Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in not providing audio and video recordings, grand jury tapes, and trial recordings. We find that KSP violated the Open Records Act in failing to indicate to a requester that it did not have possession of records, but did not violate the Open Records Act in failing to provide records it did not have in its possession and records exempted from public inspection by law.
Leslie L. Lawson ("Lawson") submitted an open records request to KSP on Nov. 19, 2013. Lawson requested the "investigative report by the State Police on Anthony Simmons," and specifically:
copies of all photos and hand written and recorded statements by all individuals (more specifically Stevie Collins; Anthony Simmons; and Rodney Dewayne Mays) interviewed by Kentucky State detectives or any other law agencies that may have assisted in the investigation. This request is also to include a copy of the grand jury testimony on August 7, 1998 of any and all State Police personnel and arrest report on all suspects.
KSP responded on Nov. 26, 2013, notifying Lawson that "copies of these documents have been obtained and will be released to you upon payment of the appropriate fees." KSP further informed Lawson that certain personal information had been redacted, as well as "several pages of NCIC data transmissions . . . pursuant to KRS 17.150(4) . . . and 61.878(1)(l)."
Lawson initiated an appeal to this office on Dec. 4, 2013. Lawson generally questioned whether KSP could withhold information that is considered part of the record and open for inspection. Specifically, Hawkins asked whether the National Crime Information Center ("NCIC") data transmissions and the taped statements of the individuals made during the investigation were open for inspection. Lawson further asked whether the Clay County Circuit Court Clerk may refuse to release grand jury tapes, the portions of the taped statements presented for the grand jury, and copies of the original trial tapes in Com. v. Simmons . Lawson included a copy of KSP's response, but did not include a copy of his open records request. This office notified Lawson of that deficiency on Dec. 13, 2013. Lawson subsequently cured that deficiency by providing a copy of his initial request and the agency response on Dec. 14, 2013.
KSP responded on Jan. 14, 2014. Regarding the audio and video recordings, KSP admitted that its initial response "failed to clearly state that there were no audio or video recordings contained within its file," and stated that it could not provide a record it does not have. Regarding the withholding of NCIC reports, KSP stated that KRS 17.150(4) exempts centralized criminal history records. KSP concluded by citing KRS 61.874(1) to justify its requirement of prepayment for copies of records.
Regarding the audio and video recordings, "a public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. However, "a public agency's response violates KRS 61.880(1), 'if it fails to advise the requesting party whether the requested record exists.'" Id. In failing to advise Lawson that the audio and video recordings did not exist or were not in its possession, KSP violated KRS 61.880(1).
Regarding the grand jury tapes, KSP stated that it did not have them. Further, they are not subject to public inspection. RCr 5.24 provides that "all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret." 1 KRS 61.878(1)(l) exempts from public inspection "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential." Accordingly, KSP did not violate the Open Records Act in not providing grand jury tapes that it did not have, and which are exempt from inspection.
Regarding the NCIC tapes, while KSP did not deny that it had possession of them, KRS 17.150(4) provides that "centralized criminal history records are not subject to public inspection. " Accordingly, the NCIC records are exempt from inspection pursuant to KRS 17.150(4) and KRS 61.878(1)(l), and KSP did not violate the Open Records Act in withholding them.
Regarding the trial tapes in Com. v. Simmons , KSP indicated that it did not have them. Trial tapes are retained by the courts, and not KSP. Further, a circuit court clerk "is not bound by the provisions of the Open Records Act . . . disputes relating to access to court records must be resolved by the court." 98-ORD-6. Accordingly, KSP did not violate the Open Records Act in failing to provide records not in its possession.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Leslie L. Lawson # 122950Emily M. Perkins
Footnotes
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