Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Leonel Martinez initiated this appeal by letter dated March 3, 2016, challenging the failure of the Owensboro Police Department ("OPD") to issue a timely written response to his January 26, 2016, request for "a copy of the MPD video that was given to the police on March 23, 2006 at 12:30 p.m. Case No. 06CR00601." Upon receiving notification of Mr. Martinez's appeal from this office, Assistant City Attorney Stephen D. Lynn responded on behalf of OPD, advising that he received the request on March 8, 2016, from OPD, 1 "who were unable to locate the video that he requested therein." Mr. Lynn further indicated that after discussing the request with OPD he sent a letter to Mr. Martinez on March 9, 2016, "requesting additional information to better identify the requested video. " In that letter, a copy of which Mr. Lynn attached, he advised Mr. Martinez that a review of the video inventory related to his 2006 Daviess Circuit Court case "and it does not appear that it has a video identified as an 'MPD Video. '" 2
By letter dated March 22, 2016, Mr. Martinez provided the requested information to assist OPD in locating the video recording in dispute, namely excerpts from his defense counsel's appellate brief and excerpts from the transcript of the 2006 Circuit Court proceedings. Those documents confirmed, at a minimum, that a surveillance video existed, if not whether OPD exercised its discretion to obtain a copy of the video rather than photographs derived from it. For example, defense counsel moved to have the Commonwealth "be required to produce, pursuant to KRE 1003, the original video footage. " The Commonwealth stated "that in discovery defense counsel had the original small photos. . .." Sergeant Tim Clothier also testified that during his interview with police, "Mr. Martinez was told that MPD footage showed him picking up the men in his white Crown Vic without the Latino Taxi placards on it. Mr. Martinez accused police of doctoring photos, and the interview ceased." Defense counsel is quoted in the transcript as noting that an OPD officer "said when looking at [the photographs] at [MPD] . . ." and the Commonwealth is quoted as indicating that misleading a suspect during an interview is a tactic used to convince a suspect you have certain evidence that you do not actually possess, in this case "photos of Crown Vic at MPD w/out placards [.]"
Based upon the documentation that Mr. Martinez provided, Mr. Lynn ultimately advised that OPD had "narrowed down to a CD of still photographs, that appear to have been taken from camera # 6 of the MPD company . . . here in Owensboro." Following additional inquiries from this office, Mr. Lynn further explained that OPD Records Unit Manager Jim Greenland had spoken with Officer Steve Smith, the lead investigator, and inquired specifically as to whether any "MPD videos" were obtained in relation to Mr. Martinez's case. Officer Smith advised that "he believed that there were only 'still photos' taken from MPD surveillance cameras" and that he did not recall any MPD videos being presented as evidence during Mr. Martinez's trial. Mr. Lynn advised that OPD apparently "never obtained a copy of MPD's surveillance video, just made still photos of it."
By letter dated April 13, 2016, Mr. Lynn formally supplemented the agency's response, initially acknowledging that a timely written response was not issued to Mr. Martinez's request in accordance with KRS 61.880(1). In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." This office sees "nothing wrong with the [OPD's apparent] policy of processing open records requests through its legal department. . . . However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 12-ORD-128. Because the agency has acknowledged failing to comply with KRS 61.880(1), this office will not belabor the point any further. See 14-ORD-233 for the relevant analysis.
Mr. Lynn further explained that his letter asking for additional information to assist OPD in searching for the requested video apparently crossed in the U.S. mail with Mr. Martinez's letter of appeal. Mr. Martinez subsequently provided this office with portions of his trial transcript, as noted, and sent additional correspondence to Mr. Lynn "on or about March 14 regarding the MPD video. " Mr. Lynn explained that OPD staff initially obtained "an invoice or list of the items within the file, none of which referred to an 'MPD video. '" Upon receipt of Mr. Martinez's appeal, Mr. Lynn "instituted a complete review of the investigative file and search to determine whether OPD possessed the video, and if not, to whom Mr. Martinez should be directed to obtain a copy in accordance with KRS 61.872(4)." 3 Having reviewed the file, but failed to locate the video, Mr. Greenland contacted Officer Smith, as described above. Mr. Lynn observed that "the portions that Mr. Martinez provided of his appellate brief and trial transcript appear to indicate that only still photographs, and not the actual video, " were introduced into evidence at his trial. Although defense counsel made a motion that the Commonwealth be required to produce the actual video "and sought a brief continuance in the case in order to further question witnesses regarding the video, " the Court denied both motions. In sum, OPD does not possess the MPD surveillance video from which the still photographs of Mr. Martinez's taxicab were taken. 4 Accordingly, OPD advised Mr. Martinez to direct his request to MPD and provided the mailing address per KRS 61.872(4). 5 OPD also provided Mr. Martinez with two CDs found in the file which included the still photographs derived from the MPD video. Notwithstanding the initial deficiencies in the agency's response, based upon the following this office affirms the ultimate disposition of Mr. Martinez's request by OPD.
The right of inspection attaches only if the record in dispute is "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," but discharges its duty under the Act in affirmatively indicating that no such record exists, or advising that it lacks possession and explaining why, as OPD ultimately did here. 13-ORD-052, p. 3; 99-ORD-98; 04-ORD-205. Under the circumstances presented, 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. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of KRS Chapter 171, pertaining to management of public records, the Act only regulates public access to records that currently exist and that are in the possession or custody of the public agency to which the request is directed. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the record(s) being sought following the enactment of KRS 61.8715 in 1994. A public agency must offer some explanation for the nonexistence of the record or its lack of possession if appropriate. See KRS 61.880(2)(c); 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").
When, as in this case, a public agency denies that a certain record exists in the possession or custody of the agency, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9; 11-ORD-137. OPD cannot produce that which it does not have nor is the OPD required to "prove a negative" in order to refute a claim that a certain record exists in the possession of the agency. See Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"). Mr. Martinez provided sufficient evidence from which the requested video could be presumed to exist under 11-ORD-074; however, OPD does not dispute that such a video existed or currently exists, only that a copy of the video was ever in the possession of the agency. If OPD actually possessed, maintained, used or had custody or control of the video, regardless of whether the record could also be accessed from another source, it would have a statutory obligation to provide Mr. Martinez with a copy. See 06-ORD-218; 15-ORD-188; compare 98-ORD-90. However, the Attorney General has long recognized that a public agency "does not violate the Open Records Act when it declines to retrieve copies of records which could have been obtained, but were not obtained," to satisfy a request. 99-ORD-122, pp. 5-6 (ordering a public agency to exercise its right of access would effectively be compelling the agency to create a record); 12-ORD-098 (neither the courts nor this office have construed KRS 61.870(5) or (6), defining "custodian" and "official custodian, " to extend the reach of the Act to records that are not currently under the control of the public agency) ; compare 09-ORD-107. The Act "does not impose an obligation on agencies to create, procure, or retrieve a record to accommodate a request." 99-ORD-202, p. 5. 6
Although Mr. Martinez provided "affirmative evidence, beyond mere assertions," that the requested video existed, the fact remains that "we do not have a sufficient basis on which to dispute the [agency's] representation that no such record [was] obtained by [OPD]." 09-ORD-214, pp. 3-4; 12-ORD-042. "Our analysis turns not on whether the fruits of the agency's search met the requester's expectations, but whether it conducted an adequate search." 06-ORD-042, p. 5. Because OPD ultimately made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no video matching the description provided was located and ultimately explaining the reason why - that OPD did not deem it necessary to obtain the video for use as evidence during Mr. Martinez's trial. 05-ORD-109, p. 3; 01-ORD-38; 12-ORD-030. The agency's final disposition of Mr. Martinez's request is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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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