Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington Police Department (CPD) violated the Kentucky Open Records Act in denying the January 23, 2015 "official records request" of Enquirer Media Reporter Henry Molski for "all incident reports/records AND 911 tapes relating to the 1-22-15 incident that took place near/at 1371 Hands Pike in Covington at approximately 8:51 p.m." 1 Mr. Molski submitted his request via e-mail to Ed Butler, Executive Director of Emergency Communications for Kenton County. Mr. Butler promptly advised Mr. Molski that "[d]ue to the ongoing nature of this investigation the recordings [sic] a decision on release of the requested records will have to come from the Covington Police and/or Mr. Sanders [Kenton County Commonwealth's Attorney]." Mr. Molski then forwarded this e-mail thread to CPD Records Custodian, Records and Technology Bureau, Michelle Robinson-Wilson. "After speaking with Chief Spike Jones to get an update on this case," Ms. Robinson-Wilson advised Mr. Molski that his request was denied "at this time by this agency due to the fact that this is an open and ongoing investigation."
On appeal Enquirer Media argued that CPD violated KRS 61.880(1) and 61.880(2)(c) "by not meeting its burden of providing an explanation as to how the exemptions it invoked applied to the incident report and 911 tapes sought. . . . The City's Response gave little, if any, explanation for denying the Request, and failed to cite any exemptions under KRS 61.878." 2 Upon receiving notification of Enquirer Media's appeal from this office, Assistant City Solicitor Bryce C. Rhoades responded on behalf of CPD. Quoting KRS 61.872(2), Mr. Rhoades first noted that Mr. Molski submitted his original request by e-mail, which is not a statutorily recognized method of submission. Mr. Rhoades further advised that Mr. Molski submitted his request to Mr. Butler, Executive Director of Emergency Communications for Kenton County, and responsive 911 recordings would be in the custody and control of Kenton County as the City of Covington does not maintain a separate 911 dispatch. If the City had received a written request, per KRS 61.872(4), Mr. Rhoades noted that "it would have informed Mr. Molski that 911 recordings are in the custody and control of Kenton County, and not the City of Covington."
Although CPD "never received a written open records request," Mr. Rhoades observed, "subsequent to the filing of this appeal I have consulted with [CPD]. First, as previously stated, the 911 tapes that Mr. Molski requested are in the custody and control of Kenton County -- not the City of Covington." Second, CPD is prepared to release 14 pages of responsive documents, including all incident reports and one laboratory report.
In reply, Enquirer Media argued that CPD "waived any alleged obligation to send a written request via regular mail under KRS 61.872(2) because [CPD] also responded via email. " Quoting prior decisions of this office, Enquirer Media correctly observed that a public agency can waive this requirement expressly or by its course of conduct. Given that e-mails "have long been considered a public record under the ORA, whether in print or electronic form," it argued, this agency should "recognize that an email is a proper open records request under KRS 61.872(2). The statute was last amended in 1994 before email communications were the norm." However, in Enquirer Media's view, reference to a request being submitted via facsimile evidences a "clear intention by the legislature" to permit electronic transmission of a request, and the method of transmission was not intended to permit a public agency to subvert the intent of the Act. While Enquirer Media "accepts that [CPD] does not presently have custody over the 911 tapes requested, the mere fact that its Request was sent via email did not alleviate the [agency's] obligation to indicate that it lacked possession of the requested records."
With regard to application of KRS 61.872(2), the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). This office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002) (citation omitted). In decisions which date back to 1998, the Attorney General has determined that KRS 61.872(2) specifies "the method of transmission by which an open records request must be communicated." 98-ORD-167, p. 5; 07-ORD-033; 12-ORD-036. Applying the rule of statutory construction codified at KRS 446.080(4), this office concluded that "until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests," or the requests themselves, the Attorney General is confined to the statutorily recognized methods "according to common and approved usage of the language" employed in the statutes. Id. Contrary to Enquirer Media's position, this office is not at liberty to read into KRS 61.872(2) a method of transmission which has not been legislatively authorized.
However, this office has nevertheless recognized that the requester and the public agency "may enter into an express agreement, or consent by a clear course of conduct 3 to transact their open records business by email. " See 99-ORD-129; 03-ORD-162; 07-ORD-105; 09-ORD-224. While no such agreement existed between Mr. Molski and CPD, the agency waived the requirement of a written request in responding to his request via e-mail without objection. If CPD does not wish to accept requests made by e-mail it "should notify requesters, like Mr. [Molski], that it does not accept emailed requests and direct [them] to KRS 61.872(2) to ensure proper submission of subsequent open records requests." 12-ORD-036, p. 2. The belated attempt by CPD to raise this argument is not persuasive. See 07-ORD-105 (finding belated attempt by agency to defend its delay in responding to requests and providing access to records based on the mode of transmission unpersuasive). Although CPD may adopt such a policy in the future, "it cannot be heard to assert this defense in the present action." 07-ORD-105, p. 8. Given that CPD waived the requirement of a written request in responding to Mr. Molski's request by e-mail without objection, the agency erred in failing to advise him that Kenton County would possess any responsive 911 recordings per KRS 61.872(4) ("If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. ").
Notwithstanding this deficiency or the agency's undisputed failure to initially cite a statutory exception and briefly explain how it applied to records being withheld, as required under KRS 61.880(1), CPD has now agreed to release all responsive incident reports consistent with governing legal authority. See 15-ORD-038 (In re: Enquirer Media/ City of Florence, rendered on March 9, 2015) and the authorities referenced therein. Accordingly, further discussion or analysis of the related substantive issues presented is unnecessary. Pursuant to 40 KAR 1:030 Section 6, "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has long held that if access to public records for which inspection or copying has been sought is denied, but subsequently granted, "the propriety of the initial denial becomes moot." OAG 91-140; see 03-ORD-087; 04-ORD-046; 05-ORD-137; 07-ORD-023; 08-ORD-246; 10-ORD-087. Discussion of any issues regarding documents not initially requested is also unnecessary and this office makes no finding on the merits of arguments raised in relation to such documents.
Either party may appeal this decision may appeal 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 The record on appeal establishes that on January 22, 2015, a shooting occurred in Covington during which one person was killed and one person was gravely wounded. Three suspects were subsequently indicted by a Kenton County grand jury.
2 In relevant part, KRS 61.880(1) provides that a public agency response "denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld ." (Emphasis added.) KRS 61.880(2)(c) likewise provides that "[t]he burden of proof in sustaining the action shall rest with the agency[.]" See 12-ORD-211, pp. 6-8 regarding application of both.
3 This office held that such a "course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email." 98-ORD-167, p. 5.