Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the responses of the Mt. Vernon Police Department and the Rockcastle 911 Center to the open records requests of Michael Sheliga violated the Open Records Act. It is the conclusion of this office the responses did not violate the Act.
By letter dated October 31, 2001, Mr. Sheliga made the following open records request to the Mt. Vernon Police Department:
Pursuant to the state open records law, Ky. Rev. Stat. Ann. Secs. 61.870 to 61.884, I write to request a copy of information you have about a call to your department concerning a person walking in the Fairground Hill section on Tuesday, October 30th, 2001, at approximately 6:45 PM.
This request includes any written information you possess, including but not limited to notes, writings, computer records, reports or annotations about the original complaint. It also includes any notes, writings, computer records annotations or reports in your possession made by the attending officers (B. Adams, B. Doan, two other unknown officers), the daily log (s) for this time period, tapes of the 911 call, and any other information residing in the same physical place as the above information.
If your agency does not maintain these public records, please let me know who does and include the proper custodian's name and address.
By letter dated November 2, 2001, William A. Mink, Chief of Police, responded to Mr. Sheliga's request, advising him:
You would certainly be entitled to this information unless this incident was under investigation by law enforcement officers in a criminal matter. This incident is not under investigation by this agency and there are no reports, notes or other information concerning this incident by any Officer of the Mt. Vernon Police Department. You were not arrested and no charges are filed in Court. I understand this was only a routine complaint checked by the Mt. Vernon Police Officers.
The only log that would have information related to this incident would be at the Rockcastle County 911 center. The center is located on the second floor of the courthouse. Dispatched calls to Police Officers are also recorded by the 911 center.
In a response to Mr. Sheliga's letter of appeal, Chief Mink reiterated that there were no records concerning the incident at the Mt. Vernon Police Department and that Mr. Sheliga had been advised that the 911 Center taped all calls for service to Police Officers and maintained a written log. In his response, he stated in part:
There were no citations, warrants, or documentation of any type concerning this incident with Mr. Sheliga written by any officer of the Mt. Vernon Police Department. Mt. Vernon Officers questioned Mr. Sheliga after receiving a complaint from a citizen that was alarmed by his actions on Tuesday, October 30, 2001.
Mr. Sheliga was not brought to the police station, but was questioned on the street concerning this incident. No video or audio tapes were made during the conversation with Mr. Sheliga.
On November 7, 2001, Mr. Sheliga submitted the same request, submitted to the Mt. Vernon Police Department, to Mt. Vernon 911 Services. Responding to this request on behalf of 911 Center, Jeffrey T. Burdette, Rockcastle County Attorney, partially denied Mr. Sheliga's request. In his response, Mr. Burdette advised:
We respectfully deny your request as to the tapes and records where identity of the caller, or callers, would be disclosed. I enclose the relevant log entry from 911 where the caller, or callers, seek assistance by reporting a male subject with a white shirt and black pants on Fairground Hill and West Main with a plastic bag with powder in it.
Please be advised that KRS 61.878(1)(a) exempts records containing information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy. Opinion of the Attorney General 90-117 agrees that disclosing caller's identity by providing a tape constituted an unwarranted invasion of personal privacy which was not outweighed by the public's right for information. Moreover, KRS 61.878(1)(i) exempts correspondence with private individuals, and this covers the present call and tape. The release of this information, in my opinion, would have a chilling effect on those who might otherwise seek assistance of law enforcement. See Zink vs. Commonwealth, Ky. App., 902 S.W.2d 825 (1994) and Bowling vs. Brandenburg (1999-CA-0742-MR). This is especially true in light of the recent events on September 11, 2001 in New York, as well as recent local events.
The call of which you speak in your request resulted in only a minimal intrusion upon you and has not yet led to an arrest. The right to public disclosure must give way to the legitimate privacy interests of those calling 911 to seek police assistance.
Finally, KRS 61.878(1)(h) exempts these records when the investigation is ongoing. The law enforcement agency has indicated that the investigation into activities reported relevant to the 911 call is not yet closed. However, this in no way means that upon completion of the investigation, that this office, or the 911 center, waives the aforementioned exemptions.
(Emphasis in original)
In a letter dated November 30, 2001, Mr. Sheliga asked for a copy of the "tape of when Rockcastle County 911 contacted the Mt. Vernon Police's Department or other law enforcement about this matter."
By letter dated December 3, 2001, Mr. Burdette, responding on behalf of Rockcastle 911, denied the request. In his response, he explained:
More specifically, the nature of the 911 recordings are intermingled with the caller (s) identifying information, and that along with other information, was of a personal nature, which public disclosure would constitute a clearly unwarranted invasion of personal privacy. There was no arrest made as a result of this call, or resultant dispatches, and therefore, only resulted in a minimum intrusion upon you. In this case, the public's right to know the contents of the 911 tape recording, and discussion of it's subject matter and identity of caller (s) by dispatch, must give way to the legitimate privacy interests of those seeking public assistance. (See case law and other authorities previously cited by letter of November 7, 2001).
We believe it is paramount to protect the identity of this caller (s), which includes the subject matter that may well tend to reveal their identity through discussion of their location, street address, or specifically described or detailed occurrence. This includes the call and dispatched information.
In his letter of appeal, Mr. Sheliga asked this office to determine whether the responses of the Mt. Vernon Police Department and Office of Rockcastle County Attorney, on behalf of Rockcastle County 911, violated the Open Records Act. For the reasons that follow, we conclude that the agencies did not violate the Act.
We address first the responses of the Mt. Vernon Police Department. The Department affirmatively advised Mr. Sheliga that it did not have the requested records and explained that this was only a routine complaint checked by the Department's officers. Moreover, the Department informed Mr. Sheliga that the agency that would have a log or the information that he was seeking related to the incident would be at the Rockcastle County 911 Center located on the second floor of the courthouse. The Department further advised that dispatched calls to police officers were recorded by the 911 Center.
This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Obviously, a public agency cannot afford a requester access to records that it does not have. 99-ORD-98. An agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department affirmatively advised Mr. Sheliga that it did not have the records he requested. Accordingly, we find no violation of the Open Records Act in this regard. 99-ORD-150.
Moreover, KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Mr. Sheliga was notified that the records and information that he was seeking related to the incident would be at the Rockcastle County 911 Center located on the second floor of the courthouse. Accordingly, we conclude that Department's responses were in compliance with KRS 61.872(4) and the Open Records Act.
We next address the Rockcastle 911 Center's denial of Mr. Sheliga's request for a copy of the 911 tape and records where the identity of the caller (s) would be disclosed. For the reasons that follow, we conclude that the Center properly denied the request by setting forth a sufficient basis for withholding access to copy of the 911 tape and records where the identity of the caller (s) would be disclosed.
In its responses, the Center, in part, denied Mr. Sheliga's request under KRS 61.878(1)(a), which authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
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.
In the instant case, the Center provided this office with a supplemental response to Mr. Sheliga's letter of appeal addressing the question at issue. In its response, the Center addressed the denial of the 911 tape and records that would reveal the identity of the caller (s). In support of the denial, the Center stated, in part:
First, this response will address Mr. Sheliga's claim that there has been a willful violation of the Open Records Act, which is clearly not the case. Responses to his requests have always been prompt and without delay, and in at least the first instance, mailed the same day. In fact a copy of the relevant portion of the 911 log was provided at his request.
?
It is apparent to the undersigned that Mr. Sheliga's request is to determine the identity of the caller, by any means available, and the denials are to protect the caller, and not in any way to prevent the discovery of agency information via records.
?
The records, that being the 911 recording and their contents, cannot be reasonably segregated. The voice could be identifiable. The location of the caller's residence can be ascertained, from information discussed in the tapes. Mr. Sheliga does not deny the contents of the log, which was provided, and in fact, admits the contents of it, that he was carrying "unpuffed" rice (versus white powder). Therefore, he admits to the caller's information given, and cannot therefore argue convincingly that his request for disclosure is anything except discovering the caller's identity. Even the lengthy appeal document contains references to the caller (s) and his arguments against them and their actions.
?
The release of the tapes may allow Mr. Sheliga to recognize a voice, even if certain names are not mentioned, and, the caller in this instance did not give a name in an apparent effort to remain anonymous . . . .
?
In addition, in [Zink v. Commonwealth] it was clearly stated that the releasing of 911 tapes seeking police assistance would have a chilling effect on those who might seek assistance because they would become subject to potential retaliation, harassment, or public ridicule.
In Bowling v. Brandenburg, 37 S.W.3d 785 (2000), the Kentucky Court of Appeals held that the Berea Police Department did not violate the Open Records Act in denying a request for a copy of a 911 tape, under authority of KRS 61.878(1)(a). In that case, the Court determined that the public's right to know the contents of the 911 tape must give way to the legitimate privacy interests of those calling 911 to seek police assistance. In reaching this result, the Court noted:
Kentucky courts apparently have never considered whether an individual is entitled, under the Open Records Act, to a recording of a 911 call in which he is mentioned. The General Assembly has expressed that the policy of the Open Records Act "is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. In Lexington-Fayette Urban County Government v. Lexington Herald Leader Co., Ky., 941 S.W.2d 469 (1997) and Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Court noted that the Open Records Act envisions a case-specific approach to determining whether access to records is appropriate by providing for de novo judicial review of agency actions, and requiring that the agency present proof to sustain its action. The Court further stated that "whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Board of Examiners, 826 S.W.2d at 328. . . .
In the instant case, the Center did not issue a blanket denial for a copy of the 911 tape. The Center indicated that the 911 recording and its contents could not be reasonably segregated, the voice could be identifiable, the caller's residence could be ascertained from information discussed in the tape, and the caller (s) did not give a name in an apparent effort to remain anonymous. Thus, we conclude, in this particular case, that the agency provided specific justification to support a determination that protection of the caller (s) privacy interests clearly outweighed the public's right to know how the public agencies were performing their duties. This is particularly so where Mr. Sheliga was provided with a copy of the relevant 911 log entry which could provide information as to the agencies' actions. Accordingly, we conclude the responses of the agencies to Mr. Sheliga's open records requests did not violate the Open Records Act.
Because the foregoing is dispositive of this appeal, we need not address other bases cited by the Center in support of its actions relative to Mr. Sheliga's request.
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.
Michael Sheliga180 W. Main StreetMt. Vernon, KY 40456
William A. MinkChief of PoliceMt. Vernon Police DepartmentP.O. Box 1465Mt. Vernon, KY 40456
Jeffrey T. BurdetteRockcastle County AttorneyP.O. Box 1250Mt. Vernon, KY 40456