Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Adair County Sheriff's Department violated the Open Records Act in denying Scot and Debbie Baird's August 22, 2012, request for "[a]n uncut/unedited copy of the security footage (recorded video/ audio) on August 14, 2012, from all cameras located within the Adair County Judicial Center Building including but not limited to the second floor and the hallway in the holding area (not the holding cells)." In the event the Sheriff could not provide them with a copy of the record, the Bairds requested that he identify the official custodian of the requested video/ audio tape. We find that if the videotape was "prepared, owned, used, in the possession of or retained by" the Sheriff, it is a public record of his agency for purposes of open records analysis and must be disclosed to the Bairds unless one or more of the exceptions to the Open Records Act found at KRS 61.878(1)(a) through (n) protect it from disclosure. If not, no error can be assigned to his office.
The Bairds' open records request was prompted by a series of unsuccessful attempts, both formal and informal, to obtain a copy of the videotape from the Sheriff and from the Adair Circuit Court Clerk. Over a period of several days, they were directed from the clerk's office to the sheriff's office, and back again, a number of times. They were advised, at various times, that "the cameras outside the courtroom and the recorded footage from them are controlled by the Sheriff," that the Sheriff "would have to request a copy from the Circuit Clerk, " "that many people request and receive copies of security footage from [the sheriff's office] . . . [and] the Sheriff already has a hard copy of the video, " and that "the judge controls releasing copies [of security footage] . . . ." On August 28, 2012, Adair County Sheriff Harrison Moss denied their request, asserting that "the AOC 1 records are an exempt to the open records [sic]. The applicable case is Ex Parte Farley ."
In response to this office's questions, 2 Sheriff Moss denied that security cameras and tapes in the courthouse belong to his office and that he maintains copies of security footage outside the courtroom. He also denied that his office has provided copies of security tapes to other requesters in the past, notwithstanding statements attributed to his employees to the contrary, but acknowledged that he "uses" the cameras and footage "in maintaining a secure facility for AOC." The duty to maintain a secure facility, he indicated, was statutorily assigned to him by KRS 23A.090 and 24A.140.
KRS 23A.090(1) requires the sheriff in the county in which the circuit court is sitting to "provide such deputies, certified court security officers, and ordinary equipment as the Chief Circuit Judge shall deem necessary to provide security services to the court and its facilities." The statute does not define the term "ordinary equipment," or otherwise indicate who is responsible for maintaining security cameras and footage. However, in 11-ORD-014 and 09-ORD-211 this office determined that the sheriffs of Knott and Greenup Counties violated the Open Records Act in denying requests for courthouse security tapes. The Greenup County Sheriff argued that the requester could obtain the tape from the Commonwealth's Attorney or the court but indicated that he, too, could produce it. The Knott County Sheriff argued that he was not obligated to produce the tape because of ongoing litigation with the requester. He did not, however, indicate that he could not produce the tape. In both decisions this office held that unless the tapes were shielded from disclosure by one or more of the exceptions found at KRS 61.878(1)(a) through (n), they must be disclosed to the requester. Copies of both open records decisions are enclosed.
The record on appeal reflects the same inconsistent statements concerning custody and control of the requested tape. Critical to our analysis, however, is the Sheriff's statement that he "uses" the footage "in maintaining a secure facility for AOC." A record that is "used" by a public agency is a public record of that agency under the definition of the term "public record" found at KRS 61.870(2). 3 In 11-ORD-014, the sheriff attempted to avoid his duty to produce the record in response to an open records request by misdirecting the requester to other agencies in possession of the records that were not statutorily obligated to produce them. If, as the Bairds allege, and the Sheriff does not deny, the Sheriff used and possessed the requested tape, he was obligated to provide them with a copy of the tape in response to their open records request unless he properly invoked one or more exceptions to disclosure and explained how the exception(s) applied to the tape. Under these circumstances, the failure to do so constituted a violation of the Open Records Act. If he did not use or possess the tape, the Sheriff's actions cannot be deemed a violation of the Act.
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:
Scot and Debbie BairdHarrison MossJennifer Hutchison-Corbin
Footnotes
Footnotes
1 Administrative Office of the Courts.
2 KRS 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation."
3 KRS 61.870(2) provides:
"Public record" means 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 . "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
(Emphasis added.)