Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Henderson (City) violated the Kentucky Open Records Act in denying Alton Franklin's (Appellant) request for records. The record requested by Appellant was not "prepared, owned, used, in the possession of or retained by" the City, as defined by KRS 61.870(2). Therefore, the City did not violate the Act when it denied a copy of the requested record.
On April 17, 2018, Appellant submitted six (6) open records requests to the City. However, only one of those requests is at issue in this appeal. The subject of this appeal is an alleged recording of a parking lot incident involving Appellant and City employees. The recording of the incident was made on a cell phone in the possession of a City police officer. Appellant's request provided a very detailed description of the record, stating as follows:
ALL Video/ Audio taken by an Unknown Subject, in official course of his duties WHILE driving an Officially-Tagged, Black Vehicle, having had access granted to said Subject by the City of Henderson/State of Kentucky, for Official purposes, and Tagged: "Kentucky G35286 Official." The. . . subject made 2 specific passes by me, and at approximately 14:45 DID in-fact raise his Cellphone, Camera Lens facing out towards me, held near/against driver's-side window, in an attempt/effort to video-record me. He has the right to do such, and I believe I have the Right under Federal Law to have a copy of ANY/ALL Videos/ Photos/Audio Files obtained through such an action by an employee of the Government. Note: I tried to get him to stop, and let me smile for the video/ photographs, but he declined.
Appellant argued that the police officer was on duty at the time the alleged recording made and, therefore, the cell phone recording is subject to disclosure. Appellant's argument is that "[t]he act of use of a Cellphone, to Record Audio/ Video, by a person employed by the City of Henderson/State of Kentucky, and while being done so during the course of utilization of a State/City Granted Vehicle, now makes THAT FOOTAGE both Subject to Public Review, AND Open to FOIA/KORA 'Open Records' Requests."
On April 23, 2018, the City responded to Appellant's requests through the City Attorney. The City denied the request, stating "[t]here is no official police video/ audio that exists regarding your above request. The City of Henderson does not provide cell phones to police officers. Any pictures on police officers' private cell phones are not government records, and therefore, not subject to the Kentucky Open Records Act. "
On May 10, 2018, Appellant appealed the denial of the requested cell phone records. The City submitted a response to the appeal on May 23, 2018. The City states that police officers, the Chief of Police, and the City Attorney met with Appellant individually to address his concerns. However, the City states that "[i]f a police officer did take a picture of him, it would be on his private cell phone and that was not supplied to the Police Department. " The City points to the definition of a "public record" in KRS 61.870(2) and argues that "[a]ny photograph that might exist on a police officers' private phone. . .does not qualify under this definition as a public record, and therefore, it does not have to be produced by the City." The City states that there was no investigation or criminal charge filed regarding the parking lot incident.
To facilitate a correct resolution of this matter, this Office requested that the City forward a copy of the cell phone recording at issue for purposes of in camera review, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3. 2 On June 21, 2018, the City provided a CD of the cell phone recording at issue. The City also provided affidavits from Henderson Police Department Major Jermaine Poynter and the police officer that made the cell phone recording. Major Poynter states that he personally searched in the "Henderson Police Department ID drive to determine if any video, audio or photographs were uploaded as evidence that was responsive" to Appellant's request, but located no records. Major Poynter also indicates that he located the record by using the vehicle tag number provided by Appellant to locate the officer that made the cell phone recording.
The affidavit of the recording police officer affirms that the CD provided to the Attorney General is an exact copy of the recording he made of the parking lot incident. 3 The officer states that his shift had ended at 2:00 p.m., and he "was leaving the police department and was not on duty at the time he took the cell phone video. " The officer states that he is "a police officer who resides in Henderson," and "I am allowed to drive my vehicle home." The officer states that he saw Appellant in the police department parking lot at 2:45 p.m. and he decided to make the recording when he saw Appellant "making obscene gestures." The officer states that "[t]he video was not part of any type of investigation by the Henderson Police Department, " and "I did not show the video to anyone at the Henderson Police Department until it was requested as part of this Open Records Request."
The City cited KRS 61.870(2) as grounds for the denial of Appellant's request in its response to the appeal. The City advised Appellant that the recording was on a police officer's private cell phone and the City did not have an official recording of the parking lot incident. Regarding the definition of a public record, KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p.10. When 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; 17-ORD-223. The City cannot produce that which it does not have, nor is the City 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 Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005). However, the burden of proof is imposed by KRS 61.880(2)(c), and the City must offer some explanation for the nonexistence of the records. See
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" ); 12-ORD-195.
In this case, we find that the City satisfied its burden of proof and provided Appellant with a sufficient explanation for the nonexistence of the record. The record shows that the City searched the police department "ID drives" and established that there was no recording of the parking lot incident in its possession. The City located and interviewed the police officer at issue. In that interview, the City determined that the recording was made on the officer's personal cell phone while he was off duty. The City ascertained that the recording was not work related, and the police officer made the recording for personal reasons and without direction from the City. The officer did not share the recording with the City until after the request made pursuant to this appeal. Under these particular facts, we find that this cell phone recording was not "prepared, owned, used, in the possession of or retained by a public agency. " Accordingly, we find the City did not violate the Act when it declined to provide copies of the cell phone recording.
A party aggrieved by this decision may appeal it 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 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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
2 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
3 The Affidavit of Major Jermaine Poynter indicates that the officer made a CD copy of the cell phone recording for the Attorney General. The CD copy shall be destroyed at the time the decision is rendered, pursuant to 40 KAR 1:030 Section 3.