11-ORD-217
December 21, 2011
In re: Sam Aguiar/Lexington-Fayette Urban County Government, Department of Public Safety
Summary: Lexington-Fayette Urban County Government properly destroyed the requested 911 recording in the normal course of business pursuant to applicable records retention schedule(s), prior to appellant’s challenge of its partial denial, and it cannot produce a nonexistent record for inspection or copying. Analysis contained in WLEX Communications, LLC v. Lexington-Fayette Urban County Government regarding mootness doctrine is controlling; accordingly, this office does not address the question of whether LFUCG properly redacted information from the recording on the basis of KRS 61.878(1)(a).
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government, Department of Public Safety1 violated the Kentucky Open Records Act in partially denying Sam Aguiar’s May 31, 2010, request (directed to LFUCG Division of Police) for “[a]ll 911 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 that concern any incidents occurring at the Burger King located at [4200 Saron Drive, Lexington, KY 40515 from March 21, 2009, to present].”2 By letter dated June 17, 2010, Mr. Aguiar requested any public records (within the meaning of KRS 61.870(2), as paraphrased above) relating to “[a]n injury incident occurring on March 21, 2009, between 12-4 p.m.” at the referenced location “involving a slip and fall in the restaurant.” Four days later, he resubmitted this request, specifically asking for the “EMS/fire run report for Sylvia Goins regarding the above-described incident.” In a response dated June 23, 2010,3 Director of Enhanced 9-1-1 David S. Lucas, LFUCG Department of Public Safety, relied upon KRS 61.878(1)(a) in advising Mr. Aguiar that the Department could not provide him with a copy of the 911 recording because “you are not the person that made the call.” The Department agreed to provide Mr. Aguiar with a transcript of the conversation upon receipt of the copying and postage costs.4
Mr. Aguiar did not challenge this disposition of his request until September 2011, at which point the 911 recording had been properly destroyed in the normal course of business per the Disposition Instructions for the appropriate Record Series of the Local Governments General Records Retention Schedule.5 The nonexistence of the recording in dispute renders the substantive question regarding application of KRS 61.878(1)(a) moot; accordingly, the Attorney General makes no finding as to whether LFUCG properly withheld the information redacted on the basis of KRS 61.878(1)(a). The analysis of the mootness issue contained in WLEX Communications, LLC v. Lexington-Fayette Urban County Government, 2007 WL 1300976 (Ky. App.) is directly on point.6
Rather than appeal the partial denial of his request per KRS 61.880(2), on September 19, 2011, Mr. Aguiar filed a Notice-Motion on behalf of his client, Sylvia Goins, in the underlying civil action, Sylvia Goins v. Burger King Corporation, Case No. 10-CI-00005, in Fayette Circuit Court, Division Seven, requesting “an Order compelling the Lexington Fire Department to produce the [unredacted] 911 transcript as well as the audio from the incident that occurred at Defendant Burger King Corporation’s place of business on or about March 21, 2009 . . .” He noted that he “subpoenaed the information, only to be provided with the same redacted transcript.” Although not a party to the civil action, LFUCG filed a response, arguing that KRS 61.880(2)(a) and 61.882(1) “provide the sole statutory relief for denials of an open records request.”
In addition to addressing the substantive question regarding application of KRS 61.878(1)(a), LFUCG asserted that “[a] civil case in which the [agency] is not a party, nor has an attorney of record, is simply not the proper forum to decide the open records issue of whether an individual has an expectation of privacy when calling 911 for assistance.” A precedent would be set, counsel for LFUCG reasoned, “if the Plaintiff’s attorney is granted an unauthorized third avenue of appeal” by which to challenge the denial of a request made under the Open Records Act “in a private civil matter outside the recognized statutory framework.” Finally, LFUCG observed, “the issue is moot as an unredacted copy of the 911 call no longer exists.” LFUCG mailed its response on or about June 23, 2010, counsel noted, and Mr. Aguiar waited more than a year to challenge the denial in the wrong forum. Because the “retention schedule for 911 calls is sixty days,” and the recording at issue was therefore erased and no longer exists, LFUCG contended the issue was moot, relying upon WLEX Communications, above, in support of its position.
The court apparently issued a verbal order holding Mr. Aguiar’s motion in abeyance and instructed him to follow the statutory framework to appeal the denial of his request. However, on November 1, 2011, Mr. Aguiar filed a Motion to Reconsider, noting that since its ruling on his original Motion he submitted another written request to the LFUCG “Division of Fire,” along with a subpoena, but had not received a response. According to Defendant Burger King’s response, a copy of which is of record, the LFUCG “affirmatively stated that a response denying the Plaintiff’s request as duplicative and in search of documents that no longer exist was forwarded to the Plaintiff in early October 2011[.]” Following the court’s denial of his Motion to Reconsider, Mr. Aguiar initiated this appeal by letter dated November 18, 2011, focusing exclusively on the merits of the substantive question presented which, as previously indicated, this office does not reach in light of the governing case law, WLEX Communications,7 above. In responding to Mr. Aguiar’s appeal, the LFUCG argued that, like WLEX, Mr. Aguiar “contributed to the mootness doctrine by waiting over 400 days from the date of the partial denial of his request to appeal to an improper forum.” This office agrees that WLEX Communications is controlling on the facts presented.
In that decision, the Kentucky Court of Appeals concluded that “the issue in this case is nonjusticiable and not subject to the ’capable of repetition, yet evading review’ exception to the mootness doctrine,” and therefore dismissed the appeal by WLEX of a summary judgment entered by the Fayette Circuit Court in favor of LFUCG following its appeal of 04-ORD-161 (holding that LFUCG had not presented sufficient proof to justify its denial of a request for a specific 911 recording on the basis of KRS 61.878(1)(a)). There, as in this case, the 911 recording in dispute was properly destroyed in the normal course of business and was no longer available for inspection. Since the recording no longer exists, the Court reasoned, “we clearly cannot compel LFUCG to produce it for public inspection.”
Noting the controversy was “no longer a ‘live’ one,” the Court further noted that WLEX had encouraged it “to review the matter on the grounds that it ‘significantly affects the public interest’ and is likely to recur.” Disagreeing with this assertion, the Court observed:
Unless there is an actual case involving a present, ongoing controversy, the issues surrounding it become moot. Our courts are not at liberty to give advisory opinions-even on important public issues. Philpot v. Patton 837 S.W.2d 491 (Ky.1992). Indeed, our courts lack jurisdiction to decide issues that do not arise from a live controversy. See Commonwealth v. Hughes, 873 S.W.2d 828 (Ky.1994), citing In Re Constitutionality of House Bill No. 222, 90 S.W.2d 692 (Ky.1936)(“Power to render advisory opinions conflicts with Kentucky Constitution Section 110 and thus cannot be exercised by the Court”).
However, as WLEX duly notes, a dispute that is said to be “capable of repetition, yet evading review” presents an exception to the mootness doctrine. We agree that where such an exception applies, courts do have the discretion to consider issues otherwise regarded as nonjusticiable. However, this exception is quite limited and narrowly-drawn.
The decision whether to apply the exception involves two questions: whether (1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again.
Philpot, 837 S.W.2d at 493, citing In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir.1988).
This case falls squarely within the mootness doctrine. If we were to reverse the court's order with respect to LFUCG's decision not to release the copy of the 911 call recording, the reversal would have no effect as the recording has been destroyed and is no longer subject to public disclosure. Although the matter arguably involves an issue of public importance, it is not subject to “capable of repetition, yet evading review” exception to the mootness doctrine. There is no reasonable expectation or possibility that the same complaining party will be subject to the same action again or even that the precise factual scenario could ever be duplicated. We note parenthetically that WLEX has contributed to the applicability of the mootness doctrine and that our review is precluded at least in part by its own delay in seeking a legal opinion from the attorney general.
(Emphasis added.)
No unredacted copy of the requested 911 recording currently exists. That fact is undisputed. As a practical matter, this office could not afford Mr. Aguiar the relief that he seeks even if the WLEX Communications, above, was not controlling. Further, as in that case, if the Attorney General were to find that LFUCG had improperly redacted the information withheld on the basis of KRS 61.878(1)(a), that decision would “have no effect as the recording has been destroyed and is no longer subject to public disclosure.” Although not dispositive, Mr. Aguiar’s delay in pursuing this matter (in the proper forum), like that of WLEX, “contributed to the applicability of the mootness doctrine.” Because LFUCG destroyed the subject 911 recording in the normal course of business, pursuant to the applicable Disposition Instructions of the LFUCG Records Retention Schedule, and the Local Governments General Records Retention Schedule, and cannot produce that which it does not have for inspection or copying, the Attorney General finds no error in the agency’s disposition of Mr. Aguiar’s request. In light of WLEX Communications, consideration of the substantive question presented is unnecessary and this office makes no finding with regard to application of KRS 61.878(1)(a).
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
#419
Distributed to:
Sam Aguiar
David S. Lucas
Michael R. Sanner
[1] David S. Lucas, Director of Enhanced 9-1-1, Department of Public Safety, initially responded to Mr. Aguiar’s request. Because Mr. Aguiar directed his request to the Division of Police, and now appeals from the “refusal of the Lexington Fire Department . . . to allow inspection of an unredacted 911 call record,” yet LFUCG has advised that the “Division of Enhanced 911” retained the recording for one year, the record on appeal is unclear as to which agency should be identified as the appellee. Inasmuch as each of these agencies presumably falls under the Department of Public Safety, which is a department within the LFUCG, this office has identified the LFUCG, Department of Public Safety as the appellee for the sake of simplicity.
[2] The initial request identified the date as March 21, 2004; however, March 21, 2009, is the date to which Mr. Aguiar consistently refers elsewhere in the correspondence of record.
[3] In apparently failing to either issue a written response within three business days of receiving Mr. Aguiar’s May 31 request, and provide him with access to any existing responsive records per KRS 61.880(1), or provide a detailed explanation of the cause for delay and the specific date upon which the records would be provided, in accordance with KRS 61.872(5), LFUCG violated the Open Records Act from a procedural standpoint.
[4] Requiring advance payment is permissible under KRS 61.874.
[5] In responding to Mr. Aguiar’s appeal, LFUCG confirmed that it maintained the documentation related to Mr. Aguiar’s request for one year, well beyond the 60 day retention period applicable to 911 recordings in the absence of a pending request or appeal, found in the Lexington/Fayette Urban County Government Records Retention Schedule. Specifically, Record Series L6436, “Dispatch Recordings,” found in the Public Safety, Enhanced 911 section of the LFUCG Schedule, is the Series “used to document and record all Enhanced 911 related calls whether made by phone or radio,” and may include “calls from individuals, police officers, EMS, or firemen,” which are “recorded automatically as the call comes in to the agency.” The “system will write over tape or CD at the appropriate time – 60 days.” The retention period for this Record Series is therefore 60 days, with instructions to “Destroy or re-use” at the expiration of the period, unless “there is litigation, an open records request or investigation involving these records,” in which case “all destruction ceases.”
Specifically, LFUCG advised that the Division of Enhanced 911 “retained the 911 tape at issue for one year pursuant to the regular retention schedule. At the expiration of one year the 911 tape was destroyed pursuant to the regular retention schedule.” During this year, LFUCG noted, Mr. Aguiar “did not appeal” or give notice of any intention to appeal from the partial denial of his request. In response to a verbal inquiry by the undersigned Assistant Attorney General, counsel for LFUCG clarified that its position was implicitly based on the Local Governments General Records Retention Schedule, Record Series L4963, entitled “Open Records Request for Inspection/Disposition Record,” which documents all “requests for information from the public, press, or other governing agency” and includes the “Date of request, requesting party name, information requested, copies needed or only viewing, disposition, [and] supporting documentation for decision.” The Disposition Instructions for this Record Series provide that such documentation should be retained for one year and then destroyed.
[6] Even if WLEX Communications did not apply, this office would nevertheless have no basis upon which to conclude that LFUCG violated the Open Records Act in light of the well-established principle that a public agency cannot produce a nonexistent record(s) for inspection or copying nor is a public agency required to “prove a negative” in order to refute a claim that a certain record(s) exist in the absence of a prima facie showing that such a record(s) exists by the requester. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) and prior decisions by this office, including 11-ORD-122. Having affirmatively indicated to Mr. Aguiar in writing that the requested record no longer exists, and offered a credible explanation for the nonexistence of said record, LGUCG could not be said to have violated the Act in denying the request assuming that it made “’a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record[s] requested’.” 11-ORD-014, p. 5, quoting 05-ORD-109, p. 3.
[7] CR 76.28(4)(c) directs that opinions not designated to be published, such as WLEX Communications, above, “shall not be cited or used as binding precedent” unless rendered after January 1, 2003, and “there is no published opinion that would adequately address the issue before the court.” This exception applies here.