Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in the disposition of John Yarbrough's January 22, 2003 request for "all maintenance or other records indicating installation of video cameras in all Post 2 cars." For the reasons that follow, we affirm KSP's disposition of Mr. Yarbrough's request.
In a letter dated January 24, 2003, Diane H. Smith, KSP's Official Custodian of Records at the time of Mr. Yarbrough's January 22 request, notified Mr. Yarbrough that KSP had "no additional information on the maintenance and/or installation of video cameras in all Post 2 cars other than what was sent to [him] on September 11, 2002" in response to an earlier request. In her September 11 response to Mr. Yarbrough's earlier request, a copy of which he furnished to this office, Ms. Smith had advised:
Enclosed are all the records we have regarding the times and dates cameras were installed in all Madisonville Post vehicles. These records only go back to some of the 99 car models and these records are only kept to verify who did the installation soon after the vehicle is issued. We have no records of when the camera systems at the Madisonville Post were added or removed in the field.
The names of the technicians who installed the cameras are listed on the enclosed documents. . . . The post technician assigned to the Madisonville Post is Ron Dozer.
Ms. Smith had further advised that the "information may not be an accurate account of what vehicles have cameras in them but it is the only information [KSP has]." Mr. Yarbrough furnished this office with a copy of "one of three" records released by KSP on September 11, 2002 "show[ing] in detail the camera installation for SP # 2372." He also furnished this office with a copy of "nine [computer generated] substitute records" he received from KSP following the initiation of an open records appeal on September 23, 2003, which in his view "lack details, verifiability, and [the] radio technicians' signature" but "pro[ve] that all nine cameras had been installed by September, 2002." It is from KSP's alleged failure to release reliable and verifiable documentary "proof" that these cameras were installed by September, 2002 that Mr. Yarbrough appeals, arguing that although KSP's Records Retention Schedule requires that agency to maintain Radio Technician Reports for a period of one year, he has been, and continues to be, denied access to those reports.
In supplemental correspondence directed to this office following commencement of Mr. Yarbrough's appeal, KSP's current custodian of records, Terry D. Edwards, elaborated on KSP's position. He explained:
The central issue in this appeal seems to be that Mr. Yarbrough is asserting that the Kentucky State Police has not released certain records relating to the installation of cameras in certain state police cruisers at the Madisonville State Police Post and that these records were allegedly the subject of requests submitted by him over the past 16 months. The basis for Mr. Yarbrough's beliefs seem to stem from the fact that records released to him by KSP in September 2003 lead him to believe that other camera installation records, which were allegedly the subject of previous requests dating back to September 2002, should exist and, therefore, these other records should have been released to him as part of one, or more, of his previous requests for these records. The short answer to this appeal is that Kentucky State Police personnel have repeatedly made good faith efforts to locate and release any and all records relating to the installation of these cameras; however, we cannot release what is not requested or what we cannot find.
Mr. Edwards noted that on more than one occasion, and again on the occasion of this appeal, KSP has extended an invitation to Mr. Yarbrough to meet with a representative of the KSP Legal Branch and a senior supervisor from the Madisonville Post at the Post "for the express purpose of ensuring that copies of any and all records in the possession and control of KSP that Mr. Yarbrough desires are provided to him. . . ."
It is the decision of this office that KSP fully discharged its duties under the Open Records Act in affording Mr. Yarbrough access to all existing records that are responsive to his request, and that it has gone above and beyond its statutory duty in repeatedly agreeing to meet with him to resolve any lingering records access issues. Further, because Mr. Yarbrough does not cite, and we have not located, a specific legal requirement that KSP maintain verifiable written proof documenting the installation of video cameras in police cruisers, nothing appears in the record on appeal to raise the issue of the agency's veracity or to call into question its records keeping practices. Accordingly, we have not referred this appeal to the Department for Libraries and Archives for additional inquiry per KRS 61.8715. Compare 97-ORD-116 and 98-ORD-83.
This office has long recognized that a public agency cannot provide access to records which do not exist. See, for example, OAG 83-111; OAG 87-54; OAG 91-112; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents on behalf of a requester who claims that they must exist notwithstanding the agency's claim to the contrary. OAG 86-35. Thus, at page 5 of OAG 86-35 we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194B.102, dealing with the coordination of strategic planning for computerized information systems in state government]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [The Open Records Act] " and statutes relating to records management. Id. Although there are occasions when, under the mandate of this statute, the Attorney General requests that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiries by this office or referral to the Department for Libraries and Archives for additional action.
The subject of videotape traffic stops is exclusively dealt with at KRS 189A.100. That provision authorizes law enforcement agencies to "record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010," and establishes conditions for such recordings, for access thereto, and for uses thereof. The provision does not establish any requirements relating to the installation of cameras or documentary verification of same. The only reference to documentation of the videotape or film recording appears at KRS 189A.100(3), requiring a peace officer who makes the recording to "note on the uniform citation that a videotape has been made of the transaction." Simply put, KRS 189A.100 is the only legal authority 1 pertinent to Mr. Yarbrough's records request, and that provision is silent on the issue of documentary proof of camera installation.
We are not persuaded that the KSP Records Retention Schedule, upon which Mr. Yarbrough places great reliance, can be construed to require KSP to create and maintain "reliable and verifiable documentary proof" of camera installation. That schedule, which was approved by the Archives and Records Commission pursuant to KRS 171.420, prior to enactment of KRS 189A.100, contains no direct reference to camera installation and verifiable proof thereof. Instead, it contains three broadly described records series consisting of:Series No.Record Title and DescriptionRetain at AgencyDisposition00017Headquarters Radio Shop1DestroyTechnician's Daily Activity00018Technician's Activity Report1Destroy00019Headquarters Radio Shop Daily1DestroyActivity Reports
The records to which Mr. Yarbrough has been afforded access fall within the parameters of these broadly worded record series and appear to have been managed and maintained according to the applicable retention requirements.
Mr. Yarbrough does not deny that he has been afforded access to responsive records, but questions the degree of detail and "verifiability" those records contain. This is not, in our view, a question that arises under the Open Records Act, nor is it one that we are capable of resolving in an open records decision. Accord, 02-ORD-89 (recipient of public records questioned quality and value of the information those records contained and Attorney General declined to consider this issue as one incapable of resolution under the Open Records Act) . KSP has provided to him all existing records which it interprets as responsive to his request(s). In the past, KSP officials agreed to meet with him at the Madisonville Post to resolve any remaining records access issues, and have again extended an invitation to him to meet with them at the Post. The Open Records Act requires no more.
This decision represents the Attorney General's final resolution of the issue of Mr. Yarbrough's access to "maintenance and other records indicating installation of video cameras in all Post 2 cars," and we will not reconsider our decision. 40 KAR 1:030 Section 4. 2 If Mr. Yarbrough believes that sufficient evidence exists to establish willful concealment of public records, he may present this evidence to the appropriate prosecutorial authorities. KRS 61.991(2)(a). 96-ORD-185. However, the record on appeal is devoid of evidence that KSP concealed records, willfully or otherwise. Alternatively, Mr. Yarbrough or KSP may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). 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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Terry D. EdwardsGeneral CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightStaff AttorneyKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 We have located no administrative regulations addressing these procedures.
2 40 KAR 1:030 Section 4 provides:
The Attorney General shall not reconsider a decision rendered under the Open Records Law. . . . Parties dissatisfied with a decision may appeal the decision to circuit court as provided in KRS 61.880(5). . . .