Fresh Tips: Copies of recordings unavailable under KORA, but audio and video can be accessed

Police body camControversy over police conduct in Ferguson, Missouri, and elsewhere has sparked interest in video recordings that show whether police acted lawfully. In an effort to hold police accountable, members of the public and the media in Kansas may be interested in obtaining copies of video, as well as audio recordings, made and possessed by law enforcement. Such recordings include video footage from police body and dash cameras and audio from 911 calls.

The recordings qualify as public records. However, government agencies are not obligated to copy them for those making requests. The Kansas Open Records Act (KORA) states that an agency “shall not be required to provide copies of radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices.”  K.S.A. 45-219(a).  KORA included this provision when enacted in 1984. Despite technological advancements since then, which facilitate copying and sharing of recordings, the provision remains in effect. Under the sole exception to the provision, officials must release copies of audio and video recordings only if they have been shown or played at a public meeting. Id.

Because an agency rightfully can refuse to make copies of recordings under K.S.A. 45-219(a), requests for copies are likely to be denied.

Even so, members of the public and the media should not be deterred. Those making requests still have a right of access to recordings as public records and a right to inspect them under the KORA. A requester may exercise these rights of access and inspection by watching video or listening to an audio recording in the possession of an agency. If the agency charges the requester a fee for “providing access” to the recordings, it must be a reasonable amount.  K.S.A. 45-219(c).

To expedite a request for access to an agency’s recording, members of the public and the media may make clear that they do not seek a copy but rather want to review it in person or obtain a transcript.

For example, a request for the contents of a recording of a 911 call in the possession of a law enforcement agency might look something like this:

I hereby submit this request under the Kansas Open Records Act for access to a 911 call, or a transcript of that call, made by [caller, if known] to the [county name/police department name] dispatch center on or about [date and time], concerning [reference to incident], in possession of the [County Name] Sheriff’s Department and/or [City Name] Police Department.

Likewise, a request for a body cam recording in the possession of a law enforcement might look something like this:

I hereby submit this request under the Kansas Open Records Act for access to any audio or video recording, or and any transcript thereof, made by any [County Name] Sheriff’s Department personnel in the course of responding to the 911 call from [caller, if known] on or about [date and time], until the time the [name of crime/event/arrest] occurred.

Thus, even though KORA does not require an agency to provide copies of audio and video recordings, members of the public and the media should keep in mind that they have a right of access and can see or hear them.

Ultimately, the Legislature ideally would amend KORA and authorize agencies to provide copies of recordings, given the ease with which agencies could share them using today’s technology.