Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police violated the Open Records Act in denying David Brock's January 24, 2011, request for "[a]ll pictures (black and white and color) slides of the Beverly Hills Supper Club Fire on May 27, 1977," and subverted the intent of the Act by failing to properly manage public records in contravention of KRS 61.8715 and the requirement that it "manage and maintain [its] records . . . to provide accountability of government activities." Although KSP has afforded Mr. Brock access to responsive records within its custody and control in the past, responsive records also reside in the custody of a former employee by virtue of a "common practice" at the time of his retirement whereby copies of records were made "in the event that the originals were damaged, destroyed, or lost," and, in this case, "given" to the retiring employee. These additional responsive records constitute public records to which the public must be afforded access. Moreover, KRS 61.8715 recognizes an "essential relationship" between the intent of the Open Records Act and records management statutes codified at KRS 171.410 to 171.740, and expressly requires public agencies "to manage and maintain their records according to the requirements of these statutes." KRS 61.8715. The "common practice" described by KSP's retired employee in an affidavit attached to its supplemental response raises serious questions concerning KSP's records management practices that may warrant additional inquiry by the Kentucky Department for Libraries and Archives.
In his January 24 request Mr. Brock, who is represented in this appeal by attorney Jon L. Fleischaker, commented on inconsistencies in KSP's statement that former KSP employee Ronnie Freels had no responsive pictures in his possession and its subsequent admission that Mr. Freels maintains the same records as KSP. Further, Mr. Brock questioned why KSP only permitted him to inspect black and white photographs, in response to an earlier request, when Mr. Freels has acknowledged possession of "a wide variety of color photos." KSP responded that "no records ha[d] been added or removed from the case file since his [July 27, 2009] scheduled inspection, " but extended an invitation to him "to schedule another inspection" reminding him that "the Department cannot produce for inspection documents not in its possession."
Shortly thereafter, Mr. Fleischaker initiated this appeal on Mr. Brock's behalf. He explained that Mr. Freels "is a retired KSP trooper who, upon retirement, kept some photographs taken during the course of the investigation of the Beverly Hills Supper Club fire in 1977 [, and who] freely admits to currently having possession of these photographs including several color photographs. " It was Mr. Fleischaker's position that "KSP cannot avoid its obligation under the Open Records Act by allowing its records to be held by a now retired trooper." In support, he cited Chapter 171, governing records management, and KSP's records retention schedule, requiring retention of photographs for eighty years, asserting that KSP "must provide public records held by private entities or individuals on its behalf" under the theory that "it is the nature and purpose of a document and not its physical location that controls." In closing, Mr. Fleischaker argued that "these photographs are the property of the KSP, a fact recognized by Mr. Freels. The KSP has easy access to these photographs by virtue of a simple request to Mr. Freels," and should be required to secure the photographs from Mr. Freels and produce them for Mr. Brock's inspection.
In supplemental correspondence directed to this office, KSP disputed Mr. Fleischaker's position that it is obligated "to compel a retired employee to produce copies of photographs that he permissively retained after retirement . . . [or] require a retired employee to allow Mr. Brock access to the photographs to confirm or dispel his concerns that additional investigative photographs exist depicting the fire scene." Nor, KSP maintained, is it obligated to expend additional effort to verify "Brock's assertions" that "Freels possesses case photographs that are not contained in the investigative file." KSP appends an affidavit from Mr. Freels confirming his receipt of the slides and photographs, none of which were the originals, "after retirement. "
In his affidavit, Mr. Freels states that he was a forensic specialist with KSP and retired in 2001. Continuing, he avers:
After retiring from KSP, I obtained a copy of the images pertaining to the Beverly Hills Supper Club fire investigation. It was common practice to make a copy in the event that the originals were damaged, destroyed, or lost. A copy of the images was given to me upon my retirement, those images were not an exhibit to the case file, and a KSP supervisor did not object. I did not remove any original photographs from the investigative file. I otherwise do not possess sufficient knowledge or information to respond to assertions that I possess photographs not contained in the investigative file.
Because the disputed photographs were transmitted to Mr. Freels, pursuant to a "common" agency practice, "in the event that the originals were damaged, destroyed, or lost," we find that they are, in fact, public records to which the public, including Mr. Brock, must be afforded access. KSP's refusal to retrieve them from Mr. Freels, in whose custody they were reposed as an apparent "back up" copy, constituted a violation of the Open Records Act, and its records management practices constituted a subversion of the intent of the Open Records Act within the meaning of KRS 61.880(4).
KRS 61.870(2) defines the term "public record" as "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." Hence, a record need not reside in the agency for it to qualify as a public record. Mr. Fleischaker cites a plethora of open records decisions recognizing that "the issue of a record's status as public or nonpublic turns on the record's nature and purpose, not its location." 08-ORD-253, p. 3. But for KSP's "common practice" of "mak[ing] a copy in the event that the originals were damaged, destroyed, or lost," and, in this case, entrusting them to a retired employee, the disputed photographs and slides would not reside in the custody of the latter. The records are "public records" because they are and were intended to serve as a backup copy "in the event that the originals were damaged, destroyed, or lost." They were not personal copies of public records obtained, for example, through an open records request, but were held at the instance of and on behalf of KSP and must be disclosed to the public upon submission of an open records request.
It follows that KSP is obligated to retrieve them from Mr. Freels to facilitate public access to the records on agency premises. In 04-ORD-123, the Attorney General held that city drainage records maintained by a city's contract attorney in his private law office were city records and that it was "reasonable to require their production on city premises." Id. at 4 citing KRS 61.872(1) and KRS 61.872(3)(a) . There, the records consisted of a "single file which c[ould] easily be transported the seven miles from [the attorney's] downtown office to the . . . city hall." Id. "To hold otherwise," we opined in 04-ORD-123, "creates the potential for subversion of the intent of the Open Records Act by creating undue hardships for individuals wishing to exercise their right of onsite inspection. " Here, the photographs and slides are voluminous and the distance from Mr. Freels' home to KSP headquarters somewhat greater. This, however, in no way alters our analysis. It was KSP's "common practice" to store backup copies off-site that resulted in any inconvenience, and we reject its argument that it has no obligation to "compel a retired employee to produce copies of photographs that he permissively retained after retirement. " While KSP is not obligated to "verify Mr. Brock's assertion" that Mr. Freels maintains additional responsive photographs and slides relating to the Beverly Hills Supper Club fire, it must secure those records from Mr. Freels so that Mr. Brock is afforded the opportunity to do so himself.
KSP's "common practice" of storing backup copies of public records offsite, in this case with a retired employee, in which it apparently engaged as recently as 2001, raises serious records management issues that, as noted, subverted the intent of the open records laws as well as the laws governing records management and retention, posing a threat to its statutory duty "to provide accountability of government activities." KRS 61.8715. While we trust that this practice has since been discontinued as inimical to proper records management, we have referred this open records decision and the underlying appeal to the Kentucky Department for Libraries and Archives, pursuant to KRS 61.8715, for further inquiry as that agency deems appropriate. To the extent the practice extended beyond copies of photographs and slides of the Beverly Hills Supper Club fire, additional steps may be required to recover public records residing in nonpublic hands.
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.
Distributed to:Jon L. Fleischaker, Esq.Shiann N. SharpeMatt Feltner, Esq.Barbara Teague