Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Jeffersontown Police Department violated the Kentucky Open Records Act in denying James C. Puszczewicz's March 9, 2010, request for "copies of any photographs taken in regard to the May 19, 2009, motor vehicle accident and subsequent DUI investigation and arrest which is the subject of Jefferson County case number 09-T-034118" as well as "copies of any video taken by police cruisers that arrived on the accident scene. " By letter dated March 22, 2010, Heather Keller, Terminal Agency Coordinator/Clerk, denied Mr. Puszczewicz's request "for the in-car DUI video regarding Patricia Fuller" on the basis of KRS 189A.100, quoting subsection (2)(e) of that confidentiality provision, a copy of which Ms. Keller attached to her written response. 1 Because the mandatory language of KRS 189A.100(2)(e)3 expressly precludes law enforcement agencies from disclosing such videotape recordings except for "official purposes" identified at KRS 189A.100(2)(e)1.-3, none of which have been established here, the denial is affirmed. 2
In his March 30, 2010, letter of appeal, Mr. Puszczewicz argues that the agency's reliance on KRS 189A.100 is misplaced. Mr. Puszczewicz notes that his client "was not charged with any DUI offense or any other criminal offense. " Additionally, he asserts that "in addition to not being timely," the JPD failed to provide "any specific reason that release of the information would harm them or otherwise impair the criminal investigation/prosecution or any other law enforcement function in relation to this matter." 3 Citing 09-ORD-140, Mr. Puszczewicz argues that because the "criminal case has already been brought, is a matter of public record in the courthouse and they have the same interest as my client - proving the other driver was impaired while driving, " he is entitled to the record(s) to assist his client in proving "her case for negligence against the impaired driver. " Based upon the following, this office must respectfully disagree.
Upon receiving notification of Mr. Puszczewicz's appeal from this office, Fred E. Fischer, Jeffersontown City Attorney, responded on behalf of the JPD. Mr. Fischer explains that on May 19, 2009, the JPD "made a run to Hurstbourne Parkway and I64 exit 15 on Ramp [sic], in Jeffersontown, Ky., responding to an accident[.]" As part of the investigation that followed, "one of the drivers, Lisa Schneiter, was asked to perform field sobriety tests, which were videotaped; following her failure to perform the tests, as required, she was charged with DUI and arrested." Enclosed with Mr. Fischer's response are copies of the Uniform Citation and the Uniform Police Traffic Collision Report from that incident.
Conceding that Mr. Puszczewicz's client, Patricia Fuller, was not "charged with any DUI offense or any other criminal offense, " the JPD correctly argues "that is irrelevant to the substantive issues" presented in his appeal. Mr. Fischer confirms that "a videotape was made at the scene, " but clarifies that "it was of the other driver, Lisa Schneiter, who enjoys the protections of KRS 189A.100, and the requestor neither qualifies for, or ever suggests that he, or his client, have legal access pursuant to the specific 'official purposes' set forth in the statute." More importantly, Mr. Fischer continues, "subsection (g) makes any officer or employee '. . . utilizing or sharing' the video guilty of official misconduct in the first degree." Notwithstanding the acknowledged procedural deficiency, "which has been addressed and corrected for future reference," the JPD maintains that Mr. Puszczewicz is "not entitled to a copy of the video, the substantive issue of the request, as it is protected" by the "specific restrictions set forth in KRS 189A.100," which Ms. Keller properly cited in her March 22 response. With the exception of the noted procedural deficiencies, the Attorney General finds no error in the agency's disposition of Mr. Puszczewicz's request.
When called upon to render a decision involving statutory interpretation, the Attorney General is required "to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). This office also "must construe all words and phrases according to the common and approved uses of language" per KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 447, 480 (1983); See also Withers v. University of Kentucky, Ky. 939 S.W.2d 340, 345 (1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory language of KRS 189A.100(2)(e) unquestionably validates the agency's position.
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In other words, confidentiality provisions found in the Kentucky Revised Statutes are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Resolution of this matter, as indicated, turns on the mandatory language of KRS 189A.100, which, in relevant part, mandates:
(2) Law enforcement agencies may 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 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
. . .
(Emphasis added.)
Chapter 189A of the KRS deals exclusively with the criminal offense of driving under the influence. KRS 189A.100(2) authorizes law enforcement agencies to record field sobriety tests administered at the scene of an arrest "for a violation of KRS 189A.010," which prohibits driving under the influence of alcohol or any other substance or combination thereof "which impairs one's driving ability," or such tests administered at a police station, a jail, or any other "suitable facility." Under specified conditions, the prosecution or defense may introduce such a recording as evidence at trial. Recordings made under this authority can only be used for limited "official purposes," which are identified at (2)(e)1.-3. The recordings must otherwise be treated as a "confidential records," the unauthorized release of which is punishable as official misconduct in the first degree per KRS 189A.100(2)(g), as the JPD correctly argues.
In 93-ORD-133, this office affirmed the denial by the Kentucky State Police of a request for a videotape recording made at the time of a DUI arrest, because the requester's client had not been charged with DUI. Of particular significance on the facts presented, this office held as follows:
It is our understanding that [the requester's] client was not charged with DUI. Rather, it was her companion, who also appears on the videotape, who was so charged. Under the express terms of KRS 189A.100(2)(d) the entire videotape must be made available to [her companion] , or her companion's attorney, a reasonable time before her companion's trial for driving under the influence. Its release is otherwise strictly prohibited. We therefore do not believe that the [KSP] have the option of segregating that portion of the tape showing [the requester's client] at the time of her arrest, and releasing it to him. [KSP's] response was entirely consistent with the Open Records Act.
93-ORD-133, p. 4. Although this appeal clearly differs from 93-ORD-133 insofar as Mr. Puszczewicz's client was not a companion of the individual charged with DUI, the more critical fact is that a DUI arrest was, in fact, made and the field sobriety test was recorded as required for KRS 189A.100(2)(e) to apply.
As the JPD correctly argued, the fact Mr. Puszczewicz's client was not the individual charged with DUI is legally irrelevant, as the foregoing excerpt from 93-ORD-133 confirms. See 05-ORD-270 (affirming denial by KSP on basis of KRS 189A.100(2)(e)3 as the recordings, "once available to [requester] and his attorney in preparation for trial, are now excluded from inspection by operation of KRS 189A.100(2)(e)3." In the latter decision, the requester was the individual charged with DUI, but even he was no longer entitled to access the recording as the authorized "official purpose" which entitled him to access it (viewing "in preparation for trial") no longer existed. Resolution of both 93-ORD-133 and 05-ORD-270 "turned on the fact that a DUI arrest had been made and recordings of field sobriety tests had been taken." 09-ORD-140, p. 5. Conversely, KRS 189A.100(2)(e) was " facially inapplicable" in 09-ORD-140, the decision upon which Mr. Puszczewicz relied, as the record was "devoid of any such showing, a clear and absolute precondition to invocation of KRS 189A.100(2)(e)." Id. Because the JPD has made such a showing here, 09-ORD-140 is inapposite. Given the intent of the General Assembly, as evidenced by the "common and approved meaning" of the language found at KRS 189A.100(2)(e), this office must conclude that the JPD properly treated the videotape recording in dispute as confidential per KRS 189A.100(2)(e)3 because it was not requested for any of the "official purposes" identified at subsection (e)1-3.
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.
James C. PuszczewiczHeather KellerFred E. Fischer III
Footnotes
Footnotes
1 In failing to cite KRS 61.878(1)(l), pursuant to which KRS 189A.100(2)(e) is incorporated into the Open Records Act, the JPD violated the mandatory terms of KRS 61.880(1); likewise, the JPD violated KRS 61.880(1) in failing to issue a written response to Mr. Puszczewicz's March 9, 2010, request until March 19, 2010, (postmarked March 22), well beyond three business days after it was received. As the Attorney General has consistently recognized, 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." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
On appeal, the JPD concedes that it failed to issue a timely written response, and submits the affidavit of Ms. Keller "setting forth the timeline of letters and phone calls which created some confusion in her mind" as to whether she had complied with the procedural requirements of the Act. Given that both parties are clearly familiar with KRS 61.880(1), the JPD has acknowledged its procedural error, and Ms. Keller "has been counseled concerning" the requirement of strict compliance with the mandates of the Act, this office sees no reason to belabor the point with further discussion.
2 Although neither party addresses the issue on appeal, the original request asked for copies of any photographs documenting the incident as well. This office must assume that either no such photographs exist or the JPD was correctly arguing that any photographs would also be protected, albeit implicitly, as KRS 189A.100(2) authorizes law enforcement agencies to record "on film of videotape or by other visual and audible means. " (Emphasis added.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 In so arguing, Mr. Puszczewicz is presumably relying upon KRS 61.878(1)(h), albeit implicitly; however, the JPD did not cite this exception. Because the instant appeal is resolved on the basis of KRS 189A.100(2)(e), consideration of whether KRS 61.878(1)(h) could have been successfully invoked on the facts presented is unwarranted.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -