Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
By letter directed to Meade County Sheriff William "Butch" Kerrick on May 27, 2014, Elaine Matthews requested "an intact, complete, true copy" of then Deputy Bryan Rogers' CD containing the pictures and video derived from the memory card of the digital camera that he used when responding to her 911 calls on December 9, 2012. Ms. Matthews asked for "disclosure as to the handling of the original storage card seized by Rogers; this requests to know where the original storage card now is, who now has it; and to know its Chain of [Custody] from the time the storage card was seized by Rogers." In a timely written response, Office Manager Pam Knott advised Ms. Matthews that she was attaching the "CD with the video/ audio that was obtained from the digital camera card. I do not have any information on the handling or the whereabouts of the original digital camera card. " Ms. Matthews then filed the instant appeal, questioning the discrepancy between the length of the CD that she received from the Sheriff's Department and that of the copy that she received from the Meade County Attorney. She further asked, "What is the required professional standard as to the handling of evidence seized? "
Upon receiving notification of Ms. Matthews' appeal, the Department confirmed that it "has provided Elaine Matthews with all the videos/ cd's that we have pertaining to her situation. We do not have any other video/ cd's that has not been provided to Ms. Matthews. The Meade County Sheriff's Department has no knowledge of any video that shows a convertible car in it." Ms. Matthews subsequently acknowledged that the question of "whether the CD is or is not intact cannot be satisfied or, to put it more accurately, cannot be satisfied to my satisfaction. As it is a 'he said, she said' sort of situation it can go no further. So that can be put to the side." 1 However, Ms. Matthews reiterated her concern as to "whether or not there are legal requirements" pertaining to how county sheriff's departments handle evidence that has been obtained and requested "clarification on that question." Assuming the accuracy of Ms. Knott's May 29, 2014, letter stating that "no information on the handling or whereabouts of the original digital camera card" exists in the custody or possession of the Department, Ms. Matthews asked this office to address whether the lack of a record containing such information is "questionable." 2
The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Rather, KRS 61.880(2)(a) narrowly defines our scope of review in resolving disputes arising under the Open Records Act. Whether the Department properly maintained evidence, i.e. , complied with the Kentucky Rules of Criminal Procedure, is a question that falls beyond that scope. See 00-ORD-120 ("Attorney General is not empowered to examine allegations of 'possible violations of . . . [the] Kentucky Penal Code' in the context of an open records appeal"); 12-ORD-110 (Even assuming challenged action was taken, "whether the agency followed the required procedures or complied with governing law(s) aside from the Open Records Act is not a question that can be resolved here"); 12-ORD-162 (The "proper interpretation of KRS 147A.027 or a determination of what exactly is required to achieve full compliance therewith is beyond our purview"). Accordingly, our analysis is confined to issues arising under the Open Records Act - namely, whether the Department violated the Act in declining to comply with Ms. Matthews' request for information and/or nonexistent records.
In asking "where the original storage card now is, who now has it; and to know its Chain of [Custody] ," Ms. Matthews requested information rather than public records. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144; 10-ORD-156. Accordingly, the Attorney General has consistently recognized that the "public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information. 04-ORD-080, p. 13, citing OAG 87-84. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id. p. 5, OAG 91-12, p. 5. See KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records "). (Emphasis added.)
A public agency is normally required to make any non-exempt records that may contain the information being sought available for inspection, assuming that any exist. 10-ORD-156, p. 3. However, the Department advised Ms. Matthews that it did not possess "any information on the handling or the whereabouts of the original digital camera card. " Ms. Knott subsequently clarified, albeit verbally, that no chain of custody form was ever created. The Department cannot produce a nonexistent record(s) for inspection or copying nor is the agency required to "prove a negative" in order to refute a claim that a certain record(s) exists under governing case law in the absence of any existing legal authority mandating its creation or any objective proof that such a record(s) was created to begin with. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); see also 07-ORD-188; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011); 12-ORD-195. The Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in disputes arising under the Open Records Act are thus generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record(s), and, if so, whether the record(s) is open to public inspection. Having provided the only existing responsive CD to Ms. Matthews, denied that any responsive documentation, including a chain of custody form, exists, and ultimately provided a plausible explanation of why, the Department has discharged its duty from an Open Records perspective.
Either party may appeal this decision 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:
Elaine MatthewsWilliam "Butch" KerrickJessica Brown Roberts
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