not on duty. From July 20 to July 22 Chief Miller was away from the office due to a medical operation for a family member. On the morning of July 22 he received Mr. Sheppard's faxed and mailed requests. He prepared and signed a response one day later (July 23) and deposited in a mail box the written response one day later (July 24).
In light of these facts, Mr. Cato maintained that Chief Miller's response was "timely submitted within three days of receipt of the official custodian. "
Turning to the substantive issue on appeal, Mr. Cato disputed Mr. Sheppard's argument that the Department's reliance on KRS 61.878(1)(l) and KRS 189A.100(2) was misplaced because Mr. Sheppard was not charged with an offense under KRS 189A. Mr. Cato asserted:
189A.100(2) provides for an exemption and 61.878(1)(l) does not include qualifying language which restricts the application of 61.878(1)(l) to cases to which the exemption statute applies.
In addition, Mr. Cato acknowledged that although he did "not know the status of Mr. Sheppard's citation," KRS 61.878(1)(l) 1 might also authorize nondisclosure of the in car video recording. He suggested that release of the recording could involve "premature release of information to be used in a prospective law enforcement action. " In closing, Mr. Cato argued that disclosure of an "unaltered, unmodified, and otherwise uncensored" copy of the recording was impossible since "editing would be necessary to remove extraneous footage of video relating to matters unrelated to Mr. Sheppard's citation." We find the Department's arguments, both procedural and substantive, unpersuasive.
To begin, the Attorney General has long recognized that the absence of an agency's records custodian does not toll the agency's response time. As recently as January 2009, this office determined that an agency violated KRS 61.880(1) in failing to respond to an open records request, in writing and within three business days of agency receipt, owing to the absence of the agency's records custodian. At pages 3 and 4 of that decision, we observed:
The absence of the City's records custodian did not toll its response time. The parties agree that Ms. Clark called the City Clerk on December 19 and was advised that the clerk "was not in the office." The City maintains that she was further advised that the City Clerk would return on December 22. Nothing in the Open Records Act permits an agency to postpone release of public records because its records custodian is unavailable. On this issue, the Attorney General has opined:
09-ORD-018, pp. 3-4, citing 00-ORD-226, p. 2; see also 06-ORD-131, pp. 4-5. Based on these authorities, we believe that, in the Chief's absence, it is incumbent on the Shively Police Department to designate an alternative records custodian to process open records requests in a timely fashion. Its failure to do so, in this instance, constituted a violation of KRS 61.880(1).
We find no support in the law for the proposition that a confidentiality provision incorporated into the Open Records Act by KRS 61.878(1)(l) precludes access to a record to which that confidentiality provision does not apply. As Mr. Cato correctly notes, KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 189A.100(2)(e) does, in fact, authorize nondisclosure of filmed or videotaped recordings of field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 . 2 KRS 189A.100(2)(e) provides:
Recordings shall be used for official purposes only, which shall include:
1. Viewing in court;
2. Viewing by the prosecution and defense in preparation for a trial; and
3. Viewing for purposes of administrative reviews and official administrative proceedings. Recordings shall otherwise be considered as confidential records
In 93-ORD-133, this office affirmed the Kentucky State Police Department's denial of a request for a videotape made at the time of an arrest for DUI, because the requester had not been charged with DUI. "Under the express terms of KRS 189A.100(2)[(e)]," we concluded, release of the recording to the requester was "strictly prohibited." 93-ORD-133, p. 2; accord, 05-ORD-270. Resolution of both of the referenced decisions turned on the fact that a DUI arrest had been made and recordings of field sobriety tests had been taken.
The record on appeal before us is devoid of any such showing, a clear and absolute precondition to invocation of KRS 189A.100(2)(e). Neither Chief Miller nor Mr. Cato assert that Mr. Sheppard was arrested for DUI or that the requested recordings document field sobriety tests administered on him. Mr. Sheppard, on the other hand, flatly denies that he was arrested for DUI and that sobriety testing was conducted. Absent clear proof to the contrary, and bearing in mind that the Department is statutorily assigned the burden of proof in sustaining its denial, 3 we concur with Mr. Sheppard in the view that the Department cannot properly "cull[] contextually dependent phrases and apply such a distortion here." KRS 189A.100(2)(e) is facially inapplicable, and the Department's denial postulated on this provision constituted a violation of the Open Records Act.
We find equally unpersuasive the Department's belated reliance on KRS 61.878(1)(h), authorizing the withholding of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.] . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In another recently issued open records decision, this office concluded that an agency failed to meet its burden of proof in invoking KRS 61.878(1)(h) to deny an open records request. At pages 6 and 7, we observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
08-ORD-013, pp. 6, 7; see also, 95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
The Department has not articulated, nor can we infer, any harm to the agency that would result from the premature disclosure of the requested in car video recording. Chief Miller did not invoice KRS 61.878(1)(h) in his original denial, much less articulate how his Department would be harmed by disclosure of the recording. Having failed to inquire into the status, or indeed the nature, of Mr. Sheppard's citation, Mr. Cato could only speculate on whether the Department would be harmed by premature release of information to be used in a prospective law enforcement action. Because the Department is, as noted above, statutorily assigned the burden of proving harm through disclosure of the in car video, and none is shown, we find that the Department improperly relied on KRS 61.878(1)(h) in denying this portion of Mr. Sheppard's request.
Finally, we find that the record on appeal does not support the Department's claim that "editing would be necessary to remove extraneous footage of video relating to matters unrelated to Mr. Shepphard's citation." If indeed portions of the video are unrelated to his citation, and otherwise statutorily protected, it is incumbent on the Department, pursuant to KRS 61.878(4), to "separate the excepted and make the nonexcepted material available for inspection" and to cite the exception authorizing partial nondisclosure in a written response. Notwithstanding Mr. Sheppard's request for an "unaltered" copy, the Department is obligated to discharge its statutory duties under the Act, including the duty to redact, if redactions are appropriate. If not, the recording must be released 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 We assume that the exception was miscited, and that Mr. Cato intended to invoke KRS 61.878(1)( h ).
2 KRS 189A.010 prohibits "operating motor vehicle[s] with alcohol concentration of or above 0.008, or of or above 0.02 for persons under age twenty-one, or while under the influence of alcohol or other substance which impairs driving ability . . . ."
3 See KRS 61.880(2)(c).