23-ORD-171
July 11, 2023
In re: Sarah Teague/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) violated the Open
Records Act (“the Act”) when it failed to issue a response to a request to
inspect records within five business days of receipt. The Office cannot
resolve factual disputes about whether all records responsive to a
request have been provided.
Open Records Decision
On April 5, 2023, Sarah Teague (“Appellant”) submitted a request to KSP for
various VHS recordings and photographs from 1995 related to the investigation into
her daughter’s kidnapping. On April 18, 2023, KSP responded and provided a copy of
a responsive VHS tape it had converted into a digital file and placed on a USB drive.
KSP advised it was the same recording previously provided in response to an earlier
request the Appellant had submitted in 2022. KSP did not address the Appellant’s
request for photographs.
Correspondence between the Appellant and KSP ensued over the following
weeks. Primarily, the Appellant objected to KSP providing the video in digital form,
as opposed to copying it onto another VHS cassette tape. She also alleged KSP had
not provided all responsive records. This appeal followed.1
1
The Appellant previously attempted to appeal KSP’s disposition of her request, but she failed to
provide a copy of her April 5, 2023, request, resulting in her first appeal being dismissed for failure to
comply with KRS 61.880(2)(a). In response to that previous appeal, KSP argued not only that the
Appellant had failed to comply with KRS 61.880(2)(a), but also, that it had provided all records
responsive to the request.Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). A public agency may also delay access to responsive records if such
records are “in active use, storage, or not otherwise available.” KRS 61.872(5). A
public agency that invokes KRS 61.872(5) to delay access to responsive records must
also notify the requester of the earliest date on which the records will be available,
and provide a detailed explanation for the cause of the delay. Here, the KSP admits
it received the Appellant’s request on April 5, but did not issue its response until April
18, 2023. Accordingly, KSP violated the Act when it failed to issue a timely response.
On appeal, KSP claims to have provided all responsive records to the Appellant
and asserts that the appeal should be considered moot under 40 KAR 1:030 § 6. The
Appellant acknowledges KSP has provided additional records that it had not provided
in response to previous requests. The Appellant claims additional records must exist,
given KSP’s failure to adequately search for records in response to her previous
requests.2 However, KSP’s disposition of the Appellant’s previous requests are not
before the Office. Therefore, the Office cannot determine whether KSP conducted an
adequate search previously. Here, KSP has fully explained the methods of its search,
including its review of recordings logged into evidence that were stored apart from its
investigative files.3 This Office has previously stated it cannot resolve factual
disputes, such as competing claims about whether all responsive records have been
provided. See, e.g., 22-ORD-261; 22-ORD-010; 19-ORD-083 (stating the Office
cannot “resolve
the
factual
dispute
between
the
parties
regarding
the disparity between records which have been provided and those sought but not
provided”). Accordingly, the Office cannot find that KSP has failed to provide all
responsive records.
2
It is not clear if the Appellant still objects to KSP converting the VHS recordings to a digital file.
KSP says it no longer has the ability to copy VHS recordings and it can only convert VHS recordings
to digital file formats. Although KRS 61.874(2)(b) defines the “standard format” for paper records and
electronic records, it does not define the standard format of video recordings. Rather, KRS 61.874(1)
states, “If the applicant desires copies of public records other than written records, the custodian of
the records shall duplicate the records or permit the applicant to duplicate the records; however, the
custodian shall ensure that such duplication will not damage or alter the original records.” Here, KSP
has duplicated a non-written record in a manner that will not destroy the original. Therefore, the
Office cannot find that KSP violated the Act by duplicating the requested VHS recording in this way.
3
Specifically, KSP states that, once it began recording and saving video and audio records using
CDs, the CDs were capable of being stored with the relevant investigative file. Because of the size of
VHS cassette tapes, KSP did not store those tapes with their accompanying investigative files.A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#251
Distributed to:
Sarah Teague
Michelle Harrison
Stephanie Dawson