Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : Radcliff Police Department violated the Open Records Act by failing to affirmatively deny the existence of requested records. Police Department corrected the error on appeal by affirmatively denying existence of records and explaining the steps taken in making a good faith search for the records. Existence of Police Department General Order regarding use of body worn video cameras did not establish that the cases at issue were ones where body worn video cameras were required to be worn. Police Department violated Act by failing to substantively respond within three days of receipt of records request or explain delay in response.
Open Records Decision
The question presented in this appeal is whether the Radcliff Police Department ("RPD") violated the Open Records Act in its responses to requests for video recordings. For the reasons stated below, we find that RPD violated the Act by initially failing to affirmatively deny the existence of the recordings, but corrected that violation on appeal by affirmatively denying the existence of the records and explaining the steps taken in a good faith search for the recordings. RPD's General Order directing proper use of body worn video cameras did not presumptively establish that body worn video cameras were required to be used in the cases for which video records were requested. RPD's failure to respond within three days of receipt of request, or explain delay in response, are violations of KRS 61.880(1) and KRS 61.872(5).
By letter dated April 17, 2019, Joshua Powell ("Appellant") made a request to the Radcliff Police Department for copies of 13 sets of records. On appeal, Appellant questions RPD's April 17, 2019, responses to 11 of his requests. Appellant sought, in relevant part, copies of video recordings. In response to Request #2 for a copy of a grand jury recording regarding a closed case, RPD responded with "see attached," but Appellant states that no recording was attached and no explanation was provided for the recording not being provided. In Request numbers 3, 4, 5, 6, 7, 8, 9, 10, 11, and 13, Appellant requested copies of "body cam/'body worn video' recordings" regarding 10 court cases. RPD responded to those requests with "see attached," but did not include any recordings with its response, nor did RPD explain the reason for not including the requested recordings. Appellant states that "Radcliff Police Department General Order 27.5 addresses bodycam recordings and instances where records 'shall' be used, therefore these recordings should be readily available unless destroyed pursuant to local government record retention laws."
On appeal, RPD provided a copy of a May 8, 2019, letter to Appellant that contained slightly more information in the responses to each of the requests. RPD provided the letter to this office on May 23, 2019. Regarding Request #2 (for a Grand Jury recording), RPD stated that a "search was conducted and no audio or video exists." In response to Request numbers 3 and 4, RPD answered that a "search was conducted and no BWC [body worn camera recording] exists." In response to Request numbers 5, 6, 7, and 8, RPD responded that a "search was conducted and no audio or video exists." In response to Request numbers 9, and 11, RPD did not further respond to the request for recordings. In response to Request #10, RPD responded that "there is no RPD Officer Nick Pruitt" as named by Appellant as the arresting officer associated with the "body worn video" in that request. RPD also answered that a "search was conducted" in response to Request #10. In response to Request #13, RPD referred to Request #2, where the response was a "search was conducted and no audio or video exists."
RPD also responded on May 23 by email to this office and that response contained more thorough responses to each request. Regarding Request #2, RPD stated that Captain William Wells, Lieutenant Brian Davis and Detective Levi Mattingly searched the case report and "[n]o responsive grand jury recordings exist in the RPD files as indicated. ... No responsive records in the form of audio or video could be located." In response to Request numbers 3, 4, 5, 6, 7, 8, 9, 11, and 13, RPD stated that Captain Wells and Records Clerk Kim Chatoney "pulled and examined every relevant case file and pertinent records file as requested." Regarding Request #3, RPD stated that the "search could not locate any responsive body worn camera video as requested." Similarly, regarding Requests numbers 4, 5, 6, 7, 8, 9, and 13, RPD stated that a "search was conducted and no responsive audio or video exists." Regarding Request #11, RPD stated that every relevant case file and pertinent records file were searched by Captain Wells and Ms. Chatoney, and that the case report and "responsive photos were produced." Neither of the responses of May 8 or May 23 specifically responded to the request for "body-worn video" regarding Request #11.
Failure to Deny Existence of Requested Video Records . The right to inspect records attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10. The Attorney General has observed that a public agency's "inability to produce records due to their apparent nonexistence is tantamount to a denial and . . . it is incumbent on the agency to so state in clear and direct terms ." 01-ORD-38, p. 9. 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 (emphasis added); 09-ORD-145. In short, "[i]f a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4; 14-ORD-225.
RPD's initial responses of April 17, 2019, were deficient, as they did not clearly state that the requested video records do not exist. On appeal, RPD cured its initial violation by explaining that a good faith search was conducted for the requested records and affirmatively stating that those records do not exist. We affirm RPD's denial on the basis that the requested records did not exist and that RPD has now affirmatively so indicated to Appellant. 1
Insufficient Basis for Claim that Recordings Exist . The Attorney General has consistently recognized that a public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10. 2In order to satisfy the burden of justifying its denial per KRS 61.880(2)(c), 3however, a public agency must offer some explanation for the nonexistence of the records in dispute at a minimum. See 01-ORD-38; 04-ORD-075; 12-ORD-231. This office has recognized that, "the existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable." 411-ORD-074, p. 2; 12-ORD-195. The agency can overcome this presumption by explaining why the record does not exist. Id. In
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011), the Kentucky Court of Appeals approved this position, 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." See 12-ORD-195. Where "the existence of the records in dispute is postulated on existing legal authority or facts in evidence rather than speculation," this office has found that a public agency's response "was deficient, inasmuch as it offered no explanation for the nonexistence of the record(s) in dispute notwithstanding legal authority mandating creation of such a record(s)[.]" 11-ORD-111, pp. 3-4; 11-ORD-074, pp. 3-5; compare 12-ORD-209. In this instance, however, we cannot say that the "legal authority" cited by Appellant is adequate to determine that the requested records should exist.
Appellant invoked RPD's General Order 27.5 as the basis for claiming that there should have been body worn video recordings but the record does not establish that the cases Appellant has appealed were ones for which body-worn video was required by General Order 27.5. The "Policy" section of the General Order states that "[o]fficers assigned the use of these devices [Body Worn Video Recorders (BWV)] shall adhere to the operational objectives and protocols outlined herein so as to maximize the effectiveness and utility of the BWV and the integrity of evidence and related video documentation." This policy only applies to RPD officers "assigned the use of" body worn video recorders and Appellant merely assumes that the officers involved in the cases at issue were assigned the use of BWV. Under these circumstances, we cannot presume that the cases in question were ones where BWV recordings were ever created. Thus, we cannot find that RPD must explain the nonexistence of the purported video recordings.
Failure to respond within three days . Appellant stated that, although RPD's response is dated April 17, 2019, he did not receive that response until April 30, 2019, when he met with the Radcliff City Clerk on an unrelated matter and received the response in person. Appellant further stated that he received an email on April 17, 2019, acknowledging receipt of his request: "Mr. Powell -- Hello again. I have received your Open Records Request dated, 041719. Have a great day. W." RPD did not address this issue on appeal and we, therefore, take Appellant's uncontested statements as fact.
As a public agency, RPD must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests submitted pursuant to the Act. In part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Also, KRS 61.872(5) dictates that "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain." 01-ORD-38, p. 5 (emphasis added). RPD's failure to respond to the requests within three days after receipt violated KRS 61.880(1), and the absence of a detailed explanation for delay constitutes a violation of KRS 61.872(5). RPD should take notice of the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9.
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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