Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Covington Police Department ("City") violated the Open Records Act in its disposition of Monica Luttrell's July 10, 2019, request for "all body cam footage (unedited) of incident on Jan 28th (Ky 19-004810) beginning at 3:27 PM body cam footage from all officers involved: Wesley Cook, Ian Byrne, Kyle Warner, Ethan Livingood, Specialist Malone." For the reasons stated below, we find that the City did not violate the Act by redacting images of confidential information, or by failing to provide nonexistent records. In addition, due to subsequent remedial measures, we find that the City did not subvert the intent of the Act, short of denial of inspection, within the meaning of KRS 61.880(4), by imposing an excessive fee.
In a July 12, 2019, response to Ms. Luttrell's request, Captain Gregory J. Jones, Administrative Services Commander, stated: "The City has redacted the image of an undercover officer pursuant to KRS 17.150(2)(c), which is incorporated into the open records act through KRS 61.878(1)(l). KRS 17.150(2)(c) provides that records which would disclose information which may endanger the life or physical safety of law enforcement personnel may be withheld from inspection. . . . In order to protect the safety of our undercover law enforcement personnel, the City does not reproduce and/or disclose their image."
Captain Jones further asserted that some portions of the video were "being redacted as they contain footage of Criminal Justice Information Systems. . . . KRS 61.168(4)(k) provides 'a public agency may elect not to disclose body-worn cameras containing video or audio footage that: Would result in the disclosure of nonpublic or confidential data classified as Criminal Justice Information Services data by the Federal Bureau of Investigation."
Finally, Captain Jones stated that "Specialist Malone is not assigned a body worn camera as part of his duties," so no such footage existed for him; likewise, the City had no footage for Ian Byrne, as he was "not employed by this agency." With the stated exceptions, the City made the recordings available to Ms. Luttrell on a disc for a fee of $ 5.00, giving her the option of picking up the disc at police headquarters or providing a self-addressed stamped envelope along with her payment.
In Ms. Luttrell's letter of appeal, which we received on August 15, 2019, she did not expressly take issue with any of the redactions or omissions. Specifically, however, she stated: "While I did ask for unedited footage, blurring the face of officer Malone would be fine." As there is clearly no controversy between the parties as to that specific redaction, we need not adjudicate that issue; therefore, we proceed to address the City's redaction of Criminal Justice Information Services ("CJIS") data.
The CJIS Division of the Federal Bureau of Investigation serves as a central repository for criminal justice information, encompassing the National Crime Information Center ("NCIC"), Uniform Crime Reporting ("UCR"), the Integrated Automated Fingerprint Identification System ("IAFIS"), and the National Incident-Based Reporting System ("NIBRS"). 1In a response to the appeal dated August 22, 2019, the City clarified that "images of confidential data, classified as CJIS, [were] captured on the body-camera of our officers while they were using their in-car mounted laptops," and therefore the City redacted those portions of the recordings.
Law enforcement agencies' "[d]enial of access to centralized criminal history records maintained . . . in the NCIC database has been approved in a series of open records decisions dating back to 1976." 06-ORD-128. This is pursuant to KRS 17.150(4), which provides that "[c]entralized criminal history records are not subject to public inspection." That subsection is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which applies to "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In applying KRS 17.150(4) to body-worn camera recordings, a public agency would ordinarily be bound by KRS 61.878(4), which states: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." To reduce this burden of redaction, the 2018 General Assembly enacted KRS 61.168(4), which provides, in pertinent part:
Notwithstanding KRS 61.878(4), unless the request meets the criteria provided under subsection (5) of this section, a public agency may elect not to disclose body-worn camera recordings containing video or audio footage that:
. . ..
(k) Would result in the disclosure of nonpublic or confidential data classified as Criminal Justice Information Services data by the Federal Bureau of Investigation.
To determine whether KRS 61.168(4) applies in this case, by its terms, we must refer to the exceptions listed in KRS 61.168(5).
In her letter of appeal, Ms. Luttrell stated that the requested footage was of the "officers involved in [her] arrest of January 28, 2018." KRS 61.168(5) provides, in part:
If the recording contains video or audio footage that:
. . ..
(b) Depicts an incident which leads to the detention or arrest of an individual or individuals, the disclosure of the record shall be governed solely by the provisions of KRS 61.870 to 61.884, including all of the exceptions contained therein[.]
Because this footage undisputedly depicts the circumstances of the arrest of an individual, KRS 61.168(5)(b) excludes the footage from the application of KRS 61.168(4)(k).
Therefore, the City may not elect to withhold the footage entirely, but may only redact the portions containing CJIS information pursuant to KRS 17.150(4). According to the record on appeal, that is precisely what the City did. Thus, even though KRS 61.168(4)(k) does not apply, we find no violation of the Open Records Act arising from that redaction.
As for the nonexistent footage from Ian Byrne and Specialist Malone, 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 light of the City's satisfactory explanation for the nonexistence of the recordings, it did not violate the Act by not producing such records. Therefore, we find no improper denial of access to public records.
Pursuant to KRS 61.880(4), this office has jurisdiction to determine whether "the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees." Although Ms. Luttrell did not expressly raise the issue of whether the $ 5.00 fee was excessive, "this office has recognized that a public agency must demonstrate that a fee imposed to provide a CD or DVD represents the actual cost of reproduction , based on media and mechanical processing costs, but excluding staff costs, or must recalculate its copying fee to conform to the criteria set forth at KRS 61.874(3)." 13-ORD-147 (emphasis added). Accordingly, we have held that a flat fee of $ 5.00 for a CD or DVD, which was not demonstrably based on those statutory factors, subverted the intent of the Open Records Act within the meaning of KRS 61.880(4). 10-ORD-022; 09-ORD-090.
In 10-ORD-022, we found that the City of Bardstown's cost to provide a CD was only $ .40, based on the factors in KRS 61.874(3), as opposed to the $ 5.00 fee it charged. Similarly, in 09-ORD-090, where the Henry County Judge/Executive's actual cost to reproduce a DVD was $ 1.00, we found a $ 5.00 fee excessive. In keeping with those decisions, this office requested that the City substantiate its actual costs.
In response to our inquiry, the City admitted that its fees were excessive under KRS 61.874(3), but provided evidence to substantiate that its actual cost was $ 2.44 for providing a DVD with enclosing sleeve. The City agreed to reimburse Ms. Luttrell for the difference or apply that amount toward payment for her other pending requests, and it plans to revise its fees to reflect actual costs in the future. Thus, although the original fee was excessive, the city's subsequent recalculation of the fee mitigated this error. In light of these subsequent corrective measures, the City "cannot be said to have subverted the intent of the Open Records Act within the meaning of KRS 61.880(4)." 05-ORD-214.
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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