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 Monticello-Wayne County 911 Communications Center violated the Open Records Act in denying Johnny J. Dishman's April 9, 2002 request for copies of "telephone conversations which transpired March 16, 2002 at 00:42 hours placed to the Monticello-Wayne County 911 Communications Center by . . . Greg Latham[,] telephone conversations which transpired at 00:44 hours . . . initiated by [Mr. Dishman in his] official capacity as 911 telecommunicator, and placed to the return number for . . . Greg Latham [, and] the administrative log entries concerning this call." For the reasons that follow, we find that the Center improperly denied Mr. Dishman's request.
In a response dated April 10, 2002, Monticello City Dispatcher Stella Pogue notified Mr. Dishman that City Attorney Gordon T. Germain had advised her "not to release tape . . . unwarranted invasion of personal privacy. " On April 11, Mr. Dishman initiated this appeal, prompting Mr. Germain to elaborate on the Center's position. He explained:
My information was that Greg Latham had called the 911 Dispatch Center on March 16, 2002; had been placed on hold and terminated the call by hanging up. Mr. Dishman then placed a call to Mr. Latham. Mr. Latham answered the telephone and during the conversation, took up a personal matter with Mr. Dishman.
. . .
The way I read KRS 61.878(1)(a), public records containing information on [sic] personal nature can be denied . . . Mr. Dishman does not need a tape to know what was said as he was a party to the conversation. [I]f Mr. Dishman was offended to the extent that he desired to file an action in this matter, he could get an order from the court of competent jurisdiction if any conversation is relevant. However, his intention in getting the recording of this matter, I believe, was only to use the same to play to the community and in my opinion, could very well constitute an unwarranted invasion of personal privacy, as the conversation was on a personal level with him and not as dispatcher.
In closing, Mr. Germain characterized the conversation between Mr. Latham and Mr. Dishman as "strictly personal."
Pursuant to KRS 61.880(1)(c), this office mailed a written request to Ms. Pogue for copies of the disputed records on April 16, 2002, and Ms. Pogue honored our request. Although we cannot disclose the specific content of the taped telephone conversations, we can describe them in general terms. The first call was placed by Mr. Latham to the Center and ended abruptly when Mr. Latham hung up. Shortly thereafter, Mr. Dishman placed a return call to Mr. Latham's number, which appeared on his caller i.d. screen. It does not appear that Mr. Dishman knew who he was calling, but after a brief conversation learned that it was Mr. Latham. The conversation that followed did not involve an emergency, but consisted in large part of light banter. It was not interrupted by any incoming emergency calls. The primary focus of the call was the Center's computer and related topics.
Having reviewed the tape, we cannot affirm the Center's position that it is protected from disclosure by KRS 61.878(1)(a). Although certain indiscreet remarks were made in the course of the conversation, those remarks do not rise to the level of "information of a personal nature." Because the remarks were communicated on a recorded telephone line dedicated to public use for emergency and nonemergency 911 calls, we conclude that their disclosure does not constitute "a clearly unwarranted invasion of personal privacy. " Having reviewed the administrative log entries relating to the calls, we reach the same conclusion and find that these too were improperly withheld.
Resolution of Mr. Dishman's appeal turns on this office's decision in 98-ORD-31, a copy of which is attached hereto and incorporated by reference. There, the requester sought access to "the [Lexington-Fayette Urban County Government's] Division of Fire and Emergency Services' tape recording of extension 691 made on November 28, 1997, from 6:00 a.m. until 7:00 a.m." The Attorney General rejected LFUCG's argument that the tape was protected from disclosure by KRS 61.878(1)(a). We engaged in an analysis of the courts' interpretation of the privacy exception, including their recognition that the question of access to public records:
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 of 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 v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994) citing Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). Thus, Mr. Dishman's purpose in requesting a copy of the tape has no bearing on the outcome of this appeal.
At page 6 of 98-ORD-31, we identified a "significant public interest in monitoring the performance" of an emergency dispatch center, observing:
[T]he Kentucky Supreme Court noted in Board of Examiners, above at 328:
The fundamental purpose of [an emergency dispatch center], as we understand it, "is to ensure public safety and welfare by providing effective law enforcement and emergency services to persons who reside in [the area served] 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 [the emergency dispatch center] is properly executing its function.
We concluded that "the public's interest in disclosure of the tape substantially outweigh[ed] the nonexistent privacy interests of the [participants] in the content of their conversation. " Id.
We find that the balance in this appeal also tips in favor of disclosure. As noted, the conversation that is recorded on the tape that is the subject of this appeal involves a dispatch center employee, who is coincidentally the requester, and an individual whose relationship to the Center is unclear, but who apparently had some familiarity with the Center's computer. Their conversation did not involve an emergency. Nor did it involve a "personal matter. " Instead, it involved the use and repair of public equipment and the participants' roles relative thereto. The participants "elected to air this information on a recorded telephone line which is dedicated to public use for emergency and nonemergency 911 calls, [and thereby] forfeited their privacy rights to a large extent." Because disclosure of the tape will promote the public's interest in monitoring the Monticello-Wayne County 911 Communication Center without intruding on a legitimately asserted privacy interest, we find that the Center erroneously withheld the tape of the calls and the administrative log entries relating thereto. See also, 99-ORD-131.
We are aware that since the cited open records decisions were issued, the Kentucky Court of Appeals has published a decision recognizing that disclosure of a 911 caller's identity may constitute a clearly unwarranted invasion of personal privacy where the caller fears retaliation from the individual about whom the 911 call was made. In Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2000), the court concluded that under these circumstances, "[r]eleasing the tapes of 911 calls seeking police assistance . . . would have a chilling effect on those who might otherwise seek assistance because they would become subject to . . . retaliation, harassment, or public ridicule. Bowling at 788. These circumstances do not exist in the appeal before us. Mr. Latham did not seek police or emergency assistance in the course of his conversation with Mr. Dishman, and could therefore have no legitimate concern about retaliation. No privacy interests were implicated that overrode the public's interest in disclosure. Mr. Dishman is a member of the public and enjoys the same right of access to the disputed records that the public enjoys. 1 Failure to disclose the records therefore constituted a violation of the Open Records Act.
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 proceedings.
Footnotes
Footnotes
1 As a public agency employee, Mr. Dishman enjoys a greater right of access to records relating to him than the public enjoys. See KRS 61.878(3). A taped conversation in which he engaged in his official capacity is unquestionably a record that relates to him.