Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Ludlow Police Department ("LPD") violated the Open Records Act in failing to state the proper custodian of the records in its written response, and in not providing documents and videotapes which were not in its possession. We find that LPD procedurally violated the Open Records Act in failing to state the proper custodian of the records in its written response, but subsequently cured that deficiency by identifying the proper custodian. LPD did not violate the Open Records Act in not providing documents and videotapes which were not in its possession.
The Cincinnati Enquirer ("the Enquirer") submitted an open records request to the LPD on Dec. 23, 2015. The Enquirer requested "access to and copies of all documents related to the officer-involved shooting in Ludlow at Family Dollar on Dec. 22, 2015. This includes, but is not limited to, video footage from police officers body cameras and any security camera footage of the incident, as well as the incident report." LPD responded on Dec. 23, 2015, providing "all information the City of Ludlow possesses regarding officer Samuel Hodge." LPD further stated that Officer Hodge "has been employed with the City of Ludlow since March 18, 2015. There being no incidents of misconduct, no reprimands . . . and no evaluation . . . , there is limited information to provide. . . . All of Officer Hodge's personal and private information has been redacted pursuant to K.R.S. 61.878(1)(a)."
The Enquirer initiated this appeal on Jan. 27, 2016, stating:
Here, the City only provided a letter about Officer Hodge (the officer involved in the shooting) in response to the Enquirer's Request. The City failed to provide any records responsive to the remainder of the Request, specifically, all documents related to the shooting, including but not limited to the incident report, body camera video footage, and security footage. The City's Response fails to address such records at all, and was therefore defective under KRS 61.880(1). . . .
In addition, the City's Response was substantively deficient because it provided a single redacted page about Officer Hodge . . . . Although the City invoked KRS 61.878(1)(a) to explain its redaction of personal and private information from the single document it produced, it failed to produce the remainder of the personnel file it had for Officer Hodge and no exemption was cited.
LPD responded to the Enquirer's appeal on Feb. 8, 2016, stating:
As previously stated to Mr. Scott Wartman of the Cincinnati Enquirer and and [sic] now to counsel of record, the Kentucky State Police are handling this investigation since the incident involves the shooting of a Ludlow Police Officer. Therefore, all information being requested is in the care, custody, and control of the Kentucky State Police and the Hon. Robert Sanders, the Kenton County Commonwealth Attorney. This was made clear in the December 23, 2015 response. Please see this response attached hereto as Exhibit "A." . . .
The Cincinnati Enquirer then goes on to state in its appeal letter that the City of Ludlow did not comply with turning over Officer Hodge's personnel file. As previously explained, Officer Hodge was a recent hire and the only documents in his personnel file were in his hiring packet that has been turned over to the Cincinnati Enquirer. . . . The City of Ludlow is not claiming an exemption to any other additional documents. Everything the City has, is in the hands of the Cincinnati Enquirer.
The response attached by LPD labeled "Exhibit A" was dated Dec. 23, 2015 and addressed to WLWT News, not to the Enquirer. It stated that "all items of this nature have been turned over to the Kentucky State Police as that agency is conducting the investigation of the incident. . . . Regarding your request for any videos, etc. . . . all items of this nature have been turned over to the Kentucky State Police."
KRS 61.872(4) provides that "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." LPD may have informed the Enquirer that it did not have possession of the requested records and directed the Enquirer to the appropriate custodian, but that information is not included in its written response to the Enquirer's request, apparently due to confusion with another open records request by WLWT News. KRS 61.880(1) requires an agency to "notify in writing the person making the request." Accordingly, LPD's initial written response was procedurally deficient, in that it did not notify the Enquirer of the appropriate custodian of the records if known. However, LPD subsequently cured that deficiency in its response to the Enquirer's appeal.
LPD states in its response to the Enquirer's appeal that "all information being requested is in the care, custody, and control of the Kentucky State Police and the Hon. Robert Sanders, the Kenton County Commonwealth Attorney." "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 14-ORD-100. "The agency discharges its duty under the Open Records Act by affirmatively so stating." 14-ORD-147. LPD has stated that it has already turned over all responsive documents that it has, and the remainder of the documents sought are not in its possession. While it may not be best records management practices for an originating agency to turn over all copies of its records to another public agency as part of an investigation, we do not find a violation of the Open Records Act under these circumstances. Accordingly, in not providing documents related to an officer-involved shooting, including video footage from police body cameras and security camera footage, which were not in its possession, LPD did not violate the Open Records Act.
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 proceedings.