Request By:
Mr. Lawrence Trageser
Kenneth S. Jones, Esq.
Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Summary: Spencer County Attorney's office improperly failed to provide requested records of employee misconduct complaints and records relating to camera purchases. Failure to retain video recordings of meetings raised a records management issue.
Open Records Decision
The question presented in this appeal is whether the Office of the Spencer County Attorney violated the Open Records Act in the disposition of Lawrence Trageser's September 22, 2014, request for various types of records. For the reasons that follow, we find that the office improperly failed to provide some records, and additionally find evidence of failure to retain records according to schedule.
Mr. Trageser addressed his September 22 letter to "Spencer County Official Custodian of Records" and asked for "any and all records reflecting" the following:
1. The drug intervention meeting and 911 committee meeting, which met last Wednesday. A CD is requested of those meetings.
2. The invoices, receipts or purchase orders for the camera equipment, monitors and any other equipment purchased an used for the interior camera system, currently located within the Sheriff's Department office, to include the camera over Deputy Sharon Thomas's desk.
3. Any complaint letters received by Spencer County government or its representatives, relating to employee misconduct, inappropriate sexual acts or sexual harassment perpetrated by any Spencer County Recycling employees.
Treasure Bryant of the county attorney's office responded on September 25, 2014, and Mr. Trageser appealed to the Attorney General on January 11, 2015.
Since the county attorney's office has filed no response to the appeal, we shall consider Ms. Bryant's September 25 response to each requested item. With regard to the recordings of meetings requested in item 1, she stated:
The record you have requested no longer exists. Ms. Sweazy states that she attempted to get the video off of the recording system but it has since been recorded over.
We do not find a violation of the Open Records Act as such, since the recordings reportedly have been erased. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Mr. Trageser, however, raises a question relating to whether the records were properly destroyed. Although these issues do not bear directly on the Open Records Act, we address them because of the "essential relationship between the intent of [the Act]" and statutes relating to records management, recognized in KRS 61.8715.
Mr. Trageser invokes the Local Governments General Records Retention Schedule, record series L5364, "Surveillance Video/ Audio Recordings, " for the proposition that the recordings should have been retained for 30 days. Although we agree in principle, we believe the applicable record series is actually L4940, "Audio/Video Recordings of Official Meetings." The retention and disposition instructions for this series provide: "Destroy or re-use 30 days after minutes have been transcribed and approved, unless challenged. Note: If minutes are challenged, recordings should be retained until resolution."
If the meetings had only occurred "last Wednesday," September 17, 2014, then the video records must have been erased within eight days after they were made. This would necessarily be out of compliance with the records retention schedule. Accordingly, we refer this matter to the Department for Libraries and Archives to take whatever action it may find appropriate.
As to item 2 of the request (the invoices, receipts, and purchase orders), Ms. Bryant responded:
Per a recent Kentucky Attorney General's opinion, all requests for records from the Spencer County Sheriff's Department must be requested from the Spencer County Sheriff's Office.
Although the "opinion" was not specified in the response, Ms. Bryant appears to be referring to 14-ORD-110. That appeal is representative of a period when the government of Spencer County was attempting to require all open records requests to be directed to the county attorney's office, regardless of who was officially designated the custodian of records. 1
In 14-ORD-110, we found that the Spencer County Sheriff's Department had subverted the intent of the Open Records Act by requiring Mr. Trageser to resubmit his request to the Spencer County Attorney's Office when the posted rules and regulations of the Sheriff's Department designated the sheriff as official custodian of records of that department. We relied upon a previous holding in 14-ORD-030 invalidating a rule that directed open records applicants to submit requests to the county attorney while simultaneously identifying the county clerk as official custodian of records.
Under KRS 61.872, requests are to be handled by the official custodian of records. ( See 14-ORD-030.) That is exactly how Mr. Trageser addressed his request in this case, "Official Custodian of Records." He delivered his request to the county attorney's office in light of the continual insistence by Spencer County that all requests for records should be submitted to the county attorney. Mr. Trageser's request was then rejected precisely because he had followed that procedure.
Mr. Trageser alleges (and no argument has been made to the contrary) that invoices, receipts, and purchase orders for the sheriff's department are not in the possession of the sheriff's office at all, but rather are maintained by the Spencer County Judge/Executive. In other words, while the requested records relate to purchases for the Sheriff's Department, they are not records of the Sheriff's Department. Yet the county attorney's office redirected him to the sheriff's office, not based upon facts, but based upon a misreading of 14-ORD-110. In so doing, the Spencer County Attorney's Office subverted the intent of the Open Records Act, short of a denial of inspection, within the meaning of KRS 61.880(4).
Finally, in regard to Mr. Trageser's item 3, complaint letters received against Spencer County Recycling employees, Ms. Bryant replied:
Per the Spencer County Fiscal Court Administrative Code, Section 3.39(d)
Sexual Harassment Compl[ai]nt Procedure: All employees are responsible for helping to assure we avoid harassment. If you feel that you have experienced or witnessed harassment you are to notify your immediate supervisor. Reports are to be made as soon as practicable, preferably within 24 hours and preferably in writing. Oral reports however will also be taken in the case of unusually sensitive circumstances.
The Spencer County Sheriff's Office is to investigate all such complaints. To the fullest extent practicable, the County will keep complaints and the terms of their resolution confidential. If an investigation confirms that harassment has occurred, the County will take corrective action in accordance with the nature and extent of the offense.
This response misconstrues Mr. Trageser's request. It is unambiguously clear that Mr. Trageser was not seeking information on how to make a complaint against a Spencer County Recycling employee, but rather was requesting copies of complaints that had been received concerning Spencer County Recycling employees. The response subverts the intent of the Open Records Act short of a denial of inspection. KRS 61.880(4).
In conclusion, we find that the Spencer County Attorney's Office improperly responded to items 2 and 3 in Mr. Trageser's letter by misconstruing or misdirecting his requests. As to item 1, the agency did not violate the Open Records Act itself, but improperly destroyed video records before their scheduled date, for which reason we refer the matter to the Department for Libraries and Archives.
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 proceedings.
Jack Conway Attorney General James M. Herrick Assistant Attorney General # 33 Distributed to:
Mr. Lawrence Trageser Kenneth S. Jones, Esq.
Footnotes
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