Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Department of Corrections violated the Kentucky Open Records Act in denying Kenny Goben's August 25, 2011, request for a "full and complete copy of the video surveillance of the LMDC Intake garage known as the 'Sallyport,' and the Intake processing area known as the 'Grill' on 12-10-09 to 12-11-09 between 6 pm to 1 am [sic] of Kenneth W. Goben being processed by Det. J.D. White in the Sallyport, and Officer Dooley in the Grill area." Mr. Goben also submitted a separate but nearly identical request on the same date for a "full and complete copy of the video surveillance of the LMDC Intake Basement/Garage known as the 'Sallyport' on 12-10-09 between 6[:00] p.m. and 12:00 a.m. which shows Det. J.D. White bring into custody Kenneth W. Goben and show[s] Det. White process and inventory Mr. Goben's property on the hood of Det. White's SUV," as well as the video surveillance recording of the "LMDC processing area known as the 'Grill' on 12-10-09 between 11:00 p.m. and 1:00 a.m. showing Kenneth W. Goben being processed by LMDC Officer Dooley involving any pat down search." Because LMDC established the nonexistence of these video surveillance recordings in 10-ORD-230, and cannot produce nonexistent recordings for inspection or copying, nor is LMDC required to "prove a negative," its final disposition of Mr. Goben's request is affirmed.
LMDC correctly observed in responding to Mr. Goben's appeal that his current request(s)/appeal is, "for all pertinent purposes, identical to the previous request[s][appeal]." This office agrees with its position that Mr. Goben's use of "slightly different wording as to which Officer may have done what, does not change the request. The fact remains that LMDC cannot produce copies of the video surveillance tapes of the processing (grill area) or intake area (Sally port) for December 10, 2009 to December 11, 2009." Because this appeal involves the same parties, the same recordings, and consequently the exact same issues presented in 10-ORD-230, 1 the analysis contained therein is controlling. A copy of 10-ORD-230 is attached hereto and incorporated by reference. LMDC is not required to "prove a negative" in order to refute Mr. Goben's repeated claim that it still possesses responsive video surveillance recordings. Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). The matter is conclusively resolved from our perspective.
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:
Kenny Goben, # 316035Mark BoltonTerri A. Geraghty
Footnotes
Footnotes
1 Having concluded that LMDC could not producevideo surveillance recordings destroyed in May 2010 due to a power outage, nor was it required to "prove a negative" in order to refute Mr. Goben's claim that such recordings existed, this office nevertheless recognized:
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. 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.