Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Louisville Division of Police violated the Open Records Act in the disposition of Aaron Rivers's July 25, 2002, request for "a full color copy of the arrest photo of Damian Cole Mosley, AKA Damian Cole King . . . Arrest # 431076 (Photo # is the same.)" 1 For the reasons that follow, we find that because the Division of Police does not maintain a copy of Mr. Mosley's arrest photo, the Division's Public Information Specialist Alicia M. Smiley properly responded to Mr. Rivers's request by advising him that the Division "is not the official custodian of records for arrest photos," and providing him with the name and location of the official custodian of the arrest photo.
In his letter of appeal, Mr. Rivers observed:
When the Louisville police arrest a person, a photograph is taken and maintained by Jefferson County Corrections. However, the photos are in the full control of the Department, we well as Corrections. An example of this is that an officer can obtain a photo of a previously arrested person while he is in the field to confirm his identity.
The Louisville P.D. could've obtained this photo but didn't because it could be obtained from another agency as well. They have convenient access to these photos.
It was Mr. Rivers's position that he is "being given the runaround."
In supplemental correspondence directed to this office following commencement of Mr. Rivers's appeal, Stephanie Harris, Assistant Director of Law for the City of Louisville, advised:
The Louisville Division of Police did not deny Mr. Rivers access to public records. The Division of Police properly advised Mr. Rivers that the Division did not maintain such records . . . . The Louisville Division of Police and Jefferson County Corrections are completely separate agencies.
Mr. Rivers alleges that the Louisville Division of Police could have obtained the photo but did not because it could be obtained from another agency. The Louisville Division of Police is not obligated under the open records act to obtain records that are maintained by another agency. Pursuant to KRS 61.872(4), the Division's only obligation is to notify Mr. Rivers of the proper custodian and the address of the proper custodian, if known.
Ms. Harris expressed confidence that the Division's disposition of Mr. Rivers's request would be affirmed on appeal.
Pursuant to KRS 61.880(2)(c) 2 and 40 KAR 1:030 Section 3 3, the Attorney General requested additional information from the Division of Police on September 13, 2002, to substantiate the Division's position. In response to the series of questions we posed, Ms. Harris confirmed that the Division has arrested Damian Cole Mosley, aka Damian King, several times, but indicated that she could neither confirm nor deny that Mr. Mosley/King was ever photographed by the Division. She explained:
The Division's arrest records are managed by a computerized database. I have enclosed a copy of Damian King's computerized arrest transcript for your review. This database does not include photographs of the arrested subject. In order to determine whether the Louisville Division of Police took an arrest photograph of Damian King, I would have to locate each arresting officer to verify whether a photograph was taken. Please be advised that the arresting officer is not located in the computerized database.
Ms. Harris acknowledged that "there is an arrest photograph of Damian King that appears to have been taken by the Jefferson County Corrections Department." 4
We next asked the Division of Police whether the Division maintains a file on Damian Mosley/King and, if so, whether the file contains an arrest photo taken by either the Division or Jefferson County Corrections. Ms. Harris replied:
As stated above, I am unable to verify whether the Division maintains an actual file on Damien Cole Mosley or Damien King. I am unable to verify because the arresting officer is not listed in this database. The Division would have to locate the individual officer(s) and have them verify whether an actual file exists. The Division employs more than 700 officers.
Since Damian Cole Mosley (King) arrests date back to 1999, these older records may have been archived if such records exist. Each District and Unit of the Division is responsible for archiving the district's or unit's files and/or records. Therefore, in order to determine the existence of these records and whether the records have been archived, the Division would have to locate the arresting officer and find out what unit or district the officer was assigned to at the time of the arrest.
In response to our inquiry concerning the procedure for photographing persons arrested by the City of Louisville Division of Police, Ms. Harris stated:
The procedures for photographing persons arrested are set forth in the Louisville Division of Police Policy and Procedural Manual. All arrested subjects are photographed using this procedure. Please be advised that officers of the Louisville Division of Police are not required to photograph arrest subjects, except in cases of excessive force. These "use of force" photographs are taken solely to document the existence or non-existence of injuries.
She indicated that the Division has entered into a user agreement with Jefferson County Corrections for "Mugs Plus" Access on an Internet site maintained by Corrections that is "made available to all law enforcement personnel for internal informational purposes."
As additional support for the Division's position, Ms. Harris furnished this office with copies of Article 55 of the City of Louisville Policy and Procedure Manual, relating to photographing prisoners, and the agency user agreement for "Mugs Plus" Access. Article 55 describes the procedures for acquiring photographs "related to Criminal Investigations and/or Information" that are maintained by the Jefferson County Corrections Department Identification Bureau and released to police officers for investigative purposes. The agency user agreement delineates the restricted purposes for which the Division may access criminal booking records contained in the Jefferson County Inmate Management System, and the security measures that must be employed relative to authorized access, and provides for termination of services for unauthorized use.
In an early open records opinion, this office recognized that "the personal privacy exemption does not apply to the photograph of a person who is arrested, booked, and photographed by the police . . . ." OAG 83-212, p. 4. In general, therefore, and unless a separate exemption can legitimately be invoked to deny access, arrest photographs must be disclosed upon request if the photograph is maintained by the agency to which the request is directed. The Division of Police does not dispute this position, but instead asserts that it maintains no known arrest photographs of Damian Mosley/King. Although the Division's responses are somewhat contradictory, it appears that any such photographs of Mr. Mosley/ King that exist are maintained by the Jefferson County Corrections Department. Assuming that the Division has neither custody nor control of any arrest photographs of Damian Mosley/King, we affirm its denial of Mr. Rivers's request, and find that it discharged its duty under KRS 61.872(4) 5 by so notifying Mr. Rivers and furnishing him with the name and location of the official custodian of Mr. Mosley/King's arrest photograph. We do not believe the Division is obligated to obtain a copy of an arrest photograph from either the Identification Bureau of the Jefferson County Corrections Department or "Mugs Plus" in order to honor an open records request, or indeed that this would constitute a permissible use of an arrest photograph, under the agency user agreement, for which the photograph could be obtained.
We therefore conclude that the City of Louisville Division of Police did not violate the Open Records Act in the disposition of Mr. Rivers's July 25, 2002, open records request. If Mr. Rivers wishes to obtain a copy of Mr. Mosley/King's arrest photograph, he may do so by submitting a written open records request to the Jefferson County Corrections Department.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Aaron Rivers300 Mail Knob Rd.Somerset, KY 42501
Alicia SmileyCity of LouisvilleDivision of PolicePublic Information Office633 W. Jefferson StreetLouisville, KY 40202
Stephanie HarrisCity of LouisvilleDepartment of Law601 W. Jefferson StreetLouisville, KY 40202
Footnotes
Footnotes
1 Mr. Rivers provided the Department with additional personal identifiers for Mr. Mosley. These identifiers are omitted in deference to Mr. Mosley's privacy interests.
2 KRS 61.880(2)(c) provides in part:
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.
3 40 KAR 1:030 Section 3 provides:
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.
4 Ms. Harris did not indicate in whose custody that photograph resides, or where she located it. We assume she located it through the "Mugs Plus" secure Internet site later described in her response, and not in an arrest file maintained by the Division. Given the Division's ostensibly inconsistent responses to our questions, we reiterate, for purposes of absolute clarity, that if a copy of a photograph of Mr. Mosley/King currently resides in the Division's custody, it should be released to Mr. Rivers, upon prepayment of a reasonable copying charge, unless a legitimate statutory basis for denying access is invoked.
5 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.