Request By:
Kate Howard
Annale E. Renneker, Esq.
Alicia Smiley
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Louisville Metro Police Department (LMPD) violated the Open Records Act in its disposition of a request for copies of body camera video recordings. For the reasons set forth below, we find that LMPD did not comply with KRS 61.872(5) in its initial response to the request but, on appeal, rectified those errors.
By request submitted online to LMPD on July 24, 2017, Kate Howard, Kentucky Center for Investigative Reporting, asked for "any/all WVS footage from any/all officers involved in the following events: 20170706120820ED, 7/6/17 at 12:08 PM Metrosafe event number: P17278852" and "20170608091701ED, 6/18/17 at 9:17 AM, Metrosafe event number: P17233541[.]" 1 On Tuesday, July 25, 2017, Alicia Smiley responded to Ms. Howard via email on behalf of LMPD. Ms. Smiley explained that "Event Number P17278852 was cancelled and no LMPD officer was dispatched for this event. Therefore no video exists in relation to this incident." Regarding the other request for video, Ms. Smiley stated:
Your request for video for Event Number P17233551 has been forwarded to our Body Cam Unit for review. Three officers responded to that event and the Unit will need to determine if any of the officers have video of the incident as well as retrieve, review and redact said video. Video, if it exists, should be available in approximately 30 business days, either on or before Thursday, September 7, 2017.
Ms. Smiley also explained that a prior request for video by Ms. Howard was expedited due to confusion as to whether video existed for that incident but that her most recent request was now "in queue and being processed in the order in which it was received."
On August 8, 2017, Ms. Howard initiated an email exchange with Ms. Smiley, questioning whether the anticipated schedule for producing the requested video recording was acceptable under the Open Records Act. Ms. Smiley responded:
I've been advised that the three member body cam unit receives a high volume of video requests daily, which may range from as little as one minute of video to several hours depending upon each request. Each individual video must be reviewed in its entirety and redacted as necessary. Once completed the redacted video is reviewed by the PIO office (if the request originated with our unit) to ensure that the video meets the guidelines of the request and that no further redaction is necessary.
After further questioning from Ms. Howard, Ms. Smiley provided additional explanation, on August 9, for the delay in providing the requested video recording:
"In order to respond to a request for video, we must conduct a search by officer and date. If video is located, we must then contact the officer to determine whether an investigation related to the incident is open. We then must download each video, one at a time, and then watch and manually redact any exempted information. We do this to protect the privacy of our citizens. Unfortunately, only one item/image/sound may be redacted at a time; if there are multiple exempt items, they must be redacted individually. There is no automatic process to redact exempt items. As a result of this process, the request[ed] video is currently unavailable and will be available on or before close of business on September 7, 2017.
Ms. Howard appealed LMPD's response to this office: "This case in our view, is a violation of the public records act. None of the people are adequately served by a system that gives a blanket 30-business day wait when the records act contemplates production in only three days."
Ms. Annale E. Renneker, Assistant Jefferson County Attorney, responded to this appeal on behalf of LMPD. In addition to the explanation already provided to Ms. Howard by Ms. Smiley, Ms. Renneker further advised:
The LMPD Open Records Unit is comprised of three video techs and three paralegals overseen by a sergeant. When an open records request (hereafter "ORR") comes in and is requesting records other than videos, a paralegal will handle the request. The paralegal will forward any video portion of the request to a video tech. If the ORR is just requesting video, as is the case with Ms. Howard's, then the request is assigned to a video tech. Assignments are made to be as fair as possible among the three video techs, but it can be difficult to determine how lengthy and/or difficult one may be upon receipt of the request. The video techs in the Open Records Unit also fulfill any requests for video from prosecutors with the Commonwealth and County Attorney's office and other law enforcement officers. As of August 15, 2017, the video techs have received 5,168 requests for videos for 2017. One request is assigned a number, but may have numerous videos that actually correspond with the request.
Ms. Renneker acknowledged that the initial responses to Ms. Howard did not comply with KRS 61.872(5) in not "identifying whether the records were in active use, in storage, or otherwise unavailable and providing a detailed explanation justifying its delay in producing the records. . ." LMPD argued that, while the videos are being reviewed for redactions, they are "otherwise unavailable" pursuant to KRS 61.872(5), and that some redactions are mandatory. "A reasonable delay in producing the records in order to completely and adequately redact exempted portions is a proper justification."
Ms. Renneker also referenced past decisions of this office that have "opined that public agencies must hire additional personnel to timely provide the public with access to public records" and that "LMPD has done that. LMPD has created a unit within their department to respond to ORRs; this unit created spots in an administrative setting that required hiring of civilians." The response asserted that "LMPD is appropriately balancing its resources to comply with its obligations under KORA and its arguably more important obligation to preserve and defend the citizens of, and visitors to, Louisville Metro."
Analysis : KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
This office has often held that any extension of the statutory time frame of three business days "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. " 08-ORD-021, p. 6 (original emphasis); see 06-ORD-126. LMPD's first response to Ms. Howard's request did state the "earliest date certain" on which the record would be released, but did not invoke KRS 61.872(5), did not specifically state that the records were "not otherwise available[,]" and did not provide a detailed explanation for the delay. These errors constitute procedural violations of the Open Records Act which LMPD acknowledged in its response to the appeal. Ms. Smiley's responses to Ms. Howard on August 8 and August 9, and Ms. Renneker's further explanations on appeal belatedly corrected these errors. LMPD advised, on appeal, that the video was made available to Ms. Howard on August 15, sixteen (16) business days after receipt of the open records request.
More to the point of Ms. Howard's appeal is the question of whether the anticipated 30-day delay in providing the records is a violation of the Act. In OAG 92-117, we noted that "The Open Records Act does not prescribe a reasonable time within which a requester must be afforded access to public records [.]" Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. We have also noted "that a determination of what is a 'reasonable time' for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records." 05-ORD-099. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
Under these circumstances, where LMPD has assigned additional personnel to view and make mandatory redactions to video recordings before they are released in response to open records requests, provided the earliest date certain that the record would be available, made the video available as of August 15, and, on appeal, provided a reasonable explanation for the delay in making those records available, we cannot find that LMPD substantively violated the Act. 2
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 must 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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