Request By:
Hon. N. Scott Lilly
First Assistant
Jefferson County Attorney
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
The Courier-Journal and Louisville Times Company, through its counsel, Kimberly Greene, has appealed, in part, your January 17, 1989 denial of Courier-Journal staff writer Kay Stewart's January 12, 1989 written request to Jefferson County Police Chief Bobby Crouch, for ". . . tapes of all telephone calls and radio transmissions between noon and 2 p.m. on January 10, 1989."
By its own terms, the appeal is directed to denial of access to tapes of radio transmissions, not telephone calls (Greene to Cowan, A.G., January 17, 1989). Accordingly, this Opinion addresses only access to the tapes of radio transmissions.
Police radio transmissions from the communications center to patrol cars, responses from the cars, and some car to car transmissions, are captured by a tape recorder (or recorders), on an around-the-clock basis, should the need arise to review police actions.
Early on the afternoon of January 10, 1989, the Jefferson County Police Department received a telephoned complaint about a man with a gun. Officers were dispatched by radio transmission to investigate. Officer Frank Pysher responded to the call, and, upon approaching a man carrying a rifle, was shot and killed.
A logging tape recorder, generally recording all transmissions on a given radio frequency assigned to the Jefferson County Police, captured radio transmissions related to the dispatches concerning the man with a gun, and subsequent transmissions related to Officer Pysher's death and the search for his assailant. The transmissions were interspersed with those about unrelated matters broadcast over the same frequency. The tape was not being made or compiled uniquely in relation to the events surrounding the murder of Officer Pysher.
On January 12, 1989, Courier-Journal staff writer Kay Stewart tendered a written request to Jefferson County Police Chief Bobby Crouch, for ". . . tapes of all telephone calls and radio transmissions between noon and 2 p.m. on January 10, 1989."
By letter of January 17, 1989, you denied Ms. Stewart's request, stating:
Because the subject tape has been segregated for investigative and evidentiary purposes in the criminal proceeding resulting from the murder of Officer Frank Pysher, it will not be produced for inspection because it is exempt pursuant to KRS 61.878(1)(f).
Your letter of denial pointed out that KRS 61.878(1)(f) exempts records of law enforcement agencies compiled in the process of investigating statutory violations, if premature release of information to be used in a criminal proceeding would harm the agency. You indicated further that:
The tape in question provides valuable information of an investigative and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect. Release of the tape at this time, in the opinion of the department, would be detrimental to the criminal action against the suspect.
The Courier-Journal contends, in substance, that because the radio transmissions went out over public airwaves, and were thus made known to persons who overheard the transmissions, release of them, as memorialized on recording tape, cannot now be considered premature within the meaning of KRS 61.878(1)(f).
In a follow-up letter dated January 18, 1989, you indicated, in substance, citing KRS 432.570, that police radio frequencies are not within the general public domain to be enjoyed in the same manner as commercial radio stations or citizen band radios.
OPINION OF THE ATTORNEY GENERAL
The Courier-Journal has appealed denial of access to a tape recording of police radio transmissions surrounding a criminal event. The recording was produced by a recorder associated with a radio receiver, monitoring, on an around-the-clock basis, all transmissions within receiving range on a given police radio frequency.
KRS 61.870(2) provides in part that:
Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
In view of the language KRS 61.870(2), it is clear that the tape recording involved here would be within the realm of a "public record" within the meaning of Kentucky's Open Records Act.
KRS 61.872 (1) provides in part:
All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884 . . . .
Among records exempted from disclosure in accordance with KRS 61.878(f) are:
Records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory . . . violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. . . . [Emphasis added.]
KRS 61.878(1)(f) is the only statutory provision that might be relied upon as a basis for denying inspection of the tape in question (and it was the only provision cited in denying inspection) . The language of that provision establishes two requirements (pertinent to the facts involved here) for denial. First the record must have been "compiled in the process of detecting and investigating statutory . . . violations." Second, assuming the first requirement is met, "will disclosure of the information harm the agency . . . by premature release of information to be used in a prospective law enforcement action. "
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)(f)) means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
The recording in question may have been made during the time the events in question were occurring, but it was made independently of, or collaterally to, the events involved. It was thus not ". . . compiled in the process of detecting and investigating statutory . . . violations," within the meaning of KRS 61.878(1)(f).
Even if there is reasonable disagreement as to whether the tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by ". . . premature release of information to be used in a prospective law enforcement action . . . ." Only a bare claim is made in such regard. There is no description of harm that might occur if inspection is allowed.
You indicate in your denial letter that the tape in question "provides valuable information of an investigative and evidentiary nature in establishing the time frame and the movement and actions of the suspect." This statement, however, does not describe any harm to the agency. These facts have already been made known to the public in substantial detail through news accounts that have already appeared. There is no reason to believe releasing refinements in such information, or a tape that might recount such facts, would constitute a harmful, premature, release of information, within the meaning of KRS 61.878(1)(f).
In view of our reasoning above, it is unnecessary to dwell at length upon what might might be termed the special status of a " portable radio set or apparatus capable of either receiving or transmitting" on frequencies assigned to police agencies, pursuant to KRS 432.570 [addressed in your follow-up letter of January 18, 1989, and Kimberly Greene's follow-up, January 20, 1989]. Suffice it to say, many people listen to police radio transmissions at their residences, activity tacitly approved by KRS 432.570(4)(c). That subsection, it might also be noted, exempts newspapers (sic) reporters from restrictions on possession of a radio receiver for police frequencies.
The Jefferson County Police Department appears to have set forth in good faith, a statutorily based denial of a request to inspect public records. The Department, through counsel, gave prompt written notice of denial, indicating the specific basis therefore, and served a copy of its denial on the attorney general. The Jefferson County Police department has, to such extent, complied with the terms of Kentucky's Open Records Act.
This office finds, however, that the tape recording in question must be made available for inspection for the reasons indicated.
Recognizing the relatively fragile character, and other considerations, concerning recording tape, the police department can take precautions to ensure the security and integrity of the original of the tape in question. It may comply with "inspection" requirements under the Open Records Act by providing an unexpurgated copy of the tape for review.
As required by statute, a copy of this opinion is being sent to the appealing party, Ms. Kimberly K. Greene, on behalf of the Courier-Journal and Louisville Times Co. Your agency, consistent with KRS 61.880(5), may appeal this opinion to the Jefferson Circuit Court.