Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Madison County Detention Center ("MCDC") violated the Open Records Act in the disposition of Dawn Crawford's ("Appellant's") requests for records. For the reasons stated below, we find that MCDC violated the Act when it when it failed to advise Appellant that no video recording of a jail visit existed. MCDC further violated the Act when it failed to include a statement of the specific exception authorizing the withholding of the audio recording of that same jail visit. However, MCDC did not violate the Act when it denied the requests for records that did not exist. We further find that MCDC did not violate the Act when it provided Appellant an undated policy and procedures manual in response to her requests.
Appellant submitted two (2) open records requests to MCDC. On March 26, 2018, Appellant submitted a request seeking, "the inventory sheet of Marc Crawford's personal belongings at the time of his incarceration on May 25, 2017." Appellant also requested, "the location of ALL camera's [sic] in the Madison County Detention Center." Appellant explained that her request "includes All camera's [sic] in Sally port, holding area, hallways to transport inmates, visiting area, medical bay, phone area, inmate cells, solitary cell, parking lot and any other camera's in/on the premises. . .[a]lso include All locations of phones accessible for inmates to contact family/friends during booking process and thereafter." Appellant also requested "the policy/procedures for tasing an inmate, policy/procedures for the transport of an inmate, policy/procedure for medical attention and medication administration, in addition policy/procedures for inmate booking and housing assignment."
Appellant subsequently submitted a second request. In that request, Appellant reworded her request for the camera locations stating, "I am requesting a list of all camera's [sic] within and surrounding the outer perimeter of the Madison County Detention Center." Appellant also requested "the video and audio of the visit with my husband, Marc Crawford, on Tuesday, May 30, 2017 between 1 pm and 4pm." Appellant stated that it was her second request for the audio and video recording of the jail visit, but no previous request is documented in the record.
MCDC Captain Greg Johnson responded to Appellant's requests by letter. The letter states that "[i]n response to your request for the location of all cameras, there is no such record." Captain Johnson also states that "[c]ameras are located throughout the building but there is no master log or record of the specific location." Regarding the video and audio recording requested by Appellant, Captain Johnson states that "[a]ll videos specific to Mr. Crawford have previously been produced."
On July 12, 2018, Appellant appealed the disposition of her two requests. Appellant raises four issues in her appeal. First, she disputes MCDC's assertion that "there is no master log or record" regarding the location of cameras. Second, Appellant states that "I was not given all policies/procedures that were requested" and "there were no dates of origin or dates of next review" for the policies MCDC provided. She argues that, due to the lack of dates, "I can't tell if they are current." As the third issue, Appellant alludes to the fact that MCDC did not provide a copy of the recording of the May 30, 2017 jail visit with her husband. Finally, Appellant argues that the video recordings she received from MCDC were "corrupted and put in a format that is unreadable." She requests that, "any video MCDC has provided be resubmitted in a non corrupt and readable manner, to include a format I can view."
On July 19, 2018, Assistant Madison County Attorney Matthew Day responded to the appeal on behalf of MCDC. Mr. Day stated "we have on multiple occasions answered this open records request" and MCDC has sent the requested documents to Appellant multiple times. Mr. Day states that MCDC sent responses through Captain Greg Johnson, Assistant Madison County Attorney Meena Mohanty, and Chief Deputy Tom Jones. Regarding the request for camera locations, Mr. Day states that "there is no log, master list or record of where these are placed through out [sic] the facility."
To facilitate a correct resolution of this matter, this office requested that MCDC provide copies of the records that were sent to Appellant for in camera review, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3. 2 On July 23, 2018, MCDC complied with the request and sent copies of the records disclosed to Appellant. MCDC also included a July 17, 2018 letter from Chief Deputy Tom Jones. Deputy Jones stated that MCDC does not have a video recording of the specific jail visit requested by Appellant, but it does possess an audio recording that may contain that visit. Deputy Jones stated that MCDC did not disclose the audio recording to Appellant because "[t]he audio from that period of time would contain other inmate's private conversations with their family members."
Regarding the location of cameras, MCDC complied with its duties under the Open Records Act. MCDC was not required to create a camera log or list of cameras locations to meet Appellant's request for records. The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those that it does not possess. 07-ORD-190, p. 6; 06-ORD-040. This office has also found that the Act "was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." 02-ORD-165, p. 4.; 09-ORD-145. Accordingly, MCDC had no duty to create records to suit Appellant's open records request.
There is also no basis for a finding that MCDC has a log of camera locations for inspection. Appellant argues that MCDC has documentation of camera locations, and the burden of proof in an open records Appeal is imposed on the public agency, pursuant to KRS 61.880(2)(c). However, the Act does not require the public agency to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the requester. See Bowling v. Lexington Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 340-41 (Ky. 2005); 07-ORD-188; 07-ORD-190. This office has found that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4. However, Appellant does not make a prima facie showing that any authority directs MCDC to create or maintain such a record. Therefore, we find that MCDC did not violate the Act in its disposition of Appellant's request for a list of camera locations.
MCDC did not violate the Act when it provided a copy of the policies and procedures manual that was not signed and dated. Appellant argues in her appeal that the manual disclosed by MCDC was not marked with an effective date. Clearly, Appellant expected that the polices and procedures manual would be dated to verify that it is the current version. However, MCDC did not violate the Act by failing to provide a copy marked with an effective date. This office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. Elaborating upon this position, the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13 (citing OAG 87-84).
Our office has also found "that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4. Simply put, "what the public gets is what. . . [the public agency has] and in the format in which. . .[the agency has] it." 02-ORD-165, p. 5, citing OAG 91-12, p. 5. Accordingly, we find that MCDC did not violate the Act in its disposition of Appellant's request for the MCDC policies and procedures. 3
However, we find that MCDC's initial written response to Appellant's open records request violated KRS 61.880(1). 4 First, the written response violated the Act because it failed to inform Appellant that a video recording of the May 30, 2017 jail visit did not exist. The inability of MCDC to produce the video recording because no recording existed was "tantamount to a denial and. . .it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 09-ORD-019. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient." 02-ORD-144, p.3; 09-ORD-145. The mandatory language of KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Accordingly, this office has recognized that "a public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the document exists." OAG 19-101 (citing 86-38); 00-ORD-82; 17-ORD-209. MCDC's written response should have affirmatively advised Appellant that the requested video recording did not exist.
MCDC also violated KRS 61.880(1) because it failed to inform Appellant that it had denied her request for the audio recording of the jail visit and state the exception that authorized that denial. KRS 61.880(1) provides that an agency response denying inspection must "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." A "limited and perfunctory response" does not meet the requirement of the statute. See Edmondson, 926 S.W.2d at 858. MCDC states that it did not disclose the record because the conversations of other inmate visits are also on the requested audio recording. However, a public agency has a duty to separate the excepted material and make nonexcepted material available for examination if feasible. KRS 61.878(4). 5 Accordingly, MCDC should make a redacted copy of the audio recording available. If MCDC determines that redaction of the recording is not feasible, the Act requires MCDC to inform Appellant of that fact in the denial and state the specific exception authorizing the withholding of the recording.
Appellant argues that the video recordings she received from MCDC were "corrupted" and "put in a format that is unreadable." However, there is insufficient evidence in the record to support a finding that MCDC violated the Act. As we have observed in past decisions, public agencies are "obligated to furnish [records requesters] with legible copies of otherwise legible documents" and cannot be said to have fully discharged their duties under the Open Records Act until they have done so. 98-ORD-161, p. 4 (citing 93-ORD-46, p. 3 (finding that "production of records in a format which renders them inaccessible, at least as to the person requesting them, constitutes a subversion of the law")). However, Appellant does not describe the exact nature of the difficulties she had with the recordings. Neither does Appellant state the particular digital format she required for the video recordings. MCDC produced copies for this office that were clear and in a usable audio-visual format. There is no evidence in the record that MCDC subverted the Act with regard to the quality of the video recordings it provided to Appellant. We encourage the parties to continue to cooperate to resolve any issues regarding the exchange of the public records.
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. 180:
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