Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in partially denying John Yarbrough's request for a copy of a recording of KSP radio transmissions over a five hour period from 11:00 p.m. to 4 a.m. on May 4, 2002. For the reasons that follow, we find that KSP failed to establish, by clear and convincing evidence, that production of the requested record is unreasonably burdensome and to articulate a basis for denying access to the record in terms of the requirements of the exemptions invoked.
By letter dated August 5, 2002, James M. Herrick, Legal Counsel, KSP, advised Mr. Yarbrough that the requested record was exempt from inspection, explaining:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(h) exempts records of law enforcement agencies if the disclosure would harm the agency by premature release of information to be used in a prospective law enforcement action. Kentucky State Police radio transmissions contain information of this nature. In addition, KRS 61.878(1)(i) and (j) exempt preliminary drafts, notes, and recommendations, and preliminary memoranda in which opinions are expressed. Kentucky State Police radio transmissions are analogous to these documents. Furthermore, KRS 61.878(1)(a) exempts records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. The Kentucky Court of Appeals held in Bowling v. Brandenburg that 911 telephone recordings are exempt from disclosure under the privacy provision; Kentucky State Police radio transmissions contain similar private information as to the identity of individuals, and are therefore exempt from inspection.
From this KSP response, Mr. Yarbrough initiated the instant open records appeal. In his letter, Mr. Yarbrough stated in part:
I requested and received radio transmission recordings from the Madisonville, City Police Department, but was refused this by Kentucky State Police. I believe this refusal to be in error. My ordeal would probably be covered by the recording from 11:20 P.M. to 1:30 A.M., but I hoped for any other references to my case, which should have been troubling to the group of officers at the roadblock, hence the five hour request. I understand certain recordings are private and must be redacted.
After receipt of Notification of the appeal and a copy of the letter of appeal, Mr. Herrick, by letter date August 22, 2002, requested an extension of time to respond to the letter of appeal, indicating, in part:
In preparing a response, it will be necessary to obtain some information from the Kentucky State Police post personnel regarding the records at issue in this request. The type of request made in this case is, as far as our records custodian can determine, a matter of first impression for this agency, and some additional time is needed to ascertain the exact nature of the records and the potential burden involved in production, and to obtain satisfactory evidence of the same.
By letter dated August 26, 2002, Mr. Herrick advised this office and Mr. Yarbrough:
In regard to the above-referenced Open Records matter, I am still in the process of obtaining information from the Kentucky State Police Post personnel about the burden involved in reviewing, copying, and redacting five (5) hours of radio transmissions. However, since Mr. Yarbrough seems to indicate in his letter of appeal that what he essentially wants is any segments that relate to him, I should point out that the Kentucky State Police would not have any objection to providing him with those segments. The burden arises from dealing with the radio traffic that does not relate to Mr. Yarbrough.
If Mr. Yarbrough is agreeable to our providing only the segments of radio traffic that relate to him over the five (5) hours requested, I believe this appeal can be resolved by agreement. If not, I would continue to request an extension of time for the purposes outlined in my letter of August 22, 2002.
By letter dated September 27, 2002, Mr. Herrick provided this office with a response addressing the burden that would be placed upon the agency in providing Mr. Yarbrough with a copy of a redacted tape of the five hours of radio transmission recordings he requested. In his response, Mr. Herrick advised:
Upon further review of this matter, the Kentucky State Police (KSP) believes, pursuant to KRS 61.872(6), that it would impose an unreasonable burden on the agency to provide Mr. Yarbrough with a redacted tape of the five (5) hours of radio transmission recordings he has requested. The recordings would have to be intensively reviewed by KSP post personnel in order to determine which particular communications might be exempt pursuant to KRS 61.878(1)(h) (records of law enforcement agencies if the disclosure would harm the agency by premature release of information to be used in prospective law enforcement action) ; 61.878(1)(i) (preliminary recommendations); and KRS 61.878(1)(a) (records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy).
According to Chief Dispatcher Bobby Carroll at KSP Post 2, the recordings are maintained in computerized form. Carroll has already spent at least 10 hours just to recover the recordings and determine the number of individual radio "bits, " having had to work with employees from the KSP Computer Technologies Branch to restore a corrupted file. He estimates conservatively that it would take at least another 12 hours to make diskettes, listen to the contents, and retrieve the specific information responsive to the request. It is my understanding that radio recordings would have to be separated from telephone recordings.
Once the relevant information was retrieved, Lt. Mark Mayes estimates it would take at least 8 hours to make the individual state troopers who made the transmissions review the radio conversations to identify the matters to which they related and make a determination as to whether the recorded material contained information to be used in a prospective law enforcement action whose premature release would be harmful. (In some cases, it would not be unreasonable to assume a prosecutor would also need to be involved in that determination.) The transmissions would then need to be reviewed by a supervisor, both to confirm that the premature release of the information would not be harmful and to determine whether the information contained any preliminary recommendations or any personal information subject to privacy concerns, which would need to be redacted.
Dispatcher Carroll reports that the five (5) hours of recordings contain six-hundred sixty-two (662) separate radio "bits. " While it is quite difficult to estimate time for a process that has not yet taken place, Dispatcher Carroll estimates that each redaction would average about five (5) minutes to make. If each radio "bit" required, on average, one (1) redaction, this would add 55 hours and 10 minutes to the total time. There would be then be the time to create a tape from the final redacted version, which could reasonably be estimated at five (5) hours. (Also significant to this analysis is the fact that the KSP Post 2 dispatch office is currently understaffed, with one position vacant and another dispatcher on extended sick leave, so that there is frequently only one (1) dispatcher on duty at a time, who must deal with incoming communications.)
Again, it in nearly impossible to predict the exact time needed to undertake such an analysis of a series of recorded communications. The KSP has no known precedent for such a request. However, it is clear that the process could easily require more than ninety-eight (98) man-hours (10 already spent + 12 + 8 + 8 + 55 + 5), even estimating conservatively. This is not including potential time to be spent by the KSP's Computer Technologies employees in restoring the corrupted file. Given this disposition between the interest in disclosure and the labor potentially involved, the KSP submits that the request for five (5) hours of radio transmissions imposes an unreasonable burden on the agency and can properly be denied under KRS 61.872(6).
Mr. Yarbrough has stated that he is not willing to limit his request to the radio transmissions relating to him. Accordingly, this appeal cannot be resolved by agreement.
We are asked to determine whether KSP's partial denial of Mr. Yarbrough's request for copy of a recording of KSP radio transmissions over a five hour period from 11:00 p.m. to 4 a.m. on May 4, 2002 violated the Open Records Act. For the reasons that follow, we conclude that KSP failed to prove by clear and convincing evidence that providing Mr. Yarbrough with a copy of the record, with any legitimate redactions, would place an unreasonable burden upon the agency or that the exemptions relied upon actually authorize nondisclosure of all or any portion of the record. KSP should provide Mr. Yarbrough with a copy of the recordings that relate to him, which it has agreed to do, and those other portions that would not be otherwise exempt under applicable exemptions codified at KRS 61.878(1)(a) through (l). In so holding, we remind KSP that "[s]ecret police activity without some overriding justification is repugnant to the American system of government," OAG 80-144, p. 1, and that "the public interest in police business [generally] outweighs any privacy interest of victims, offenders, or police personnel. " OAG 80-54, p. 3. These principles were established in early open records opinions of this office and have provided the basis for numerous decisions through the years. See, e.g., 96-ORD-115; 99-ORD-27; 00-ORD-162.
KRS 61.872(6), upon which KSP chiefly relies, provides in full:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In construing this provision, the Attorney General has observed:
[KRS 61.872(6)] is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:
OAG 77-151, p. 3. We have also recognized, however, that:
OAG 76-375, p. 4. In determining whether an open records request is unreasonably burdensome, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function.
96-ORD-155, p. 3,4.
This office has previously held that police radio transmission tapes and dispatch logs are, in general, open for public inspection. 98-ORD-104; 94-ORD-133; OAG 89-20; OAG 89-11. Reviewing the line of opinions supporting this view, in 98-ORD-104 we observed:
In OAG 89-11, this office held that the Jefferson County Police Department improperly denied access to a tape recording of police radio transmissions surrounding a criminal event. In reaching such result, we stated:
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)[h]) means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
Moreover, in OAG 89-11, we noted that even if there is reasonable disagreement as to whether the tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action or administrative adjudication." KRS 61.878(1)(h). In the instant appeal, no showing has been made of any harm which might occur if inspection of the radio logs and tapes is allowed.
In OAG 89-20, we held the City of Winchester improperly denied a request to inspect radio transmission logs generated by the Winchester Police Department, on the basis of what is now codified as KRS 61.878(1)(h). In so holding, we explained the nature of the logs as follows:
98-ORD-104, p. 4, 5 (emphasis added). We concluded that the Kentucky State Police improperly withheld disclosure of the requested police radio logs and tapes. Acknowledging that the records might be included in a police investigative file, we concluded that they were made collaterally to, and not as an integral part of an investigation and that there was no showing of harm under KRS 61.878(1)(h).
The major distinction between the radio transmission recordings involved in the decisions cited above and those involved in the instant appeal is that the recordings involved here are digital. We believe that decisions of this office recognizing the duty to disclose radio transmission or run tapes apply with equal force to both analog and digital recordings. The digital radio run tapes are the functional equivalent of "electronic recordings of general radio traffic of a police agency," which were deemed nonexempt in OAG 89-11 in the absence of a specific showing that they were compiled as an integral part of a specific detection or investigative process, or that the law enforcement agency would be harmed by premature disclosure. It is important to note that until recently, such transmissions could be monitored round the clock by members of the public who owned police scanners. The technology used in making the recordings has been modified, and one result of this modification has been to impede public monitoring by scanners. However, KSP cites, and we are aware of, no legislative initiative to extend blanket exemption to these tapes. Until the General Assembly acts to extend broad protection to records containing police radio transmissions, we are unwilling to approve a position that effectively deprives the public of any opportunity to access them by means of an open records request.
KSP also raises the argument that the tapes are protected from disclosure by operation of KRS 61.878(1)(i) and (j) as preliminary drafts, notes, and memorandum in which opinions are expressed, and by operation of KRS 61.878(1)(a), under the rule announced in
Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2000). Although KSP recites the language of these exemptions, it does not articulate the rationale for withholding the tapes in terms of the requirements of KRS 61.878(1)(i), (j), and (a). It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the particular records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154; 93-ORD-67. Nor do we believe that Bowling, above, can be construed to extend blanket protection to all radio or telephone communications to and from law enforcement agencies, or between law enforcement officials. Accordingly, we find that KSP failed to meet the statutory burden of proof relative to the invocation of these exemptions.
KSP's chief argument is premised upon KRS 61.872(6) and its position that production of the record would impose an unreasonable burden due to the complications associated with conversion from the digital medium to a medium comprehensible to the public. We state, at the outset, that the medium in which KSP has elected to store the record should not operate as a bar to public inspection if the record is otherwise nonexempt. The agency cannot, for example, factor the ten hours that it claims was required to restore the corrupted agency file into its calculations. Restoration of a corrupted agency file is an agency records management issue and not an open records issue. Additionally, KSP estimates that it would take at least 12 hours to transfer the 5 hours of tape onto diskettes. To the extent that this is largely a technology issue, and not a manpower issue, we find this argument unpersuasive.
KSP's estimate of the time required to provide Mr. Yarbrough with a redacted copy of the tapes seems to be based on the presumption that all or major portions of the record may be subject to redaction. The agency offers no explanation why it should presume that the record would contain transmissions subject to the cited exceptions. Based upon this presumption, KSP speculates that it would take individual state troopers eight hours to review the radio conversations, and another eight hours for secondary review by the troopers' supervisors, to identify those portions the disclosure of which would result in harm to prospective law enforcement action, or to determine whether the other cited exemptions apply. Accordingly, we must conclude that the estimate is unsupportable because it is based on a flawed presumption. By the same reasoning, we find that KSP's estimate that it would take 55 hours and 10 minutes for redaction of the six-hundred sixty-two (662) separate radio bits contained in the five hours of recordings (based on its assumption that each bit redaction would average five minutes) is largely unsupported.
Clearly, KSP has gone to some lengths to establish that production of digitally stored radio run transmissions in response to an open records request entails considerable effort. However, as noted above, "[e]very request to inspect public records causes some inconvenience to the staff of the public agency," OAG 77-151, p. 3. KSP offers no specific proof that production of the five hours of radio run transmissions here requested constitutes an "extreme and unreasonable demand" on its employees' time. OAG 76-375, p. 4. This being the case, we conclude that KSP's reliance on KRS 61.872(6), along with KRS 61.878(1)(h), (a), (i), and (j) was misplaced.
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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Diane H. SmithOfficial Custodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
James M. HerrickLegal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601