Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Hillview ("City") violated the Open Records Act in its disposition of Jennifer Smith's open records requests for personnel records, body camera video, service and maintenance records, and several types of internal investigations For the reasons stated below, we find that the City committed a substantive violation of the Act, as well as procedural violations in its responses to the requests.
In her requests, Ms. Smith ("Appellant") asked for the following records by fax on the dates indicated:
1. April 2, 2018 -- All body camera video from incidents at my house (above address) on 3/24/18 and 3/25/18. On 3/24/18 -- Officer Elliott Clark. On 3/25/18 -- Officer Elliott Clark, Officer Jesse King and Lieutenant Stephen Hill.
2. April 3, 2018 -- Personnel file, all disciplinary action, complaints and disposition of any use of force reports on Stephen Hill for entire length of employment.
3. April 3, 2018 - Service logs and/or maintenance records on body cameras for department -- January 1, 2017 to April 3, 2018.
4. April 3, 2018 - Any internal audits, internal affairs investigations, professional standards investigations, public integrity investigations from January 1, 2013 to April 3, 2018.
Appellant filed an appeal on April 20, 2018. In the appeal, she stated that the Hillview Police Department did contact her by telephone on April 5, 2018, and told her that she would have the records by April 9, 2018. Appellant did not receive the expected response by April 9, and on April 11 contacted the City. The City told that her "they were working on them," but did not provide a date for when it would produce the records. Appellant stated that the City did release a personnel file, but she believes she did not receive the entire personnel file.
Tammy Baker, City Attorney, responded to the appeal on behalf of the City, by letter dated April 30. Ms. Baker stated that Appellant had been provided the records responsive to her request for the "personnel file, all disciplinary action, complaints and disposition of any use of force reports on Stephen Hill for entire length of employment." As to the request for "service logs and/or maintenance records on body cameras for department -- January 1, 2017, to April 3, 2018[,]" Ms. Baker stated that "there are no such records in existence and as such, same cannot be produced." Regarding the request for body camera video, Ms. Baker's letter explained that this request was "missed prior to the appeal being filed. The City has made the copies of the requested videos and had provided same to Ms. Smith on April 30, 2018." As for Appellant's request for "[a]ny internal audits, internal affairs investigations, professional standards investigations, public integrity investigations from January 1, 2013 to April 3, 2018[,]" Ms. Baker stated that "[d]ue to the broad nature of this request, the City asked Ms. Smith to be more specific as to her request." She explained that the City asked Appellant to narrow her timeframe or provide names of specific officers or employees about which she was inquiring. "The request as stated would yield quite a voluminous response and would place an unreasonable burden on the City of Hillview in providing same. The City would have to go through more than five years' worth of these documents and review same for potential exemption under the Open Records Act. " Ms. Baker attached a copy of a letter, dated April 23, 2018, in which the City responded to Appellant's request as explained above.
In correspondence to this Office, dated April 30, Appellant explained that she had received the April 23 letter from the City. The relevant portions of Appellant's April 30 letter states that she does not believe that she received the complete personnel file of Stephen Hill, and that she does not wish to alter her request for internal audits, and that she has "asked for exactly what [she is] looking for."
Analysis .
Untimely Response . We first note that the City failed to respond in a timely manner to the open records requests. KRS 61.880(1) 1 establishes specific legal requirements applicable to all public agencies that receive an open records request. It requires a response within three "business days" as to whether the public agency will comply with the request. The untimely response, approximately twenty (20) after the requests were made, exceeded the time in which the City should have responded to Appellant, and constitutes a procedural violation of the Act. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Dep't. of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three-day response time codified at KRS 61.880(1). See 05-ORD-134, pp. 3-5.
Lack of Detailed Explanation for Delay . The City's response was not only untimely, but also failed to comply with the Act's requirement at KRS 61.872(5) 2 to provide a detailed explanation for the delay in producing the records, and the earliest date on which the records would be available. "In the absence of a legitimate detailed explanation of the cause for delaying access," the Attorney General finds that Appellant "did not receive 'timely access' to the records eventually provided." 16-ORD-206, p. 4; 13-ORD-052, pp. 6-7; 15-ORD-141.
Request for Body Camera Videos . In reference to Appellant's request for body camera video, those records were eventually provided, and the City apologized for "missing" this request initially. Pursuant to 40 KAR 1:030 Section 6, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See also OAG 91-140 (holding, "If access to the public records for which inspection or copying is sought is initially denied and then subsequently granted, the issue of the propriety of the initial denial becomes moot" ). As the City has provided the body camera videos, we conclude that this request is properly determined to be moot and we shall not further address that request in this decision.
Request for Maintenance/Service Logs . In regards to the request for "service logs and/or maintenance records on body cameras for department -- January 1, 2017, to April 3, 2018[,]" Ms. Baker stated that "there are no such records in existence and as such, same cannot be produced." 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 the absence of legal authority requiring the creation of the records, or facts indicating the records were created, we see no need to require further explanation of the requested records' nonexistence. See 11-ORD-091.
Personnel and Related Records . Although the City asserts that it has provided all records responsive to the request for the personnel file and disciplinary records of Stephen Hill, Appellant has expressed doubt that it is "the complete file" and that she is of the "understanding that the Police Department holds some of those records, and [Appellant] has not received those."
With respect to factual disputes of this nature between a requester and a public agency, this Office has consistently recognized that it cannot, with the information and records provided, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this Office under open records provisions. 03-ORD-61, p. 2 (citing OAG 89-81, p. 3). Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
Unreasonable Burden . In response to the request for "any internal audits, internal affairs investigations, professional standards investigations, public integrity investigations from January 1, 2013 to April 3, 2018[,]" the City stated that the request "would yield quite a few voluminous response[s] and would place an unreasonable burden on the City of Hillview in providing same. The City would have to go through more than five years' worth of these documents and review same for potential exemption under the Open Records Act. "
KRS 61.872(6) authorizes public agencies to deny open records requests if the request "places an unreasonable burden in producing public records ? the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence ? ." Denial of the right of inspection under this provision must be supported by clear and convincing evidence, and the public agency that attempts to do so "faces a high proof threshold." Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008). "[T]he obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Id. at 665. Moreover, the fact that the responsive records "are voluminous does not mean that it would necessarily be unreasonable [for an agency] to comply with an otherwise valid open records request." Id. at 666. The City presents no evidence, clear and convincing, or otherwise, that reviewing five years of investigation reports, and redacting those records as necessary, would be unreasonably burdensome. "A bare allegation that a request is unreasonably burdensome or intended to disrupt essential functions does not satisfy the requirements of the statute." 10-ORD-203, p. 3 (citing 06-ORD-177). The City's denial, on the basis that the request is unreasonably burdensome, fails as it provided no evidence or substantive argument that complying with the request was unreasonably burdensome. Having failed to meet its statutorily assigned burden 3 of proving by clear and convincing evidence that production of the investigative records imposed an unreasonable burden, we find that the City violated the Open Records Act in denying Appellant's request and must provide the requested records.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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