Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Shelby County Animal Shelter ("SCAS") subverted the intent of the Open Records Act short of a denial of inspection, within the meaning of KRS 61.880(4), in its handling of an open records request made by attorney Kathryn Callahan on February 6, 2015. For the reasons that follow, we find the intent of the Act was subverted and refer this matter to the Department for Libraries and Archives due to improper records management.
In her February 6 request, Ms. Callahan sought "inspection and copying of all images/graphic representations and audio on the security camera system for the Shelby County Animal Shelter ? at the earliest mutually convenient time and date." Additionally, she requested copies of numerous other records, which are not at issue in this appeal. On February 12, 2015, Shelby County Judge/Executive Rob Rothenburger responded that it would take six to eight weeks to locate and redact those records, and added:
In respect of your request for Animal Shelter Video inspection, please contact Animal Control Director Leon Federle direct to arrange a mutual schedule for viewing and inspection of said video/ security camera data.
After obtaining a hard drive with sufficient memory to store the data, a representative of Ms. Callahan's client, Vicki Moore, contacted Mr. Federle on or about May 17, 2015, to arrange an appointment to download the camera footage. Appointments on May 21 and May 28 were made, but both were cancelled by Mr. Federle on the scheduled days.
By requiring and then cancelling appointments based on the availability of Mr. Federle, the Animal Shelter subverted the intent of KRS 61.872(3)(a), which provides that a person may inspect public records during the agency's regular office hours. Our decisions have consistently found that "any attempt by a public agency to limit the period of time within which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 93-ORD-48 (quoting OAG 80-641); see also 99-ORD-44; 03-ORD-083. In 93-ORD-48, we specifically found that if a county attorney "requires as a precondition to the right of inspection the presence of an employee of his office, and that employee is not available to oversee the review of documents during all regular office hours, he has in effect restricted access to public records in contravention of KRS 61.872(3)(a)." Accordingly, by requiring an appointment with Mr. Federle and successively cancelling two such appointments due to his schedule, the Animal Shelter subverted the intent of the Act insofar as it contemplates access to public records during an agency's regular business hours.
When Ms. Moore and a video technician were finally allowed access to the camera records on June 5, 2015, the technician discovered that all stored footage had been deleted from the digital recorder on May 31, 2015. Ms. Callahan's law partner, Lisa Koch Bryant, initiated an appeal to this office on July 15, 2015, arguing that "the intentional deletion of the DVR footage after the date of the Open Records Request prevents the client from inspecting the images and constitutes a denial under the Open Records Act. "
Shelby County Attorney Hart T. Megibben, in a July 27, 2015, response to the appeal, states as follows:
In May of 2015, Shelby County communicated with Mid America Security Systems [the administrator of the Animal Shelter's camera system] regarding the recording time of that system and requested that the time be adjusted to a five day record time. [Mr.] Federle specifically indicated to the Mid America Security Systems technician that the prior footage needed to be saved. However, contrary to that request, that footage was inadvertently erased by Mid America Security Systems.
Mr. Megibben provides a June 18, 2015, letter from Eddie Pile of Mid America Security Systems, which likewise affirms that "unbeknown to the technician or Leon [Federle] the previous recordings were erased when the recorder was adjusted to a five day record time. " 1
In reply, Ms. Bryant provides an affidavit from Kurt Pendleton, the technician who was present with Ms. Moore on June 5, 2015, attesting that the recording system's log showed an administrator deleting the hard drive at 1:53 a.m. on Sunday morning, May 31, 2015. Mr. Pendleton states that "[t]here are too many steps that must be taken for [the hard drive deletion] to be purely accidental." Regardless of whether the deletion was intentional, Ms. Bryant argues, "the County has nevertheless failed to fulfill its obligations under the Open Records Act to preserve those security camera images."
We do not find that the failure to preserve the camera record violates the Open Records Act itself. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. In general, it is not our duty to investigate in order to locate documents which the public agency states that it does not possess. In this case, however, the deletion of the hard drive while a request was pending does raise a significant records management issue.
We agree with Ms. Bryant that it is not strictly relevant whether the deletion of the camera record was intentional. "It is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed." 06-ORD-089 (citing 03-ORD-005; 04-ORD-108). As in 06-ORD-089, "we urge the agency to implement measures aimed at insuring accountability and access through proper records management."
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records. . . ." KRS 61.8715. The loss or destruction of public records raises issues which may be appropriate for review under Chapter 171 of the Kentucky Revised Statutes. An agency's "inefficiency in its own internal record keeping system" should not be allowed "to thwart an otherwise proper open records request."
Com. v. Chestnut, 250 S.W.3d 655, 666 (Ky. 2008). Accordingly, we refer this matter to the Department for Libraries and Archives for additional inquiry as that agency deems warranted.
In conclusion, we find that Mr. Federle's repeated cancellations subverted the intent of the Open Records Act by imposing unreasonable restrictions on inspection. The destruction of the video record represents a records management problem, which we refer to the Department for Libraries and Archives.
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.
Footnotes
Footnotes
1 It is unclear why the Animal Shelter would limit the system to "a five day record time," as the standard retention period for "Surveillance Video/Audio Recordings" is 30 days. Local Governments General Records Retention Schedule, Series L5364.