Request By:
Debra DiamondChief John Porter
New Castle Police Department
P. O. Box 390
New Castle, KY 40050-0390Joseph S. Yates, PSC
New Castle City Attorney
P. O. Box 6
New Castle, KY 40050-0006
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Newcastle Police Department (NPD) violated the Open Records Act in denying the requests of Debra Diamond, of Court TV's "Hot Pursuit, " for a copy of a video tape made by a NPD officer during the pursuit and incident involving Matthew Mullins on July 15, 2006.
In her letter of appeal, dated November 5, 2007, Ms. Diamond stated that she had submitted requests on September 12, 2007, and October 4, 2007, and as of that date, she had received no response from the NPD.
After receipt of notification of the appeal, Chief John Porter, NPD provided this office with a copy of his November 9, 2007, response to Ms. Diamond, in which he advised:
Please be advised that the video tape made during the pursuit of Matthew Mullins has been destroyed pursuant to departmental policy. It is my understanding that the Mullins case was resolved in Henry Circuit Court on March 23, 2007. Thus I am no longer in possession of that video tape.
We begin by noting that the NPD violated KRS 61.880(1) in failing to respond to either of Ms. Diamond's open records requests in writing and in a timely fashion. That statute 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.
(Emphasis added.) The NPD failed to respond to either of Ms. Diamond's requests of September 12, 2007, and October 4, 2007, within three business days after their receipt. This was a violation of KRS 61.880(1).
Turning to the substantive issue in this appeal, we find that the NPD cannot be said to have violated the Open Records Act in failing to produce for inspection a record that no longer exists. NPD states that video tape is no longer available because it has been destroyed pursuant to departmental policy. Obviously, the NPD cannot furnish Ms. Diamond with a video tape which no longer exists. 96-ORD-41. Our decisions in open records disputes are generally limited to two questions: whether the public agency has in its possession the documents requested, and if it does, whether the document is subject to public inspection. The NPD's failure to produce a record that no longer exists did not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 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 KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems] ." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. KRS 61.8715.
The NPD has an obligation relative to proper records management and retention. The fact the requested video tape has been destroyed suggests the presence of a management of records issue. Records Series No. L5229 of the Local Records Retention Schedule entitled: Video/Audio Recordings (Patrol Cars) (These recordings document traffic stops, accident investigations and pursuits for DUI violations and any other reasons for stopping a vehicle). The Disposition Instructions of Record Series No. L5229 provide:
Retain all recorded DUI related incidents 14 months if there is no appeal or if it does not document the actual happening of an incident involving a motor vehicle or after a decision has been made not to prosecute. Destroy upon order from District Court. If the actual happening of an accident is recorded, retain 26 months if there is no appeal. Retain all other recordings for 30 days, then destroy or reuse.
(A copy of Records Series L5229 is enclosed.) In her request letter to the NPD, Ms. Diamond stated that "[a]fter crashing his vehicle, the tape showed Mr. Mullins running away." As noted above, Record Series No. L5229 provides if the actual happening of an accident is recorded, it should be retained for 26 months, if there is no appeal. If the tape actually recorded the occurrence of an accident on July 15, 2006, then it should have been retained for 26 months from that date, if there was no appeal. Thus, the City's departmental policy regarding records retention policy appears to be inconsistent with Records Series No. L5229 and presents a question for the Department for Libraries and Archives, the agency charged with oversight and enforcement of the provisions of Chapter 171. Therefore, a copy of this decision has been transmitted to the Department for review.
KRS 61.8715 provides:
[T]o 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 61.870, et seq., the Kentucky Open Records Act, KRS 171.410 to 171.740, relating to public records management, and KRS 61.940 to 61.959, relating to strategic planning for computerized information systems. ]
The General Assembly has thus recognized an "essential relationship" between the intent of the Open Records Act and statutes relating to proper records management and maintenance. KRS 61.8715. It is, however, for the Department for Libraries and Archives, and not the Attorney General, to assist the NPD determining whether it is fully discharging its duty to manage and preserve records containing "adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities." KRS 171.640. Accordingly, pursuant to KRS 61.8715, we have referred the matter to the Department for Libraries and Archives for review under KRS Chapter 171.
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.