Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Taylorsville Police Department violated the Open Records Act in the disposition of Lawrence Trageser's November 20, 2013, request to inspect the department's standard operating procedures. For the reasons stated below, we find that the Act was violated to the extent that such written procedures exist and are followed.
Mr. Trageser's November 20 letter to the Chief Toby Lewis requested "any and all records reflecting the City of Taylorsville Police, STANDARD OPERATING PROCEDURES." (Emphasis in original.) He stated, "Petitioner is requesting an inspection of all above documents before purchasing. Petitioner is requesting cost proposal for full S.O.P.'s." On November 25, 2013, Taylorsville City Clerk Stephen A. Biven replied:
In regards to the Standard Operating Procedures of the police department and the corresponding cost for purchase; at this time there are no records available that relate to that request. Under KRS 61.878(1)(i) and (j) "preliminary documents, including drafts" are exempt from the open records request [sic]. The records that you have asked for fall under that exemption. There are no finally accepted S.O.P.'s.
Mr. Trageser appealed to the Attorney General on December 5, 2013, arguing that there must be standard operating procedures for a police department: "The existence of these documents is a reasonable and expected reality among private sector businesses, governmental agencies and most certainly law enforcement agencies." He asserts that the nonexistence of any final version of the SOP's used by the department is "absurd" and questions whether the approval of the procedures by the city commission is necessary. "However," he argues, "there are S.O.P's, that are currently being used by the Chief of Police Toby Lewis and his officers for the purpose of providing instruction, training, direction and rules of conduct and general operation of the City of Taylorsville Police Department."
The agency's response to Mr. Trageser's appeal is unenlightening. Mr. Biven, in a letter dated December 13, 2013, reiterates:
As previously stated, there have been no S.O.P.'s presented to the Taylorsville City Commission for review or adoption. The Chief of Police is currently working on a draft that will in time be presented for approval. A similar draft document was prepared in 2005, but never advanced to the stage of being presented to or adopted by the City Commission.
Mr. Biven does not clarify whether, and under what law, approval or adoption of SOP's by the City Commission is necessary for them to go into effect; nor does he state whether the police department is currently operating under any written standard operating procedures at all.
It seems extremely unlikely that the Taylorsville Police Department has no type of written policies or general orders in effect whatsoever. 1 There may be a semantic disagreement concerning what constitutes "standard operating procedures" as opposed to other types of written directives. In his December 5, 2013, letter of appeal, Mr. Trageser explains what he meant by the term in the context of his request:
Standard Operating Procedures would be those documents providing instruction, procedure of duties and implementation of any and all aspects of the Police Departments [ sic ] operations to include the Chief of Police and all officers and or employees. These documents would cover everything from facial hair or tattoos being shown, vacation policies and the correct procedure for high speed chases.
This clarifying definition, however, has not altered the City Clerk's response.
Mr. Trageser, on December 12, 2013, provided this office with a copy of the position description apparently used by the City for the job of police chief, which he claims gives the police chief the authority to enact standard operating procedures without approval by the City Commission. The position description states in part: "Under general administrative direction from the City Clerk, ? [t]he Chief of Police in the exercise of his/her duties shall have the power to prescribe, formulate, and enforce policy, procedure, and rules and regulations for the government of the Department, none of which shall be inconsistent with the ordinances of the City, laws of the State, or any other written policy of the Department."
This document is silent on whether such policies and procedures require approval by the City Commission; however, there are references to the Chief's being required to "submit a fiscal budget to the City Commission" and to "make all appointments and promotions in the Department subject to the confirmation of the Mayor and City Commission." While the document's silence as to policies and procedures may tend to suggest that approval by the City Commission is not necessary, we note that a position description is not law and thus provides no definitive guidance.
Having insufficient evidence to determine whether the police department has some form of written standard operating procedures currently in effect, or is (possibly, though improbably) effectively operating without any, we conclude that a violation of the Open Records Act occurred if, and to the extent that, any written standard operating procedures are currently being used by the department. As Mr. Trageser acknowledges, procedures that are truly in the draft stage and not yet in effect would be subject to the "preliminary" exceptions in KRS 61.878(1)(i) and (j).
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.
# 464
Distributed to:
Mr. Lawrence TrageserMr. Stephen A. Biven
Footnotes
Footnotes