Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. HarrisonAssistant Attorney General
Open Records Decision
Lawrence Trageser initiated this appeal challenging the denial by Spencer County Clerk Lynn Hesselbrock of his December 23, 2014 request for "any document or record, reflecting the video taping of all actions within the Spencer County Clerk's Office for the date of Friday December 19, 2014." Mr. Trageser advised that "the video should provide the recorded actions within the complete office to include all areas, from 12:01 a.m. of the 19th to 11:59 p.m. of the 19th so noted above." In a timely written response, Clerk Hesselbrock advised Mr. Trageser that she was unable to fulfill his request because it "would require the creation of an electronic document in the form of a backup flash drive. " She noted that a public agency is not required to compile information or create a document in order to comply with a request made under the Open Records Act nor is a public agency required to provide a record in a format different from that in which it already maintains the record. Clerk Hesselbrock further advised that her office "currently does not maintain flash drives, DVDs or any other form of electronic documents of video surveillance of this office."
Mr. Trageser subsequently initiated this appeal, clarifying that he "did NOT request a specific format, either hard copy or electronic, nor did [he] mandate, demand or even reference details of any format. " He further maintained that Clerk Hesselbrock's lack of a flash drive (s), DVD(s), etc. has no bearing on the disposition of his request. Mr. Trageser provided this office with photographs of the security cameras located in the Clerk's office as "documented proof." He further advised that Clerk Hesselbrock petitioned the Spencer County Fiscal Court in 2014 "for the purchase and installation of a new recorder for those same cameras, " and received its approval, documentation of which Mr. Trageser also provided.
Citing Records Series L5364 of the Local Agency Records Retention Schedule, "Surveillance Video/ Audio Recordings, " Mr. Trageser correctly observed that such recordings have a retention period of thirty (30) days. In his view, "it would be absurd to believe that a recorder and multiple cameras have been installed and yet there is no record available to view of the footage for the very day that pertains to [his] request or that a simple copy could not be produced of the requested time frame. " Mr. Trageser also noted that the Fiscal Court, which "fee pools" with Clerk Hesselbrock, maintains cameras, documents meetings, and produces copies on DVD upon request for $ 1.00. He asked "to view the video of the time frame in question" and, if upon review, he desires to have a copy made, to be provided with one for the approved fee of $ 1.00.
Upon receiving notification of Mr. Trageser's appeal from this office, Spencer County Attorney Kenneth S. Jones responded on behalf of Clerk Hesselbrock. Mr. Jones explained that a private contractor, Wesley Martin, installed a video system in the Clerk's office which recorded to a DVR. However, the DVR was removed from the office by Officer Carl Reesor and County Judge Bill Karrer "at an earlier time for reasons unrelated to this appeal." Mr. Jones further advised that "Clerk Hesslebrock was under the assumption that the video was being saved on the hard drive. " Upon receipt of Mr. Trageser's request, Clerk Hesselbrock called Mr. Martin and requested his assistance in retrieving video from the specified time frame. Mr. Martin advised Clerk Hesselbrock that her DVR lacked a hard drive. Mr. Jones observed that "[i]t appears that the record/video did not exist at the time of [Mr. Trageser's] request." He advised Clerk Hesselbrock to retain the DVR in question for verification purposes.
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office subsequently contacted Mr. Jones to inquire as to whether Clerk Hesselbrock had received any documentation to substantiate this explanation. On January 23, 2015, Mr. Jones provided this office with a copy of the letter directed to Clerk Hesselbrock on January 8, 2015, by Mr. Martin. In that letter, Mr. Martin advised Clerk Hesselbrock that "[t]he machine is giving us an error code stating no HDD meaning no Hard Disk Drive. That means that either the hard drive is no longer functioning or does not exist in the machine. " Mr. Martin further observed that, "the system was in place prior to your taking office. It was originally sold and installed by another company. If you want to use the existing device as a monitoring system, there is no reason to change anything." Clerk Hesselbrock cannot provide that which she does not have.
As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. However, in addressing the obligations of a public agency when denying access to public records for this reason, the Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9 (other citations omitted). While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3 (emphasis added); 09-ORD-145. In short, [i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
A public agency violates KRS 61.880(1) "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that records being sought do not exist following a reasonable search, and explaining why, as the Clerk ultimately did. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 03-ORD-205, p. 3; 14-ORD-204. The Attorney General has expressly so held on many occasions. 04-ORD-205, p. 4; see 99-ORD-98; 03-ORD-205; 09-ORD-145. It was therefore incumbent on the [agency] to ascertain whether records exist[ed] that [were] responsive to Mr. [Trageser's] request, to promptly advise [him] of [its] findings, and to release to [him] all existing [nonexempt] records identified in [his] request." 03-ORD-207, p. 3. Insofar as the Clerk initially failed to determine whether a responsive video actually existed, and then promptly advise Mr. Trageser that none was created, the agency violated the Act. See 09-ORD-145; 10-ORD-137; 14-ORD-225. However, Clerk Hesselbrock cannot be said to have violated the Open Records Act in denying access to a nonexistent recording.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 1 and the Attorney General has applied a high standard of review to denials based on the nonexistence of records ever since KRS 61.8715 was enacted in 1994, 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) . Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120. Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is this office "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
Clerk Hesselbrock initially failed to confirm the nonexistence of the requested video recording but remedied this error in responding to Mr. Trageser's appeal. Because Clerk Hesselbrock ultimately confirmed that no responsive video recording exists and provided a plausible explanation for the nonexistence of the recording in writing, the Attorney General finds no error in the agency's final disposition of Mr. Trageser's request in the absence of any objective proof that such a recording was created or currently exists. See 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 14-ORD-107; compare
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 11-ORD-074 (recognizing that the "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable").
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 KRS 61.8715