Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Louisville Metro Police Department's response to Philip J. Edwards' December 4, 2012, request for copies of "video and audio recordings involving" Officer Raymond Sutherland and Officer Chris Thurman, "during [their] shift[s] from 12/31/11 - 1/1/12" was procedurally deficient but substantively correct. The Department extended the deadline for production of the requested records without a detailed explanation of the cause for delay and, upon expiration of the deadline, further extended the deadline to "review and redact" responsive records in contravention of KRS 61.872(5). Nevertheless, the department properly relied on KRS 189A.100(2)(e)(3) in denying Mr. Edwards' request for copies of responsive video and audio recordings of "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."
In a December 10, 2012, response, the department agreed to provide Mr. Edwards with copies of the requested videos on or before December 31, 2012, explaining that additional time was needed for production of the records "[d]ue to the scope and volume of the request." On December 14, the department modified its position agreeing to release only "non-DUI related video" and indicating that the anticipated release date would be extended to January 18, 2013, to permit necessary redaction of personal information pursuant to KRS 61.878(1)(a). For the first time, the department invoked KRS 189A.100(2)(e), incorporated into the Open Records Act by KRS 61.878(1)(l), to support nondisclosure of videos of DUI stops. Having received no further communication from the department, Mr. Edwards initiated this appeal on February 5, 2013, questioning the delays in production of the videos and the department's "overbroad interpretation" of KRS 189A.100(2)(e).
In supplemental correspondence transmitted to this office on February 28, 2013, the department explained that forty-eight responsive videos were located only five of which involved DUI stops. The department agreed to make the video of the DUI stop involving Mr. Edwards' client available for Mr. Edwards' inspection and to provide him with copies of the non-DUI related videos. We find that the department violated KRS 61.872(5) by failing to provide a detailed explanation of the cause for delay in producing the requested records and in failing to afford Mr. Edwards timely access to those records, but that it properly relied on KRS 189A.100(2)(e) in denying him access to DUI related videos that did not involve his client.
Mr. Edwards submitted his open records request on December 4, 2012, and was still awaiting receipt of nonexempt records responsive to that request on February 5, 2013, when he initiated this appeal. Two months thus elapsed between the date of his request and the date of his appeal. Some two and one-half weeks after he submitted his appeal the department agreed to make arrangements for him to obtain copies of the non-DUI related videos and to view the otherwise exempt DUI related video involving his client. In this two and one-half month period, the department offered perfunctory explanations for the delays based on the "scope and volume" of the request and the necessity of redaction. 1 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Under the clear and simple terms of this statute, an agency response to an open records request that cannot be fulfilled in three business days must be accompanied by "a detailed explanation of the cause . . . for further delay" and a commitment to make the requested records available on the "earliest date." The department's response(s) satisfied neither of these requirements, and we find that the department violated KRS 61.872(5) in the disposition of Mr. Edwards' request.
The department did not, however, violate the Open Records Act in denying Mr. Edwards access to DUI related video that did not involve his client. KRS 189A.100(2) provides:
(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:
In construing this provision, the Attorney General has observed:
KRS 189A.100(2) authorizes law enforcement agencies to record field sobriety tests administered at the scene of an arrest, the police station, the jail, or other suitable facilities "for violation of KRS 189A.010," prohibiting driving while under the influence. If certain conditions are met, the prosecution or defense may introduce the videotape at trial. Thus, the videotape can only be used for official purposes and by the prosecutor and defense attorney 'in preparation for a trial" of a person charged with DUI. It must otherwise be treated as a confidential record the unauthorized release of which is punishable as official misconduct in the first degree. KRS 189A.100(2)(g). Accord, 93-ORD-133.
05-ORD-27, p. 5; see also 09-ORD-140 and 10-ORD-088. These open records decisions support the department's position that KRS 189A.100(2)(e) erects a barrier to disclosure of DUI related recordings. They are, in fact, "[p]ublic record[s] . . . the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). We agree with the department's interpretation of the provision and its decision to withhold DUI related videos that do not involve his client and to release non-DUI related videos as specified in Mr. Edwards' request.
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.
Distributed to:
Philip J. EdwardsSharon L. KingBrianda A. Rojas
Footnotes
Footnotes
1 The department acknowledged that the non-DUI related videos did not contain protected personal information and that no redactions were necessary.