Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
In re: Bob Hensley/Lexington-Fayette Urban County Government
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Bob Hensley, of WTVQ-TV, to the Lexington-Fayette Urban County Government on June 28, 1994. Mr. Hensley requested access to "tapes of 911 calls for June 3rd and 4th of 1994." On July 1, 1994, Ms. Theresa L. Holmes, Corporate Counsel for the Urban County Government, responded to Mr. Hensley's request. Relying on OAG 90-117 and KRS 61.878(1)(a) and (g), now codified and hereinafter referred to as KRS 61.878(1)(a) and (i), she advised him that tapes of 911 calls are excluded from public access.
Mr. Hensley challenges the Urban County Government's denial of his request. He asks:
[S]houldn't there be some outside oversight of the 911 system? Is it being used as designed? Is it being used for non-emergency calls? Are 911 personnel handling calls properly?
It is his position that the public's interest in disclosure is superior to the privacy rights of the callers. Acknowledging that many of the 911 calls "are of a sensitive nature," Mr. Hensley notes that fire and police reports can be equally invasive, and are nevertheless available to the public.
In a response dated July 18, 1994, Ms. Holmes asserts that the reason for Mr. Hensley's request, however important, is irrelevant. "The document is either subject to inspection or not." Moreover, she notes, individuals who call 911 do not necessarily become involved in any criminal investigation or rescue operation resulting from the call, and identifying them, by name or voice, "clearly violates their privacy rights." Finally, Ms. Holmes observes, there are other means of monitoring the efficacy of the 911 system, including inspection of police reports, review of complaints against 911 operators, and obtaining access to the actual 911 tape through the caller, who is entitled to a copy of his or her own call, unless otherwise exempt. In closing, Ms. Holmes cites two opinions of the Kentucky Supreme Court, Kentucky Board of Examiners of Psychologists v. The Courier Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), and Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), which reiterate "that the public interest is not synonymous with public curiosity."
We are asked to determine if the Lexington-Fayette Urban County Government properly relied on KRS 61.878(1)(a) and (i), and OAG 90-117, in denying Mr. Hensley's request. For the reasons set forth below, we conclude that although the Urban County Government appears to have set forth, in good faith, a statutorily based denial of the request, and to that extent complied with the Open Records Law, its policy of blanket exclusion of 911 tapes from public inspection is inconsistent with the law. Although disclosure of an audio tape of a 911 call raises unique privacy concerns, those concerns do not warrant such a policy, and denial of access to any portion of a tape must be articulated in terms of the requirements of the statute.
In 94-ORD-133, this office addressed the question of whether a 911 dispatch center properly relied on KRS 61.878(1)(a) and (i) in adopting a policy of blanket nondisclosure relative to names and other identifying information appearing on its dispatch log. There we concluded that a generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of the law. Exclusion of particular entries on a dispatch log must, instead, be articulated in terms of the requirements of the statute. In the absence of a particularized showing that a given notation was properly withheld, a dispatch center cannot exclude those entries. We also expressly overruled that portion of OAG 90-117 in which we held that audio tapes of 911 calls were exempt under KRS 61.878(1)(g), now (i), relating to correspondence with private individuals, concluding that that provision does not extend to communications by telephone. A copy of the decision is attached hereto, and incorporated by reference.
At page 13 of 94-ORD-133, we recognized that release of a written dispatch log cannot be equated with the release of an audio tape of "911" calls. In assessing the privacy interests implicated by a written log, we reasoned:
Individuals may utilize the service without identifying themselves, and their identities will be protected. Alternatively, they can request that their identities not be disclosed. The identities of these individuals could be protected upon a showing that they requested or could reasonably expect confidentiality.
In contrast, "[i]t is simply not feasible to protect the complainant's identity if a copy of the audio recording of [his or] her voice is released." OAG 90-117, p. 4. "Providing a copy of the tape or even providing an edited version with the complainant's name and address deleted, would not prevent the possibility that the complainant could be identified by listening to [his or] her voice." OAG 90-117, p. 4. For this reason, there is a heightened privacy interest in the disclosure of audio tapes.
While we believe that it is entirely appropriate for the Urban County Government to assign this privacy interest greater weight in analyzing the competing interests and determining whether it will release the contents of a given 911 call, we are not persuaded that the interest is, in every instance, superior to the public's interest in disclosure. Some 911 calls do not implicate clearly recognized personal privacy concerns, including accident and fire reports. Moreover, it is reasonable to assume that the 911 system may, on occasion, be used to register nonemergency complaints. Finally, not every report of criminal activity raises privacy concerns of sufficient weight that those concerns clearly outweigh the public's right of access. As we noted at p. 6 of 94-ORD-133:
Although we have recognized that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," and that it must on these occasions, "justify the refusal of inspection with specificity, " we have generally ruled that "records of police departments showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection. " (Citations omitted.)
A law enforcement agency "is the servant of the people and if a citizen wants the services of the [agency] to investigate a crime, he cannot expect that the matter will be kept secret." OAG 80-144, p.2 cited in 94-ORD-133, at p. 6.
It is therefore the decision of this office that the Lexington-Fayette Urban County Government improperly relied on KRS 61.878(1)(a) and (i) in issuing a blanket denial of Mr. Hensley's request for access to "tapes of 911 calls for June 3rd and 4th of 1994." Refusal of inspection of any portion of the tapes must be justified with specificity and with reference to the particular statutory exemption upon which the agency relies. The Urban County Government may comply with the inspection requirements of the Open Records Law by providing Mr. Hensley with an unedited copy of the tape, or, if particular portions are properly excludable, by providing particularized justification for its denial.
The Lexington-Fayette Urban County Government may challenge this decision by initiating action in the appropriate circuit court. 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.