10-ORD-230

10-ORD-230

December 22, 2010

In re:        Kenny Goben/Louisville Metro Department of Corrections

        Summary:        Louisville Metro Department of Corrections cannot be said to have violated the Open Records Act in ultimately denying request for video recordings that no longer exist; however, the record on appeal raises various records management issues that warrant review by the Kentucky Department for Libraries and Archives.                

Open Records Decision

        At issue in this appeal is whether the Louisville Metro Department of Corrections violated the Kentucky Open Records Act in the disposition of Kenny Goben’s October 18, 2010, request for “a copy of the surveillance video of Metro Corrections when I was brought in by Det. J.D. White on Dec. 10, 2009 sometime between 9[:00] p.m. and midnight” as well as “the video of the ‘Grill’ areas of intake where Officer Dooley claims to have found contraband on my person,” and his November 4, 2010, request for a copy of the “video surveillance of the [LMDC intake] basement, where unknown black officer inventoried and took money ($429) from my wallet on 12-10-09 between the hours of 6[:00] p.m. to 12[:00] [a.m.] on the hood of his SUV” and “the video surveillance of [LMPD intake] and processing room (known as the Grill) where on 12-11-09 between 12 [a.m.] and 1 am Officer Dooley with the LMDC performed pat down search and inventoried property.”  Having received no response to either of his requests, Mr. Goben initiated this appeal by letter dated November 15, 2010. Based upon the limited evidence presented, this office is unable to find that LMDC committed a procedural violation of the Act; likewise, the agency’s ultimate disposition of the requests cannot be said to violate the Act insofar as no responsive video recordings currently exist and the agency has notified Mr. Goben of that fact and explained why.  However, the record suggests possible records management and retention issues that warrant a referral to the Kentucky Department for Libraries and Archives for additional inquiry as that agency deems appropriate consistent with KRS 61.8715.  

        Upon receiving notification of Mr. Goben’s appeal from this office, Assistant Jefferson County Attorney Stephen P. Durham responded on behalf of LMDC, initially advising that Pam Windsor, LMDC Director of Communication, had informed him that “neither document was received by the agency until” it received the notification of his appeal.  Although this office cannot resolve the factual issue concerning delivery and receipt of the requests, and thus makes no finding in this regard,¹ Mr. Durham further advised that “such video records are routinely retained for a period of one year, although there is no videotape for this date and time.  The video was originally recorded with expectations that it would be retained for one year.”  Due to a power outage at LMDC in May 2010, Mr. Durham explained, “the data contained on DVR 9, which contained the surveillance video referred to in this request, was irretrievably corrupted. All video archived on that DVR was irretrievably corrupted. Unfortunately, the record Mr. Goben sought, (if it existed), became unavailable, before he made his request.”  

        Insofar as LMDC has now affirmatively indicated that no such recordings exist, has explained the reason for the nonexistence of those recordings, and is necessarily unable to make nonexistent recordings available for inspection or copying, this office must conclude that LMDC did not violate the Open Records Act; however, because LMDC apparently has a practice of maintaining such recordings for only a year when the applicable retention period is two years, and the corruption of all data contained therein could likely have been avoided if an effective backup system had existed, a referral to KDLA for additional review is appropriate.

         As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought 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. 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 a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist as LMDC ultimately asserted here. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; 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; 94-ORD-140. To the contrary, KRS 61.880(2)(a) narrowly defines our function relative to disputes arising under the Open Records Act.

        Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records,² the Act only regulates access to records that are “prepared, owned, used, in the possession of or retained by a public agency.”  KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky’s Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. 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). When, as in this case, a public agency denies that any such records exist, and the record on appeal does not refute that contention, further inquiry by this office is unwarranted. 05-ORD-065, pp. 8-9; 02-ORD-118.

        In responding to Mr. Goben’s appeal, LMDC advised that any responsive video recordings were destroyed in May 2010 due to a power outage. LMDC now finds itself in the untenable position of having to “prove a negative” in order to conclusively refute Mr. Goben’s claim that such records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed “that before a complaining party is entitled to such a hearing [to refute the agency’s claim that records do not exist], he or she must make a prima facie showing that such records do exist.”³  In a series of decisions issued since Bowling, this office has been obliged to affirm public agency denials of requests based on the nonexistence of the records being sought in the absence of a prima facie showing that the records being sought did, in fact, exist. See, for example, 07-ORD-188 and 07-ORD-190 (copies enclosed). The same result follows here. Holding otherwise would result in LMDC “essentially hav[ing] to prove a negative” in order to refute a claim that such records currently exist. 07-ORD-190, p. 7.

         As previously indicated, however, the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171.  Pursuant to KRS 61.8715, the enactment of which this office characterized as a “watershed in the evolution of the Open Records Law[,]” public agencies are required “to manage and maintain [their] records according to the requirements” of the Open Records Act, KRS 61.870 - 61.880, and the State Archives and Records Act, KRS 171.410 – 171.740, in order “to ensure the efficient administration of government and to provide accountability of government activities. . . .”  94-ORD-121, p. 8. In addressing the “essential relationship” between these chapters, the Attorney General has further observed:

        Until July 15, the State Archives and Records Act, codified at KRS 171.410, tracked a parallel path to that of the Open Records Act. Those paths now converge. Under the provisions of the Archives and Records Act, “[t]he head of each state and local agency shall establish and maintain an active continuing program for the economical and efficient management of the records of the agency.”  KRS 171.680. The agency’s program must provide for:

(a) Effective controls over the creation, maintenance, and use of records in the conduct of current business;

(b) Cooperation with the department in applying standards, procedures, and techniques designed to improve the management of records;

(c) Promotion of the maintenance and security of records deemed appropriate for preservation, and facilitation of the segregation and disposal of records of temporary value;

(d) Compliance with the provisions of KRS 171.410 to 171.740 and the rules and regulations of the department [for Libraries and Archives].

Among the duties imposed on the agency head by operation of these provisions, he must “establish such safeguards against removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740.”  KRS 171.710. These safeguards include "making it known to all officials and employees of the agency that no records are to be alienated or destroyed except in accordance with law, and calling attention to the penalties provided by law for the unlawful removal or destruction of records.”  KRS 171.710

        In enacting KRS 61.8715 the General Assembly recognized that the intent of the Open Records Act, to provide full access to public records, was essentially related to, and would be promoted by, efficient records management. This, of course, is the intent and purpose of the State Archives and Records Act. Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act. If a public agency fails to discharge its statutorily mandated duty to establish effective controls over the creation, maintenance, and use of records, and to make known to all of its officials and employees that no records are to be destroyed except in accordance with the law, the agency subverts the intent of the Open Records Act by frustrating full access to public records.

94-ORD-121, p. 8-10. In other words, “the key to records access is effective records management.”  Id., p. 10.

        Given the statutorily recognized interrelationship between records management and records access, the record on appeal raises an issue regarding the records management practices of the agency insofar as the video in dispute was “recorded with expectations that it would be retained for one year” and “such video records are routinely retained for a period of one year. . . .”  Pursuant to KRS 171.420, the State Archives and Records Commission is authorized to “review and approve schedules for retention and destruction of records submitted by state and local agencies.”  Additionally, the Commission is charged with the duty to “establish standards for the selective retention of records of continuing value,” and the Department for Libraries and Archives with the duty to “assist state and local agencies in applying such standards to records in their custody.”  KRS 171.530.  Of particular significance, the Commission exercised this authority in creating the Louisville Metro Records Retention Schedule, developed pursuant to KRS 171.530 and promulgated into regulation at 725 KAR 1:061, the Metropolitan Correctional Services portion of which contains a Records Title of “Grill Video” (“a video record of activity and behavior of inmates and officers upon arrest and intake of inmates”/”Video of actions in the intake area”), identified as Record Series No. L5166, the retention period for which is two years, with Disposition Instructions to “Tape Over or Destroy” when that period has ended.

            Inasmuch as the LMDC admittedly has a practice of maintaining records that fall into Record Series No. L5166 of its own Records Retention Schedule for only a year, as opposed to the required two years, the Attorney General is obliged to refer this matter to the KDLA, consistent with KRS 61.8715, for additional inquiry as that agency deems warranted.  Additional justification for this action stems from the apparent failure of the LMDC to notify the KDLA, under the mandate of Chapter 171 of the Kentucky Revised Statutes, by submission of a records destruction certificate when all of the data contained on “DVR 9,” which included the requested surveillance video, was “irretrievably corrupted.”  This office, having consulted with KDLA on this issue, also notes that destruction of that data may have been preventable had adequate safeguards, i.e., “surge protection,” recommended backup and offloading procedures, etc. been employed to lessen its vulnerability.⁴  Nevertheless, LMDC cannot produce that which it does not have nor can it be said to have violated the Open Records Act under the circumstances presented.

        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.

                                                Jack Conway

                                                Attorney General

                                                Michelle D. Harrison

                                                Assistant Attorney General

#393

Distributed to: 

Kenny Goben, #316035

Mark Bolton

William P. O’Brien

Stephen P. Durham