Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Fayette Urban County Government properly relied on KRS 61.878(1)(a) and (h) in denying J. Robert Cowan access to "the Division of Fire & Emergency Services tape recording of extension 691 made on November 28, 1997, from 6:00 a.m. until 7:00 a.m." For the reasons which follow, we find that LFUCG's refusal to release the tape constitutes a violation of the Open Records Act.
LFUCG advances two arguments in support of its denial of Mr. Cowan's request. Its first argument is based on KRS 61.878(1)(a) which excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
LFUCG maintains that the privacy interests implicated by disclosure of the tape outweigh the countervailing public interest, explaining:
Despite his contradictory statements, Mr. Cowan contends that his request is for a block of calls, not for an individual call. In fact, his request is much more invasive in that it is for all calls made to or from a specific telephone extension during a one hour period. This extension (number 691) was used by a particular DFES Communications Officer (erroneously presumed to have been Mr. Cowan's client) for this entire period. During the specified time frame, this extension was used primarily for one telephone conversation of a personal nature which was interrupted by several 911 calls unrelated to the personal call. During this personal telephone call the two participants discussed a number of significant personal matters of a medical, familial and otherwise of a purely personal nature. This is precisely the type of information that the General Assembly intended to protect by exempting information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. It is difficult to speculate about the public interest that would mandate the disclosure of such information. The privacy exception to the Open Records Act was invoked in this instance not to avoid "personal embarrassment or humiliation" to the LFUCG but to the person participating in this telephone conversation.
It is LFUCG's position that recent cases construing the privacy exception support its denial of Mr. Cowan's request, and that open records decisions of this office relating to 911 dispatch logs and tapes are distinguishable because they involved blanket denials of those logs and tapes. With respect to Mr. Cowan's request, LFUCG argues, the denial "was based solely on the contents of the tape. "
LFUCG relies on KRS 61.878(1)(h) as the second basis for denying Mr. Cowan access to the tape. That exception excludes from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory 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 or administrative adjudication.
LFUCG explains:
The DFES has initiated disciplinary action against several members of the Division based upon the contents of the tape in question. One employee has appealed the disciplinary action against him with the LFUCG Civil Service Commission. The tape is to be introduced as evidence during this "prospective ? administrative adjudication" conducted before the Civil Service Commission. LFUCG asserts that the tape in question was compiled in the process of investigating the pending disciplinary action and KRS 61.878(1)(h) thus provides a valid basis for the denial of Mr. Cowan's request? Further, the premature release of this tape could be extremely detrimental to the prosecution of the LFUCG disciplinary actions; the tape and its contents are the basis for the disciplinary action. Unlike radio transmissions, these telephone conversations were not accessible to the general public. But for the occurrence of these disciplinary actions, no one would have any interest in these telephone conversations.
LFUCG distinguishes OAG 89-11, an open records decision holding that a law enforcement agency improperly withheld a tape recording of police radio transmissions related to the murder of a police officer, arguing that that opinion "was expressly limited to radio transmissions, not telephone calls" since "police radio traffic...may be heard by the general public over scanners."
We find neither of these arguments persuasive. We reject LFUCG's contention that KRS 61.878(1)(a) authorizes nondisclosure of the tape because the privacy interests of the participants in the personal conversation captured on the tape is superior to the "speculative" public interest in disclosure. It is the opinion of this office that disclosure of the tape would not constitute a clearly unwarranted invasion of personal privacy.
In determining whether a public agency has properly invoked the privacy exception, the courts have observed:
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Citation omitted.] As the Supreme Court noted, the circumstances of a given case will affect the balance.
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994) citing
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Continuing, the Zink court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the legislature clearly intended to grant any member of the public as much right to [sic] access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. .. . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. In those cases where there is a significant privacy interest in the information sought, and disclosure of the information will "reveal [] little or nothing about an agency's own conduct," the privacy interest will prevail. Zink at 829.
To facilitate our review of this appeal, LFUCG furnished this office with a copy of the disputed tape. Although we cannot reveal the specific content of the conversation recorded, we can describe it in general terms. It consists of a conversation of some duration between a Division of Fire & Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls. The conversation centers on general criticism of the Police Department's emergency dispatching unit, and specific criticism arising out of an earlier call. In the course of the conversation, the employees also discuss the recent holiday and a minor injury which one of them has sustained. In addition, they engage in jocose banter unrelated to their official duties. Their conversation is twice interrupted by official calls relating to the earlier call, and once by a separate 911 call.
We concur with LFUCG in its view that the employees' discussion contains information of a personal nature. Nevertheless, because these employees elected to air this information on a recorded telephone line which, as noted, is dedicated to public use for emergency and nonemergency 911 calls, they forfeited their privacy rights to a large extent. We attach no weight to the privacy interest of public employees who have engaged in misconduct of a sufficiently serious nature to warrant the imposition of disciplinary measures by the public agency. At page 4 of 97-ORD-121, this office observed:
Employee misconduct, confirmed by subsequent disciplinary action, and official reaction thereto are not accepted by society as details in which an individual has a reasonable expectation of privacy. Such matters are clearly related to public business, and thus cannot be cloaked in secrecy, though disclosure may cause inconvenience or embarrassment to public officials or others. KRS 61.871.
Contrary to LFUCG's position, we do not believe that "this is precisely the type of information that the General Assembly intended to protect...."
Conversely, we believe that there is a significant public interest in monitoring the performance of the Division of Fire and Emergency Services. As the Kentucky Supreme Court noted in Board of Examiners , above at 328:
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
The fundamental purpose of DFES, as we understand it, "is to ensure public safety and welfare by providing effective law enforcement and emergency services to persons who reside in [Fayette County] and who avail themselves of these services by using the '911' system." 94-ORD-133, p. 10. Disclosure of the disputed tape, in this instance, will reveal whether these public servants were serving the public and whether DFES is properly executing its function.
It is therefore our conclusion that the public's interest in disclosure of the tape substantially outweighs the nonexistent privacy interests of the employees in the content of their conversation. Disclosure of the tape will promote the public's interest in monitoring the conduct of DFES employees without intruding into those employees' personal privacy.
We also reject LFUCG's argument that KRS 61.878(1)(h) authorizes nondisclosure of the tape because it relates to an ongoing administrative adjudication, "was compiled in the process of investigating the pending disciplinary action, " and premature release "could be extremely detrimental to the prosecution of the ? [action]." While we agree with LFUCG that OAG 89-11 is factually limited to the issue of access to the tapes of police radio transmissions, we believe that the legal analysis set forth therein, and incorporated into numerous open records decisions subsequently issued by this office, compels disclosure of the tape. Resolution of this appeal, like resolution of the issues presented on appeal in OAG 89-11, turns on LFUCG's failure to make an adequate showing that it would be harmed by premature release of the tape.
In construing the agency's obligations relative to invocation of KRS 61.878(1)(h), the Attorney General has observed:
Denial of an open records request must be articulated in terms of the requirements of the statute. The agency thus has the burden of justifying the withholding of a record by reference to the appropriate exception, and by briefly explaining how it applies to the record withheld. KRS 61.880(1); KRS 61.880(2)(c); KRS 61.880(2). Denial of a request for public records under KRS 61.878(1)(h) must be sustained by proof that the public agency which received the request is a law enforcement agency or an agency involved in administrative adjudication, that the disputed records were compiled in the process of detecting and investigating statutory or regulatory violations, and that the disclosure of the records 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 or administrative adjudication.
97-ORD-121, p. 7. Similarly, in 95-ORD-95 we stated:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, p. 2, 3; see also 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof); 96-ORD-37 (Finance and Administration Cabinet failed to make requisite showing relative to invocation of KRS 61.878(1)(h) in denying access to records relating to licensees of Kentucky Board of Respiratory care); 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations);
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992) (University improperly relied on KRS 61.878(1)(h) in denying newspaper access to records compiled in response to NCAA investigation since it was not a law enforcement agency or an agency involved in administrative adjudication and therefore did not satisfy the first part of the three part test). The question of the propriety of agency invocation of KRS 61.878 (1)(h) has thus arisen in various contexts, but the analysis remains the same. "Consistent with the principle that free and open examination of public records is in the public interest, KRS 61.878(1)(h), like each of the eleven other exceptions, must be 'strictly construed' to afford the broadest possible public access. KRS 61.871." 97-ORD-129, p. 2.
In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1) (h) in denying a newspaper reporter's request for tapes of radio transmissions between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. We focused not on the fact that these transmissions went out over public airwaves, but on the fact that "there must ? be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action" ? [, and] only a bare claim is made in such regard." OAG 89-11, p. 4. There, the county police explained:
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 Attorney General concluded that this statement "does not describe any harm to the agency" if inspection were allowed. OAG 89-11, p. 5.
In the appeal before us, LFUCG asserts that the tape will be used as evidence in an employee appeal to the Civil Service Commission and that its contents are the basis for the disciplinary action. "Premature release of this tape, " LFUCG argues, "could be extremely detrimental to the prosecution of the ? disciplinary actions." This bare claim appears to be based on little more than supposition and conjecture. As in OAG 89-11, there is no description of the harm that will occur if inspection is allowed. Simply stated, we are unable to discern how prosecution of these disciplinary actions will be impeded, undermined, or otherwise jeopardized by disclosure of the tape. We therefore conclude that LFUCG improperly withheld the requested record on the basis of KRS 61.878(1)(h) because it failed to make the requisite showing of harm.
In sum, we hold that the Lexington-Fayette Urban County Government improperly withheld the tape recording of extension 691 made on November 28, 1997, from 6:00 a.m. to 7:00 a.m. Neither KRS 61.878(1)(a) nor KRS 61.878(1)(h) support its denial of Mr. Cowan's request. We therefore direct LFUCG to furnish him with a copy of the tape.
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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit
court, but should not be named as a party in that action or in any subsequent proceeding.