Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Sheriff's Office's denial of his February 22, 2015, request for "all video and audible records reflecting or documenting the serving of a search warrant and arrest warrant to Lawrence Trageser and his property located at 140 Elmer's Court, Taylorsville, Ky., 40071, on the date of October 10, 2012." By letter dated February 25, 2015, the Sheriff's Office notified Mr. Trageser that it has "no video or audit [sic] records in its possession of the incident that occurred October 10, 2012."
On appeal, Mr. Trageser questions the Sheriff's Office's inability to produce a video which he believes has a fixed retention of 10 years. This retention period is based on his characterization of the video as a crime scene photograph that falls within Series L4668 of the General Schedule for Local Governments. Although he does not indicate how he obtained it, Mr. Trageser furnished a copy of the video to this office as proof of its existence. The Sheriff's Office responds, in supplemental correspondence, that in attempting to locate the video:
Sgt. Robert Thomas who is the sheriff's office['s] assigned property room clerk was consulted and he advised that no video or audio recording of the search/arrest warrants served on October 10, 2012, on or at Lawrence Trageser property had ever been placed in the property room. After careful review of the case files no video or audio recording of the execution of the arrest or search warrants was found.
On February 25, 2015, Mr. Trageser was sent a letter advising him that the Spencer County Sheriff's Office has no video or audible records in its possession of the incident that occurred October 10, 2012.
The Spencer County Sheriff's Office did video the execution of the search/arrest warrants on Mr. Trageser and his property. The video must had been inadvertently released to Mr. Trageser when the property seized with the search warrant was returned to him. Mr. Trageser posted the video that he is seeking on his website September 30, 2014, and on YouTube under Watchdog 487 on October 31, 2014, (See Attach[ed] Copies). Mr. Trageser has stated in his sworn appeal that he already has the requested video and has provided a copy with the appeal.
While it is apparent that the Sheriff's Office cannot produce for inspection a recording that it cannot locate, its inability to locate the video suggests a failure in its records management program.
KRS 61.8715 recognizes "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records." The statute further recognizes 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 these statutes." Mr. Trageser characterizes the missing video as a crime scene photograph that, under Series L4668 of the Local Governments General Records Retention Schedule, must be retained for ten years. The Sheriff's Office responds that although it videotaped the execution of the search/arrest warrants on Mr. Trageser and his property, the videotape was not placed in the property room and could not be located in the "case files" when those files were "careful[ly] review[ed]." The Sheriff's Office concludes that the videotape "must have been inadvertently released to Mr. Trageser when the property seized with the search warrant was returned to him." Its inability to account for the ultimate disposition of the videotape is problematic under the statement of legislative findings codified at KRS 61.8715 and quoted above.
We disagree with Mr. Trageser's characterization of the videotape as a crime scene photograph subject to ten year retention under Series L4668. That records series applies to crime scene photographs taken at the site where a felony or misdemeanor has been committed. The Crime Scene Photograph File "may contain: Negative, photo investigation #, number of the negative, case #, date, name of photographer." This description does not apply to a video recording of the execution of a search warrant and an arrest warrant.
In our view, the records series most likely to encompass such recordings are L4662, Felony Investigation Case File, or L4663, Investigations other than Felonies file. 1 The Felony Investigation File, which has an eighty year retention, "may contain: Assignment log, complaint report, arrest report/citation, case synopsis report, coroner's report, autopsy report, cassette tape log, victim information, victim statement, witness list/information/statements, suspect information, suspect statements, investigative notes, field notes, evidence log/ reports, lab requests/results, photos, diagrams, search warrants, vehicle information, photo line-ups, neighborhood investigation, correspondence, police bulletins, news releases, lead sheet reports, criminal history data, order to expunge, subpoenas and citations." Records Series L4663 governs "Investigations other than Felonies Files," requiring a five year retention, and "may contain: Copy of the uniform offense report, uniform citation report, the investigative report, evidence, photos of crime scenes, photos of suspects, interviews, statements from victims/witnesses/suspects, audio and video tapes, arrest warrants, fingerprints, lab information, criminal history information, correspondence, subpoenas, order to expunge, citations, pleas, sentences and prosecution data." Because the incident recorded on the videotape occurred less than three years ago, it should still reside in the applicable case file. The Sheriff's Office's inability to account for it suggests a failure in its records management program.
The Sheriff's Office states that "the video must have been inadvertently released to Mr. Trageser when the property seized with the search warrant was returned to him." If so, this disposition did not comport with proper records management practices or the requirements found in the applicable records series. Mr. Trageser does not indicate how he obtained the videotape. He did not obtain it through a previous open records request. See 15-ORD-023 (recognizing that duplicative open records requests for the same records need not be honored).
The fact that he already has a copy does not relieve the Sheriff's Office of its duties under the Open Records Act. As we recently observed:
The Attorney General has long recognized that "this rationale does not support nondisclosure and is not a legally recognized basis for denying an open records request." 99-ORD-121, p. 10. In 00-ORD-16, this office determined that an agency erroneously withheld records already in the possession of the requester, reasoning that "it is only through full disclosure of . . . records documenting [the requester's and the agency's] written exchange can he satisfy himself that the record is complete." More recently, we rejected the argument advanced by a public agency that "the fact that [the requester] obtained a copy of [the record sought from a source other than the agency], does not relieve the [agency] of its duty to provide him with a copy of any of those records also in the possession of the agency." 09-ORD-199, p. 3.
15-ORD-068, p. 5.
Under the well-established principle that an agency cannot produce a record that it cannot locate, we find no violation of the Open Records Act. Nevertheless, the Sheriff's Office's response to Mr. Trageser's request suggests that it failed to adequately discharge its records management duties under Chapter 171.410 to 171.740 in relation to the video recording Mr. Trageser requested.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 As noted, the video recording was not treated as evidence and placed in the property room. Evidence is not a scheduled public record, although Series L4671 governs the Property/Evidence Record File. That file is described as a "complete inventory of property and evidence seized during the investigation of a case, whether a misdemeanor or a felony," and requires retention for 3 years after final disposition of the property/evidence. It does not apply to the video at issue here.