Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in these consolidated appeals is whether the Radcliff Police Department ("RPD") violated the Open Records Act in the disposition of Joshua Powell's March 21, 2019, and March 24, 2019, open records requests. For the reasons that follow, we find that RPD procedurally violated the Act by making an untimely response and substantively violated the Act, in part, as to the second request; but did not violate the Act as to a request for information or for records that did not exist.
On May 1, 2019, in a letter referencing both requests, Mr. Powell notified this office that he had "met with the Radcliff City Clerk and received some records," but he still had some "issues" with certain items of the March 24, 2019, request. Since Mr. Powell indicated no ongoing controversy as to the March 21, 2019, request, we find that the issues relating to that request are moot. Accordingly, we address Mr. Powell's specific arguments concerning numbered items 4, 6, 8, 9, 10-16, 19, and 21 of his second request, and the procedural issues involved.
Timeliness and adequacy of response
RPD's initial written response to the request, issued on March 25, 2019, consisted of only the following: "Hello. I am in receipt of another open records request from you dated 03/24/2019. Have a great day." In his letter of appeal dated April 11, 2019, Mr. Powell correctly argued that this was not a sufficient response under KRS 61.880(1), which requires a public agency to make a disposition of an open records request within three days, excluding weekends and legal holidays, unless the records are unavailable for a reason listed in KRS 61.872(5) and the agency gives a detailed explanation of the cause for further delay.
In a response to this appeal dated April 18, 2019, RPD admitted to these "procedural defects" and "untimely response" to Mr. Powell's request, and stated that the delay was due to a lack of "adequate manpower to handle voluminous and difficult open record requests during peak periods." Given these admissions, we conclude that RPD violated the Open Records Act by failing to make a timely response to Mr. Powell's March 24, 2019, request as required under KRS 61.880(1).
On April 3, 2019, RPD responded specifically to each item of the March 24 request. We therefore address the responses issued on that date.
Item 4. "List of VicVu Bodycams or similar Body Worn Video . . . issued and/or used by [certain named] officers in their duties [during] the dates of 9/9/2016-11/1/2016."
RPD denied item 4 because "agencies are not required to provide information, create a record, perform research or create a list to satisfy a request." On appeal, Mr. Powell argues that "[w]hile there may not be a 'list,' there should be some type of documentation of whom [ sic ] is issued bodycams. "
While "some type of documentation" other than a list might exist, Mr. Powell specifically requested a list. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. Nor is an agency "obligated to compile a list or create a record to satisfy an open records request." 12-ORD-007 n.1 (quoting OAG 76-375). Therefore, we find no substantive violation as to item 4.
Item 6. "Any reports from [certain named officers in] regards to Body Worn Video (BWV) not properly working (GO 27.5 III-A) . . . [f]or dates of 1/1/2016-1/1/2016."
As to item 6, RPD replied, "These records do not exist." On appeal, Mr. Powell cites RPD General Order 27.5, which states that if body cameras are "found to be functioning improperly, the officer shall report the problem immediately to their supervisor." He alleges that there were "numerous instances where bodycams were [not turned on] during the incident," and claims that therefore "[t]here should be reports where officers reported their bodycams were not working properly," unless "the bodycam was purposely turned off."
Even assuming the truth of the facts Mr. Powell alleges, we find that his argument does not amount to a prima facie showing that written reports of malfunctioning cameras from those officers should exist. 1 In theory, officers could have orally reported malfunctioning cameras, or could have turned them off during such incidents either accidentally or on purpose.
Mr. Powell additionally states, "If all bodycams in use by these officers were working properly[,] a confirmation from [RPD] would alleviate # 6." While that may be true, the Open Records Act does not require a public agency to honor a mere request for information. 03-ORD-028. Based on the limited facts in the record, RPD discharged its duty by stating that the records did not exist. 99-ORD-150. Thus, we find no violation as to item 6.
Item 8. "All dispatch recordings, phone recordings and MDT messages exchanged by Officer Clennon Smith (943) with dispatch and any other officer on 9/14/2016-9/15/2016."
Item 9. "Any written reports or recordings from Clennon Smith (943) transporting a [ sic ] Eloysia James from Lousiville [ sic ] Kentucky to Hardin Memorial Hospital and Lincoln Village Juvenile facility on 9/15/2016."
As to both items 8 and 9, RPD replied, "These records do not exist." On appeal, however, Mr. Powell alleges that Officer Smith worked on those dates, during which he "transported juvenile arrestees, took calls and responded to dispatched calls." He further asserts that RPD policy requires an officer "to call in his mileage before and after transportation of each person." As of its latest filing, dated May 15, 2019, RPD has not contested any of these allegations.
Where "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," the burden shifts to the public agency to overcome the presumption that they exist by explaining why they do not. 11-ORD-111. Since Mr. Powell's uncontested allegations establish that at least some of the requested records in item 8 ought to exist, and RPD has not attempted to rebut this presumption with an explanation, its disposition of item 8 "was both procedurally and substantively deficient. " Id.
With regard to item 9, however, Mr. Powell does not specifically allege that Officer Smith transported Eloysia James. With nothing in the record to establish a rebuttable presumption that records should exist in response to item 9, we find that RPD discharged its duty under the Open Records Act by affirmatively stating their nonexistence.
Items 10-16. "Copies of all reports filed by [certain named officers] in regards to [certain incident reports identified by number, to] include any written reports, video and/or recordings from this incident."
Mr. Powell complains that he received written reports for these items but no audio or video recordings, "nor any explanation if audio/ video exist." In responding to an open records request, it is "incumbent on the [public agency] to assert the nonexistence of any responsive record." 19-ORD-028. Therefore, if a record does not exist, "a written response that does not clearly so state is deficient. " 02-ORD-144. Here, it is still unclear whether the requested recordings did not exist or whether RPD simply did not provide them. "Failure to address a portion of an open records request is a violation of the Act." 18-ORD-022.
Where a public agency "has stated that the records disclosed comprise all existing responsive records," we have found this "tantamount to an affirmative statement that the remaining records requested do not exist." 04-ORD-040. Here, however, RPD made no such statement, but merely responded with the single word "Attached," or else asserted that Mr. Powell had already received the written records. Thus, by failing to respond to the "audio/ video" portions of items 10-16, RPD violated the Open Records Act.
Item 19. "All training documents, training rosters and sign in sheets [for] training conducted in regards to General Order 2.3 Duty to Disclose, Brady vs. Maryland (1963) and Giglio vs. United States (1972) [for] dates of 1/1/2016-present."
RPD responded to item 19, "These records do not exist." On appeal, Mr. Powell points out that RPD General Order 2.3 provides the "special services commander will ensure that all sworn personnel are familiar with the requirements of this policy." He does not, however, cite any requirement that RPD use "training documents," "training rosters, " or "sign-in sheets" to ensure such familiarity, nor even conduct any formalized training. Therefore, in the absence of a prima facie case that the requested records should exist, RPD fulfilled its duty under the Act by affirmatively stating that no such records existed.
Item 21. "Special Services commander whom [ sic ] oversees the [RPD] General Order 2.3 'Duty to Disclose', exculpatory evidence Brady vs. Maryland (1963) and Giglio vs. United States (1972) [for] dates of 9/9/2016-present."
RPD responded to item 21 that "the request is so vague that one cannot determine with reasonable certainty which records are being requested," and therefore it was not a proper request under KRS 61.872, which provides that a request for copies by mail must precisely describe the records. On appeal, Mr. Powell states, "Pursuant to [RPD] policy 2.3 there is a 'special services commander' whom [ sic ] is required to train officers. I was asking for the name of this special services commander. " In light of Mr. Powell's clarification, we find that item 21 was a request for information, which a public agency need not honor. 02-ORD-88. Thus, we find no violation as to item 21.
Conclusion
We therefore conclude that the Radcliff Police Department procedurally violated the Open Records Act by failing to respond in a timely manner to Mr. Powell's request of March 24, 2019. Additionally, we find that that RPD committed substantive violations of the Act as to item 8 of the request, and as to items 10-16 insofar as they relate to audio/ video recordings, but did not substantively violate the Act as to items 4, 6, 9, 19, or 21.
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 proceedings.
Footnotes
Footnotes
1 See 11-ORD-111 ("this office has been obliged to affirm public agency denials of requests based upon the nonexistence of records in the absence of a prima facie showing that the records being sought did, in fact, exist in the possession of the agency").