Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act in its disposition of two open records requests from attorneys Sam Aguiar and David Cowley concerning "an incident which occurred at 1733 Greg Ave, Louisville Kentucky on April 14, continuting [ sic ] into April, 2017," involving the execution of a search warrant against Demetrius Allison. For the reasons that follow, we find LMPD partially in violation of the Act.
Mr. Aguiar's request, dated June 14, 2017, listed the following items relating to the incident:
a. All dispatch audio and radio communications for all officers involved . . . for an hour before dispatch to an hour after the conclusion of the investigation;
b. All photographs taken[;]
c. All officer notes;
d. Any interviews conducted by LMPD (including but not limited to those of witnesses, involved parties and other officers);
e. All computer aided dispatch (CAD) notes;
f. All body camera and dash camera video and audio.
Mr. Cowley's request, dated July 5, 2017, repeated the above and added the following:
g. The warrant that was being executed the day of the subject incident.
h. The entire Professional Standards Unit (PSU) investigation file and/or report.
On June 15, 2017, LMPD responded to Mr. Aguiar's request by e-mail as follows:
[P]lease be advised the requested records are part of a pending criminal case set for a Hearing on June 28, 2017. Accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which state that records of law enforcement agencies are exempt from disclosure [until] the investigation and administrative adjudication is complete. Pre-mature release of any investigative records, including photos, would be detrimental to the criminal prosecution of the matter. The record will be subject to public disclosure following the close of the criminal prosecution, unless excepted under other other applicable exemptions pursuant to KRS 61.878(1). Accordingly, you may re-submit your request at a later date.
(Emphasis in original.) The response to Mr. Cowley's request, on July 7, 2017, recited the identical language.
On July 19, 2017, in response to an inquiry from Mr. Aguiar, LMPD "agreed the criminal case is now resolved" and requested until August 18, 2017, "to locate and prepare the records for release," a date to which Mr. Aguiar agreed. On August 18, 2017, LMPD responded by e-mail to an inquiry from Mr. Cowley, as follows:
Below please find the 911 records. Redactions appear in protection of personal privacy pursuant to KRS 61.878(1)(a). Attached please find a copy of the search warrant, that was obtainable from the Circuit Court Clerk back in April, 2017. A DVD of officer body cam video was mailed to your attention this date. Please be advised a search was conducted and LMPD is not able to locate any additional, releasable records at this time, due to the ongoing PSU investigation .
(Emphasis added.)
On appeal, LMPD acknowledges that the last sentence quoted above "was ambiguous and did not fulfill LMPD's open records obligation." The sentence was "intended to advise Mr. Cowley that records meeting his requested items b, c, and d [photographs, notes, and interviews] did not exist and the records responsive to item h were exempt at this time due to the pending PSU investigation." In light of LMPD's admission, we find a procedural violation of the Open Records Act insofar as a public agency must affirmatively assert the nonexistence of responsive records, 02-ORD-144, and KRS 61.880(1) requires that any response denying inspection of records "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. "
On August 23, 2017, in response to a further inquiry from Mr. Aguiar, Sgt. Corey Cadwell stated: "It is my understanding this was a Narcotics and SWAT initiated incident. The officers and detectives did not have/use body cameras. The provided short body camera was from the only beat officer that responded afterwards." The next day, after further questions, Sgt. Cadwell responded:
I have been in contact with the PSU investigator and there is no other video available. They may have had/used cameras before transferring to Narcotics; I found no video from January 1 through the incident date. The PSU investigator did say he had some photos turned over to him on Friday that we did not know existed; we will get those to you. There are also no known officer notes.
LMPD's records custodian confirmed on that same date that "all 911 records, video and the search warrant were provided on August 18, 2017," and that after an additional search "LMPD was not able to locate any additional wearable or mobile video or officer notes." The photographs, which the officers had failed to upload to LMPD's Digital Images Management System (in an admitted violation of LMPD protocol), were sent to Mr. Aguiar on September 6, 2017, after receipt of payment.
In his letter of appeal, Mr. Aguiar raises the following four complaints:
1. No officer video or audio has been produced in relation to the dispatch of the incident in question or the incident [itself].
2. The dispatch audio is not complete[.]
3. The PSU file was not produced[.]
4. The unreleased files are not identified[.]
Mr. Aguiar cites LMPD's Standard Operating Procedures for the proposition that body-worn cameras are to be operated during all law enforcement activities. Therefore, he asserts that video from all involved officers should presumptively exist. He also argues that KRS 61.878(1)(h) is not a proper basis for continuing to withhold the PSU investigation file.
Professional Standards Unit investigation
On October 2, 2017, Assistant Jefferson County Attorney Annale E. Renneker responded on behalf of LMPD. She argues the applicability of KRS 61.878(1)(i) and (j) to the PSU investigative file during the pendency of the investigation. Although LMPD failed to raise this exception prior to this appeal, we find that the argument has merit.
KRS 61.878(1)(i) and (j) permit the nondisclosure of, respectively, "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In 10-ORD-065 (copy attached), we found that records which are part of an ongoing investigation are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter. We hereby adopt the analysis in 10-ORD-065 as the basis for our decision that LMPD did not violate the Open Records Act by withholding such records during the pendency of its PSU investigation. 1
Additional body camera recordings
Mr. Aguiar's primary argument is that LMPD is concealing additional undisclosed body camera video and audio recordings. LMPD admits, and we agree, that the cited Standard Operating Procedure gives rise to "some level of presumption" that such records were created by the officers involved in executing the search warrant. As LMPD explains in more detail on appeal, however, there are facts which rebut this presumption. Although regular "beat officers" are equipped with body cameras and use them pursuant to the SOP, "Narcotics and SWAT officers and detectives either do not have or do not use body cameras" :
Not all of the Narcotics detectives have body cameras assigned to them; the ones that do received them before their transfer to the Narcotics Unit. Therefore, the internal policy adopted by Narcotics is that none of them wear and use a body camera until they all have one and a wearable video system policy specifically for the Narcotics Unit is developed and put in place. The incident involving Mr. Aguiar's client was initiated by Narcotics and SWAT, and therefore, no body camera footage [from those officers] exists.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In view of the information provided, we find that LMPD has satisfactorily explained the nonexistence of any additional footage.
911 recordings
The issue remaining is the redactions made to the 911 recordings. LMPD's response to the appeal does not address this issue; thus we have only the statement from August 18, 2017, that "[r]edactions appear in protection of personal privacy pursuant to KRS 61.878(1)(a)." This response does not articulate any privacy interest, nor does it explain specifically what was redacted from the recordings for privacy reasons. The vagueness of this statement makes it impossible to evaluate LMPD's argument under KRS 61.878(1)(a), and constitutes a further violation of the Open Records Act, inasmuch as KRS 61.880(1) requires "a brief explanation of how the exception applies to the record withheld. "
A public agency has the burden of proof in sustaining its action. KRS 61.880(2)(c). As to the unspecified redactions made to the 911 recordings, we must conclude that this burden has not been met. 17-ORD-120; 17-ORD-101. Accordingly, we find that LMPD's disposition of the request was, in part, both procedurally and substantively in violation of the 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 We are unaware of any authority in support of Mr. Aguiar's argument that LMPD should identify the specific items contained in the PSU investigative file prior to final agency action.