Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Police Department violated the Open Records Act in denying two open records requests by Tammy Meeker and Justin Peterson for footage from a body camera. We find the Lexington Police Department did not violate the Open Records Act and properly relied on KRS 189A.100(2)(e) in withholding the requested footage.
Tammy Meeker 1 submitted an open records request to the Lexington Police Department on October 9, 2018, for "any and all body camera footage from the reporting officers" responding to a vehicle accident site. The Lexington Police Department denied her request for body camera footage on October 9, 2018, pursuant to 189A.100(2)(e) because the requested footage contained footage of field sobriety tests. On January 10, 2019, Justin S. Peterson submitted another open records request for body camera footage of the same incident and attached an affidavit stating he wished to use the footage for civil litigation purposes. In his affidavit, he stated the footage would be used "for an existing or potential court case or administrative proceeding or in consulting with insurance companies on matters related to insurance coverage of incidents that are depicted in the recording. " On January 11, 2019, the Lexington Police Department denied his request according to 189A.100(2)(e) and KRS 189A.100(2)(g). Kellie Collins initiated this appeal on May 2, 2019, and Lexington Fayette Urban County Government timely replied on behalf of the Lexington Police Department, again citing the same statute.
Pursuant to KRS 189A.100(2), law enforcement agencies have authority to record field sobriety tests administered at the scene of an arrest "for a violation of KRS 189A.010." KRS 189A.010 prohibits driving under the influence of alcohol or any other substance or combination thereof "which impairs one's driving ability." These recordings may be used only for limited "official purposes" identified at 189A.100(2)(e), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l) 2. KRS 189A.100(2)(e) provides:
(e) Recordings shall be used for official purposes only, which shall include:
The recordings must otherwise be treated as "confidential records." KRS 189A.100(2)(e). Unauthorized release of these records is punishable as official misconduct in the first degree per KRS 189A.100(2)(g), which is a Class A misdemeanor under KRS 522.020.
This office considered the issue in this appeal in 93-ORD-133 and 10-ORD-088 and held in both that footage depicting field sobriety tests are confidential according to KRS 189A.100(2)(e). Because the requested body camera footage contains field sobriety tests, the Lexington Police Department appropriately relied on KRS 189A.100(2)(e) in denying access to the requested records. No exception exists for using this type of footage in civil litigation or insurance disputes. See 14-ORD-168. The requested records may only be used for the "official purposes" listed in 189A.100(2)(e), which do "not include use in the defense of a civil action" or other type of litigation. See id. Accordingly, the Lexington Police Department properly relied on KRS 189A.100(2)(e) in withholding the body camera footage.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The open records request was initially sent by Tammy Meeker and Justin Peterson. Kellie Collins submitted the appeal. Tammy Meeker is a legal assistant and Justin Peterson and Kellie Collins are attorneys all at the same law firm, Golden Law Office. Golden Law Office represents two third parties and the three individuals here jointly represent those parties and submitted this request as part of ongoing civil litigation.
2 In failing to cite KRS 61.878(1)(l) ("Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly"), pursuant to which KRS 189A.100(2)(e) is incorporated into the Open Records Act, the Lexington Police Department procedurally violated the mandatory terms of KRS 61.880(1).