23-ORD-025
February 2, 2023
In re: Joshua Powell/Lexington Police Department
Summary: The Lexington Police Department (“the Department”) did
not violate the Open Records Act (“the Act”) when it denied inspection
of a video recording of a field sobriety test because KRS 189A.100
requires the video to remain confidential under these facts.
Open Records Decision
On behalf of his client, Joshua Powell (“the Appellant”) submitted a request to
the Department to inspect all body-worn camera footage taken during the
Department’s response to a specific incident. The Appellant’s client is not the subject
of the recordings. However, the Appellant notified the Department that he intended
to use the recordings to impeach the person depicted in them if he testifies at his
client’s criminal trial, which is unrelated to the events depicted in the requested
recordings. In a timely response, the Department denied the Appellant’s request for
body-worn footage under KRS 189A.100 because the footage “captures a DUI
Investigation.” This appeal followed.1
KRS 189A.100 establishes the procedure officers are to use when
administering field sobriety tests to suspects during investigations of alleged driving
under the influence of alcohol. Officers are permitted to record the suspect while
administering these tests. KRS 189A.100(2)(a). However, such footage “shall be used
for official purposes only.” KRS 189A.100(2)(b)5. The statute provides only three
“official purposes” for which the footage may be used: (a) viewing “in court”; (b)
viewing “by the prosecution and defense in preparation for a trial”; and (c) viewing
1
The Appellant also requested emails between named individuals from “8/23/2022 to present.” The
Department provided responsive records and redacted portions of the emails under KRS 61.878(1)(a).
The Department’s redactions to the emails is not at issue in this appeal, as the Appellant objects only
to the Department’s denial of the body-worn footage.“for purposes of administrative reviews and official administrative proceedings.” Id.
Otherwise, the recordings shall be considered “confidential records.” Id.2 The Act
exempts from inspection any records that are confidential under state statute.
KRS 61.878(1)(l).
When interpreting statutes, Kentucky courts “presume that the General
Assembly intended for the statute to be construed as a whole, for all of its parts to
have meaning, and for it to harmonize with related statutes.” Shawnee Telecom Res.,
Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal citations omitted). Although
KRS 189A.100(2)(b)5 states that viewing the footage “by the prosecution and defense
in preparation for trial” is an official purpose for which the footage may be used, when
viewing the statute as a whole, it is clear that “defense” refers to the person arrested
on charges of driving under the influence, and “trial” means his or her criminal trial
regarding that charge. The statute does not allow some other defendant in an
unrelated criminal proceeding to use the video for his defense. KRS 189A.100(2)(b)1–
4 provide the procedures for admitting the recording into evidence, and it clearly
relates to the rights of the defendant depicted in the recording. For example, the
recording must be shown in full “unless the defendant waives the showing of any
portions not offered by the prosecution.” KRS 189A.100(2)(b)2. The right to waive the
showing of the full recording is held by the person actually depicted in the video and
charged with driving under the influence, and the recording would ordinarily be
“offered by the prosecution” during the trial on that charge. See also
KRS 189A.100(2)(b)4 (“The defendant or his counsel is afforded an opportunity to
view the entire recording a reasonable time before the trial in order to prepare an
adequate defense” (emphasis added)).
Although the Appellant here is defense counsel for a person charged with a
crime, he is not defense counsel for the person depicted in the recording. The
Appellant admitted that his intent is not to “prepare an adequate defense” for the
person charged with driving under the influence and who is the subject of the
recording. Rather, the Appellant seeks the recordings for purposes of potential
impeachment if the person depicted in the video testifies against his client in an
unrelated criminal case.3 The Appellant’s intended use of the video recordings does not
come within the exceptions to KRS 189A.100. Therefore, the Department did not violate
the Act when it denied inspection of body-worn camera footage depicting the pursuit,
stop, or administration of field sobriety tests to a person suspected of driving under the
influence.
2
The unauthorized release of such video footage is a misdemeanor criminal offense.
KRS 189A.100(2)(b)7.
3
This decision concerns only the question whether the Act permits access to the video recordings of
the field sobriety tests. The Attorney General expresses no opinion concerning whether the Appellant’s
client must be provided access to the video recordings under the Kentucky Rules of Criminal Procedure
relating to discovery or other law.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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#008
Distributed to:
Joshua Powell
Pamela J. Wade
Jason Hernandez