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 Greenup County Sheriff violated the Open Records Act in the disposition of James Sparks' August 1, 2011, request to "view 1 the surveillance video pertaining to the robbery that occurred at the Subway in South Shore, Ky. on September 17, 2008 . . . ." 2 The Department's initial response to Mr. Sparks' request advised him that the video had previously been disclosed to his attorney. The Sheriff later suggested that he should obtain a copy of the video from the Commonwealth's Attorney or the courts. These responses violated the Act insofar as neither contained "a legally recognized basis for denying an open records request." 3 00-ORD-16, p. 4.
In correspondence directed to this office after Mr. Sparks initiated his appeal, Greenup County Sheriff Keith M. Cooper stated that he had previously advised Mr. Sparks "that all of the materials he requested had been made available to his trial attorney and have been since his trial." Continuing, Sheriff Cooper noted that all records relating to Mr. Sparks' criminal prosecution are "contained in the case file with the circuit clerk, Allen Reed, as well as the file with the Commonwealth's Attorney," suggesting that he should obtain the records from these agencies. Sheriff Cooper expressed his willingness "to comply with whatever the law requires," but emphasized that he wanted to proceed "through proper channels." It is the decision of this office that the law requires Sheriff Cooper to provide Mr. Sparks with a copy of the surveillance video, if he has a copy of it in his possession, upon prepayment of copying and postage charges, and notwithstanding the availability of the video from other sources, assuming the video is not shielded from disclosure by one or more of the exceptions found at KRS 61.878(1)(a) through (n).
This office has long recognized that "[t]here is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " OAG 90-71, p. 2, cited in 93-ORD-65 (holding that "if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency"); 94-ORD-121 (holding that the availability of a requested record in a university library did not relieve the university of the duty to release the nonexempt public record); 97-ORD-87 (holding that a public agency "cannot withhold public records from an applicant simply because the records may be obtained from another source"); see also 98-ORD-17; 01-ORD-94; 04-ORD-203; 06-ORD-166; 07-ORD-241; 09-ORD-141. These decisions establish that an agency cannot avoid its duties under the Open Records Act by deferring to another public agency but must, instead, determine, within three business days of receipt of a request for records in its custody and control, whether a statutory basis exists for denying the request and, if so, promptly notify the requester. If not, the agency must immediately produce the records for inspection or mail copies upon receipt of prepayment for copies and postage.
Although Mr. Sparks was not obligated to submit alternate requests per the Sheriff's direction, had he elected to do so neither the circuit court 4 nor the Commonwealth's Attorney 5 was legally obligated to disclose the requested surveillance video. Sheriff Cooper is legally obligated to disclose it if he has a copy. This assumes, again, that Mr. Sparks can prepay reasonable copying and postage costs and that the video does not enjoy statutory protection under one or more of the exceptions to the Open Records Act. Accordingly, we find that the Greenup County Sheriff's Department violated KRS 61.872(1) in the disposition of Mr. Sparks' request by directing him to obtain the surveillance video from another agency.
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:
James Sparks, # 206161Keith M. CooperMichael C. Wilson
Footnotes
Footnotes
1 The Department is not obligated to provide Mr. Sparks with a free copy of the surveillance video. KRS 61.872(3)(b) and KRS 61.874(3). Because Mr. Sparks is currently incarcerated at Eastern Kentucky Correctional Complex, and cannot conduct an on-site inspection of the video, we assume he has sufficient funds in his inmate account to prepay for copying and postage charges. The copying charge assessed cannot exceed the actual costs incurred by the Department in reproducing the video not including the cost of staff required.
2 Mr. Sparks complains that the Department did not respond to his August 1 request but acknowledges that on August 8, 2011, he received an unsigned and undated letter, on Greenup County Sheriff's letterhead, advising him that the requested record was previously given to his attorney and urging him to submit his request to his attorney. He suggests that this response is somehow related to a separate appeal involving access to witness statements purportedly in the Sheriff's custody, Open Record Appeal -- Log Number 2011000277. Based on the Sheriff's supplemental response to Mr. Sparks' appeal, we find Mr. Sparks' argument unpersuasive and are therefore unwilling to assign error to the Sheriff for his alleged failure to respond to the August 1 request.
3 The Sheriff faxed a second supplemental response on September 14, 2011, citing, for the first time and without explanation, Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992). Because the Sheriff did not cite the exception authorizing nondisclosure of the disputed record, and KRS 61.880(1) requires the Sheriff to "include a statement of the specific exception authorizing the withholding of the record," along with a brief explanation of how that exception applies to the record withheld, his second supplemental response is deficient and does not alter our analysis or conclusion.
4 Ex parte Farley, 570 S.W.2d 617 623 (Ky. 1978) (holding that "the custody and control of the records generated by the courts in the course of their work . . . are not subject to statutory regulation [specifically, the Open Records Act] ."
5 KRS 61.878(1)(h) recognizing, in part, that:
[R]ecords or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.