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 Pulaski County Sheriff properly relied on KRS 61.878(1)(h) in denying Lexington Herald-Leader staff writer Ty Tagami's November 23, 1998, request for copies of "all 911 tape recorded conversations related to the November 15 fatal accident involving Jason Watts, Arthur Steinmetz and Christopher Block," and his December 1, 1998, request for the incident report relating to that accident. For the reasons that follow, we find that the Sheriff's reliance on the cited exception was only partially consistent with the Open Records Act. It is the opinion of this office that the Sheriff properly withheld the 911 tape on the basis of KRS 61.878(1)(h), but that the exception did not authorize him to withhold the accident (incident) report in its entirety.
In separate, but identical, responses dated November 24 and December 2, Pulaski County Sheriff Sam Catron advised Mr. Tagami that the records he had requested were "exempt according to KRS 61.878(1)(h)." Sheriff Catron did not elaborate, prompting Mr. Tagami to initiate this appeal. In subsequent correspondence directed to this office, Acting Commonwealth's Attorney Eddy Montgomery offered additional support for the Sheriff's position. He explained that "these requests relate to a November 15, 1998 fatal accident in which the two young men were killed," and that "the driver of the vehicle, Jason Watts, has been indicted by the Pulaski County Grand Jury on two Counts of Manslaughter, Second Degree and one Count of Wanton Endangerment, First Degree."
With respect to Mr. Tagami's request for the incident report, Mr. Montgomery explained:
This was denied under the provisions of KRS 61.878(1)(h). This document should not be provided under the above cited section and KRS 17.150(2) and various Attorney General's Opinion, including but not limited to OAG 91-91. There is no document entitled "incident report" in this case. However, in speaking with the representatives from The Lexington Herald-Leader they are in fact seeking the "Uniform Traffic Accident Report." This report contains a summary of names and addresses of witnesses, witness statements, including an eyewitness account of the wreck and a diagram of the crime scene. All of this is information that will be used at trial in the pending criminal prosecution. In a case involving a traffic fatality, where criminal charges are brought, the accident report is akin to an investigative report in other cases. In this case the Accident Report was prepared by an accident reconstructionist that works for the Pulaski County Sheriff's Office. The premature release of this information/evidence could harm or potentially undermine the prosecution of this case in violation of KRS 61.878(1)(h) and KRS 17.150(2). Public release of this information could also harm Mr. Watts right to a fair and impartial jury.
At this office's request, and pursuant to KRS 61.880(2)(c), Mr. Montgomery furnished this office with a copy of the traffic accident report to facilitate our review.
With respect to the 911 tapes, Mr. Montgomery reaffirmed Sheriff Catron's reliance on KRS 61.878(1)(h), and cited as additional support94-ORD-144. He also advanced the argument that the tapes could properly be withheld pursuant to KRS 61.878(1)(a). He explained that the 911 tape contains conversations:
that concern the death of two victims. There are radio conversations about the condition of one victim in particular. To release this information to the public would be a violation of the victim and his family's personal privacy. KRS 61.878(1)(a),96-ORD-115. There can be nothing more private than what was happening to an individual in their last moments of life. The Commonwealth Attorney's Office also has concerns about the release of this information under KRS 61.878(1)(h) because the 911 tape itself is potential evidence that might be played to the jury to establish the exact time of the wreck, the condition of the victims and the defendant at the crime scene. All of which can be important factors in proving a charge of Manslaughter where the driver of the vehicle had been drinking. The tape itself is a record that can and may be used in a prospective law enforcement action, i.e. the trial of Jason Watts. Public release of such information prior to a trial can hamper the ability of the Commonwealth and the defendant in getting a fair trial.
In support of this argument, Mr. Montgomery cited
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), asserting that "a defendant's constitutional right to a fair trial should outweigh the media and public curiosity to know every detail about an upcoming criminal matter."
The Uniform Police Traffic Accident Report
We find that the Pulaski County Sheriff erred in withholding the uniform traffic accident report in its entirety pursuant to KRS 61.878(1)(h) and KRS 17.150(2). It is our opinion that only those portions of the report which are investigative in nature, and are to be used in the prospective law enforcement action against Mr. Watts, may properly be withheld, and that the remainder of the report must be disclosed. By this we mean that the Sheriff may redact, or mask, the text under the "accident description" portion of the report, the estimated travel speed of the vehicle, the results of blood alcohol test performed on Mr. Watts, and the diagram of the accident scene (collectively referred to as the "redacted material"), but that he must release an otherwise unredacted copy of the accident report to Mr. Tagami.
Our decision is premised on some twenty years of open records decisions in which the Attorney General has recognized that "uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential and are open records under the open records law." OAG 89-76, p. 2, citing OAGs 76-478, 80-210, 83-53; see also ORDs 97-6, 97-18, 97-19, 98-187. 1 Such records are generally not treated as "investigative reports containing evidentiary matter which may be used in a prosecution, "and which qualify for exclusion, pursuant to KRS 61.878(1)(h), if their premature disclosure will harm the agency. We have, however, on a number of occasions recognized that an "accident report may contain confidential information, such as the names of informants, a peace officer's comments or suggestions concerning prosecution, or the identity of juveniles, and that such information should be redacted pursuant to KRS 61.878(4)." 2 OAG 91-131, p. 3; see also, OAG 89-76, p. 2 (holding that "the fact that some information contained in police accident reports may be exempted from public inspection does not relieve the public agency of providing the other information which is not exempted from public inspection" ). In the appeal before us, we find that the Pulaski County Sheriff has met his statutory burden of proof in sustaining his denial of the redacted material of the uniform police traffic accident report under KRS 61.878(1)(h) and KRS 17.150(2), but that the Sheriff has failed to offer sufficient justification, under these exceptions, for his decision to withhold the entire record. Accordingly, he must furnish Mr. Tagami with a copy of the traffic accident report except for the redacted material.
Sheriff Catron relies on KRS 61.878(1)(h) and KRS 17.150(2) in denying Mr. Tagami's request for the traffic accident report. KRS 61.878(1)(h) excludes from the Open Records Act:
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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
KRS 17.150(2) authorizes criminal justice agencies to withhold intelligence and investigative reports until prosecution is completed or a determination not to prosecute is made. However, subsection (3) of KRS 17.150 states that "when a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity ." (Emphasis added.) Both KRS 61.878(1)(h) and KRS 17.150(2) expressly prohibit the use of the exemptions "to delay or impede the exercise of rights [of inspection otherwise granted]." In other words, mere invocation of these exemptions, without explanation, will not sustain the agency's burden of proof.
Although Sheriff Catron offered little explanation for his decision to withhold the accident report, Mr. Montgomery, who is the acting Commonwealth's Attorney for Pulaski County, and who is therefore in a better position to assess the evidentiary value of the report for prosecutorial purposes, explained that it contains witness statements, an eyewitness account of the accident, and a diagram of the accident scene which "will be used at trial." He likened the accident report, in cases involving traffic fatalities, to the investigative report in other cases, asserting that "premature release of this information/evidence could harm or potentially undermine the prosecution of this case. . . ."
We find that the report is a record of a law enforcement agency that was compiled in the process of detecting and investigating a statutory violation and that it therefore satisfies the first and second of the three requirements found in KRS 61.878(1)(h). Further, we find that Mr. Montgomery has presented sufficient justification for the nondisclosure of the redacted material, the details of which are investigative in character, to our knowledge, have not yet been disclosed, and will be used in the upcoming criminal action. These portions of the report satisfy the third requirement of KRS 61.878(1)(h), namely, harm to the agency by premature release of information to be used in a prospective law enforcement action, and may properly be withheld until after prosecution is completed. The remainder of the report does not qualify for exclusion and must be disclosed. Disclosure of the redacted report will permit the public to monitor the conduct of the Pulaski County Sheriff's office in responding to and investigating the accident without compromising the Commonwealth's prosecution of Mr. Watts or imperiling his right to a fair trial. Consistent with these observations, Sheriff Catron should immediately furnish Mr. Tagami with a redacted copy of the uniform traffic accident report relating to the November 15, 1998, fatal accident involving Jason Watts, Arthur Steinmetz, and Christopher Block.
The 911 tape
We affirm Sheriff Catron's denial of Mr. Tagami's request for the 911 tape relating to the fatal traffic accident. Although we are not persuaded that it contains information of a sufficiently personal and private nature to warrant invocation of KRS 61.878(1)(a), we find, after reviewing the tape, that it contains information the premature disclosure of which could harm the law enforcement agencies in whose custody it resides. It therefore qualifies for exclusion under KRS 61.878(1)(h) until such time as prosecution is concluded.
In 94-ORD-133, this office engaged in a lengthy analysis of a 911 dispatch center's blanket policy of denying access to its dispatch log on the basis of either KRS 61.878(1)(a) or (h). There we held that a generic determination that certain categories of information are excluded from the application of the Open Records Law under these exceptions, or any other exception, does not satisfy the requirements of the law. Exclusion of particular entries on a dispatch log, we concluded, must instead be articulated in terms of the requirements of the statute such as KRS 61.878(1)(a) or (h). In 94-ORD-144, we extended this holding to audio tapes of 911 calls. Although we recognized that an agency might assign greater weight to the privacy interests of a caller whose voice appears on the tape, since his or her identity might be determined through voice identification and therefore cannot be protected, we again held that a policy of blanket denial of access to 911 tapes was improper. We concluded that "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." 94-ORD-144, p. 4. Shortly thereafter, the Attorney General expressly held that a city police department failed to articulate a sufficient legal basis for its denial of a request for the 911 tape for a one and one-half hour period on a specific date. 90-ORD-150. See also 98-ORD-31 (holding that Lexington Fayette Urban County Government improperly withheld tape containing conversation between Division of Fire and Emergency Services employee and another employee on a telephone line dedicated to public use for 911 emergency calls).
These decisions are distinguishable from the appeal before us in one significant respect. Here, the basis for denying access to the tape is articulated in terms of the requirements of KRS 61.878(1)(h) and the statutory burden of proof is met. Sheriff Catron originally invoked the exception, and Mr. Montgomery amplified on this position by explaining that the tape "is potential evidence that might be played to the jury to establish the exact time of the wreck, the condition of the victims and the defendant at the crime scene, "and that these are "important factors in proving a charge of manslaughter where the driver of the vehicle had been drinking." Accordingly, the disputed 911 tape is a record of a law enforcement agency compiled in the process of detecting and investigating a statutory violation the disclosure of which would harm the agency by premature release of information to be used in a prospective law enforcement action. We find that Sheriff Catron properly withheld the tape, and that he may continue to withhold it until after enforcement action is completed.
We are not persuaded that the tape contains information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. We therefore find that the Commonwealth's reliance on KRS 61.878(1)(a) was misplaced. Although in construing the Freedom of Information Act, 5 USC § 552, the federal courts have recognized a right of privacy for decedents and their families in tape recordings which reveal the decedent's thoughts and feelings at the moment of their deaths, this right has not been recognized in any case or opinion construing Kentucky's Open Records Act.
New York Times Co. v. National Aeronautics and Space Administration, 920 F.2d 1002 (D.C. Cir. 1990). Instead, this office has generally held that privacy rights end at death. See, e.g., OAG 81-149 and OAG 82-590. Moreover, our review of the tape does not confirm the presence of personal information the disclosure of which would constitute a clearly unwarranted invasion of privacy. This being said, we nevertheless conclude that the 911 tape was properly withheld on the basis of KRS 61.878(1)(h) and the reasons set forth above.
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.
Footnotes
Footnotes
1 At page 3 of 97-ORD-6, this office commented that:
The status of these opinions is somewhat clouded by the controversy surrounding the 1994 amendments to KRS 189.635. Those amendments, which made accident reports confidential except as to parties to the accident, their insurers, their attorneys, and news gathering organizations, were declared unconstitutional in Stephen Amelkin D.C. v Commissioner, Department of State Police , Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed , No. 96-5942 (6th Cir. July 2, 1996). The department [of Kentucky State Police] is currently enjoined from enforcing these amendments, and, pending resolution of the appeal in the Sixth Circuit, the authorities cited remain valid.
2 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.