Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Angel R. Juarez appeals the Boone County Sheriff's Department's 1 response to his December 14, 2014, request for "a copy of all material in [his] file as it relates to case 05-CR-00248, Commonwealth v. Angel R. Juarez" including "all written documents, police reports, interview notes, laboratory reports, detective notes, and all cassette tapes, DVD's, [and] VCR tapes. " The Department responded one month later by agreeing to produce 47 hard copy records upon receipt of $ 4.70 in copying fees and one DVD upon receipt of a $ 1.00 copying fee. The Department subsequently notified Mr. Juarez that the taped interview it intended to transfer to a DVD could not be located, suggesting that he "check with [the] circuit court clerk. " On appeal, Mr. Juarez questions the Department's inability to produce the DVD that it originally agreed to produce and for which he was assessed a $ 1.00 copying fee. Additionally, he objects to the Department's failure to produce the laboratory reports and detective notes that he specifically requested as well as the unexplained redactions to the reports with which he was furnished.
In supplemental correspondence directed to this office after Mr. Juarez initiated his appeal, the Department spokesman explained:
When I received the Juarez open records request I immediately checked with the detective who worked the case, Tracy Watson, to determine into the availability of the file. Our recent investigations are digitally recorded but since this is a 2005 case I had to actually thumb through her paper case file. Additionally, Tracy remembers there being a taped (video cassette tape) interview and since it wasn't with her file she believed it to be stored in our archive room which is located in the mezzanine level above our property room. I mention that because it is in a secure area. To enter it requires being accompanied by the property room manager.
When I responded to Mr. Juarez I indicated there were 47 pages which is the entire file in our possession and one DVD since the video cassette would be copied over to DVD. Once he replied I obtained admittance to the archive room only to discover the tape was not there. Detective Watson told me it was probably used in court which would indicate it was with the court's records.
When I responded to Mr. Juarez I noted that I could not locate the taped interview and suggested he check with the circuit court clerk. I was mistaken when I indicated we had 1 DVD and should have checked the archive room before responding to his request. The fact remains however; Mr. Juarez received our entire case file. I can only apologize for the DVD confusion and steer him in the proper direction, which I did.
Based on this response, we find that the Department did not violate the Open Records Act in failing to produce a recorded interview that could not be located. 2 The Department complied with KRS 61.872(4) 3 by advising Mr. Juarez where a copy of the recording might be located. Upon receipt of notification of Mr. Juarez's appeal, the department provided a plausible explanation for its inability to produce the recording, as required by the court in Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011), "when it is determined that an agency's records do not exist." However, the Department did not, as required by KRS 61.880(1), 4 identify the statutory basis for the redactions of portions of the records released to Mr. Juarez to which he referred in his letter of appeal. Nor did it address its inability to produce detectives' notes and laboratory reports or explain that no such records exist. 12-ORD-162, p. 2 (recognizing that an agency's denial of an open records request based on the apparent nonexistence of the records was "tantamount to a denial and . . . it [was] incumbent on the agency to so state in clear and direct terms"). Upon completion of these tasks, the Department's duty under the Open Records Act will be fully discharged.
The Sheriff's Department's inability to conclusively account for the disappearance of its only copy does, however, raise records management issues. KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. " The statute further recognizes that "to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes." Retention and management of public records is governed by schedules developed by the Archives and Records Commission under authority of KRS 171.420. These schedules are promulgated into regulation at 725 KAR 1:061. The records series into which the missing recording most likely falls is L4662, Felony Investigation File, which has an eighty year retention. 5 That retention period has not expired, but the Sheriff's Department cannot conclusively account for its disappearance. This is indicative of a failure in its records management program.
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.
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