Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington Fayette Urban County Government properly denied WLEX-TV reporter Leigh Searcy's April 27, 2004, request for the record containing "[a] call to the Lexington Police 911 Center concerning a student with a medical problem on a school bus on April 21, 2004 at around 3:30 p.m." For the reasons that follow, we find that although it advanced a good faith argument in support of its position, LFUCG violated the Open Records Act in denying WLEX-TV's request.
By letter dated May 4, 2004, Officer Aaron Kidd, Communications Unit Assistant in LFUCG's Department of Public Safety, denied the request "for 911 call information" advising WLEX-TV's Mike Taylor:
The following information has been redacted [name of person who made the call], [telephone number from where the call was made], [address from where the call was made], and [the responder to the call, i.e., Police/Fire/Ambulance].
Officer Kidd relied on KRS 65.752(4), prohibiting disclosure of Automatic Location Identification [ALI] data by a Public Safety Answering Point [PSAP] employee in areas where enhanced 911 service has been implemented. He maintained that his provision is incorporated into the Open Records Act by KRS 61.878(1)(l), extending protection to records or information made confidential by enactment of the General Assembly. In addition, he relied on 02-ORD-5 for the proposition 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." Finally, Officer Kidd referenced KRS 61.878(1)(h) "concerning Law Enforcement Records . . . [and] on-going investigation." On June 29, 2004, WLEX-TV initiated this appeal through Mr. Taylor, challenging the "blanket denial of the release of all 911 tapes based on the privacy of the caller. "
In supplemental correspondence directed to this office following commencement of the appeal, LFUCG Corporate Counsel Michael R. Sanner elaborated on the agency's position. He indicated that when Officer Kidd originally responded to WLEX-TV's request, he believed that police were not dispatched to the scene because it involved a medical emergency and that therefore no data was entered into the computer and no summary of the call was available. "Since this appeal occurred," Mr. Sanner continued, "research has shown that a police dispatch was sent to the scene," a summary of the 911 call was available, and a copy of the summary would be provided to Mr. Taylor "with the personal identifying data redacted. " He maintained:
The LFUCG Division of Police policy of providing a summary of a 911 call and not the 911 tapes themselves is on point with 02-ORD-5.
The LFUCG Division of Police policy adopted pursuant to KRS 67.752(4), 02-ORD-5, KRS 61.878(1)(a), Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), and Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2000), is to provide redacted summaries of the 911 calls when answering requests for 911 tapes and to deny the request for the 911 tapes themselves pursuant to the privacy exemption stated in the above-referenced statutes and cases.
As stated in Zink v. Commonwealth, Bowling v. Brandenburg, and 02-ORD-5, releasing of 911 tapes seeking police assistance would have chilling effect on those who might seek assistance because they have become subject to potential retaliation, harassment or public ridicule. In this age of technology, voice identification is easier by today's technology. Voice identification on tape is made easier because existing equipment, especially in this case when the caller was a juvenile. To release 911 tapes would not further serve the public interest, especially when a redacted summary of the call has been provided.
It was LFUCG's position that the privacy interest in 911 tapes outweighs the public interest in inspecting the tapes themselves, "especially when the requesters are provided redacted summaries of the call[s] . . . ."
To facilitate our review of the issue on appeal, on July 1, 2004, the Attorney General requested a copy of the disputed 911 tape pursuant to KRS 61.880(2)(c). Additionally, we asked that LFUCG advise us whether it is the agency's view that KRS 65.752(4) establishes a blanket prohibition on disclosure of 911 recordings. In a response dated July 7, 2004, Mr. Sanner indicated that the tape of the April 21, 2004, 911 call was destroyed "on or about June 21, 2004, per [LFUCG's] regular [60 day] retention schedule," and that LFUCG could not provide the Attorney General with a copy of the tape that was "destroyed in the regular course of business before [the agency] became aware of this appeal." In response to the question posed, he observed:
It is the LFUCG's position that KRS 65.752(4) does not authorize a blanket denial of requests for 911 recordings. The LFUCG does not issue blanket denials of requests for 911 recordings. The LFUCG's Division of Police policy is adopted from the Attorney General's opinion in 02-ORD-05 which supports summaries of the 911 calls being given to requestors, once personal identifying information has been redacted. The Division of Police has followed the Attorney General's opinion and the statutory and case law as cited in its July 6, 2004 response. Voice identification technology for all callers would have a chilling effect on the 911 system, and therefore we deny access to the tapes when a written summary of the call is provided for inspection.
In sum, Mr. Sanner advised, LFUCG believes that "KRS 65.750(3) allows redaction of personal identifying data such as name, address, and phone number," and that this provision operating in tandem with KRS 61.878(1)(a), as construed in Zink, Bowling, and 02-ORD-05 support the policy of protecting caller's privacy by nondisclosure of the tapes themselves and disclosure of "a written summary of a call . . ." instead.
While we agree that LFUCG may present proof, on a case-specific basis, to sustain its denial of a request for a particular 911 recording, the question of "whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) cited in Bowling at 787. The proof presented by LFUCG, in the instant appeal, does not sustain its denial of WLEX-TV's request.
We address first the scope of the protection for private information afforded by KRS 65.752(4) in areas operating under enhanced 911 emergency service. That statute provides:
In areas where enhanced 911 service has been implemented, an employee of a [Public Safety Answering Point or PSAP] shall not retrieve or disclose [Automatic Location Identification or ALI] information except in response to a 911 call or for the purpose of maintaining the ALI database, unless ordered by a court of competent jurisdiction.
PSAP is defined at KRS 65.750(8) as "a communications facility that is assigned the responsibility to receive 911 calls originating in a given area and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public safety agencies[.]" ALI is defined at KRS 65.750(3) as "a feature by which the name and address associated with the calling party's telephone number is made available to a PSAP[.]" The prohibition on disclosure is restricted, by its express terms, to ALI information, meaning the name and address associated with the calling party's telephone number appearing as an automatic display on an ALI computer screen. It does not extend to the underlying recording of the incoming 911 call. Accordingly, we find that LFUCG's Division of Public Safety, operating as a PSAP for the purpose of receiving 911 calls and dispatching public safety services as appropriate, is not foreclosed from releasing recordings of 911 calls under the narrow prohibition on disclosure of ALI information codified at KRS 65.752(4).
Whether LFUCG may withhold the underlying 911 recordings pursuant to KRS 61.878(1)(a) is a closer question. That exception authorizes the nondisclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]" Based on the authorities cited by LFUCG, we find that KRS 61.878(1)(a) may only be properly invoked where the facts of a specific case warrant invocation, and not as a matter of policy, and that the facts before us do not support the denial of WLEX-TV's request.
In Bowling v. Brandenburg, above, the Kentucky Court of Appeals determined that the Berea Police Department properly invoked KRS 61.878(1)(a) to deny a request for a 911 recording submitted by a requester who had allegedly threatened to kill his wife and other family members, prompting one of the family members to place the requested 911 call. Applying the comparative weighing of antagonistic interests analysis established by the Kentucky Supreme Court in Board of Examiners, above, the court reasoned:
Zink v. Commonwealth, . . . following the Board of Examiners standard, stated that upon a finding that the sought-after information was of a personal nature, the analysis proceeds to a determination of whether public disclosure constitutes 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 is underlying policy of openness for the public good." Zink, 902 S.W.2d at 828. The competing interests here are the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies. [Footnote omitted.] Releasing the tapes of 911 calls seeking police assistance, particularly in instances of domestic violence, would have a chilling effect on those who might otherwise seek assistance because they would become subject to, as the trial judge in this case noted, retaliation, harassment, or public ridicule.
Ultimately, the court concluded, " In this case, the public's right to know the contents of the 911 tape recording must give way to the legitimate privacy interests of those calling 911 to seek police assistance." Bowling at 788 (emphasis added). The court took great pains to limit its holding to the facts "in this case," and to emphasize that "the Open Records Act envisions a case-specific approach to determining whether access to records is appropriate . . . ." Id. at 787.
The decision of Court of Appeals in Bowling turned, in large part, on the context of domestic violence out of which it arose, and the likelihood that in that context the caller would be subject to retaliation, harassment, or public ridicule. Neither of these factors is present in the instant appeal. Assuming arguendo that the caller's identity could be determined through voice identification technology, he need not be concerned with the potential for retaliation, harassment, or public ridicule. His were the actions of a quick-thinking youth who courageously responded to a serious medical emergency, and are more likely to result in accolades than insults. Accordingly, his privacy interest is reduced. Conversely, the public's interest in the actions of the bus driver, as a public servant discharging his or her public function, the 911 operator, as a public servant discharging his or her public function, and the responding police officers, as public servants discharging their public function, which are captured on the 911 recording, are significant indeed. The written summary which LFUCG belatedly offers as an alternative to the actual tape only dimly reflect what transpired in the course of the 911 call and is subject to editing. While the summary is the preferred alternative to total nondisclosure, in cases where a heightened privacy interest outweighs the public's interest in disclosure, it is not an adequate substitute for the actual tape in the case on appeal. In this case, the public's right to know the contents of the 911 tape recording outweighs the minimal privacy interest of the student who placed the call to obtain emergency assistance. We therefore find that LFUCG improperly withheld the tape.
We reject LFUCG's argument that our decision in 02-ORD-05 supports a policy of releasing summaries of 911 recordings in lieu of the recordings themselves. At page 6 of that decision, the Attorney General observed:
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.
02-ORD-05, p. 6 (emphasis added). As in Bowling v. Brandenburg, we limited our holding to "this particular case . . . ." Compare 98-ORD-31 (rejecting LFUCG's argument that taped recording of 911 employee's personal conversation with another individual on a line dedicated to 911 usage was protected by privacy exception); 02-ORD-092 (rejecting similar argument advanced by Monticello-Wayne County 911 Communications Center); see also 99-ORD-131 (holding that blanket denial of access to 911 tapes violated Open Records Act) . We find no support in 02-ORD-05 for the proposition that public agencies discharge their obligations under the Open Records Act, in all cases, by releasing written summaries of 911 calls in lieu of the recordings of the 911 calls themselves.
We are obligated to note that the requested record was apparently destroyed in the regular course of business after WLEX-TV submitted its open records request but before WLEX-TV initiated this open records appeal. Unfortunately, the record is no longer available for inspection. This is the second occasion in the past six months in which disputed public records have been prematurely destroyed at the expense of public access. In 04-ORD-108, the requester sought access to, inter alia, emails relating to a pay equity study conducted by LFUCG, only to be advised, some three and one-half months later and in response to the Attorney General's KRS 61.880(2)(c) request for same, that "after a reasonable search was conducted, [no letters or emails] were found responsive to her request." 04-ORD-108, p. 5. We held that LFUCG erred in failing to promptly notify the requester that its search for responsive letters and emails yielded no results, observing:
The Attorney General has consistently recognized that an agency's inability to produce records due to their nonexistence is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms. 01-ORD-38, p. 9; 01-ORD-59, p. 5; 01-ORD-220, p. 6; 02-ORD-144, p. 3. While it is obvious that an agency cannot produce that which it does not have or which does not exist, a written response that does not clearly so state is deficient. OAG 86-38; OAG 91-101; 96-ORD-164; 97-ORD-116. Assuming LFUCG conducted an unproductive search upon receipt of [the] request, we question why the agency invoked KRS 61.878(1)(j) to deny access to nonexistent records. If it did not conduct a search until pressed by this office for copies of the disputed records, per KRS 61.880(2)(c), its efforts in this regard were deficient. Letters and emails that may have existed on February 3, when her request was submitted, might well have been destroyed or deleted in the succeeding months.
In KRS 61.8715, the General Assembly has recognized "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records, . . . and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to these statutes." It is clearly understood that a public record which is the subject of a pending open records request, or a dispute arising therefrom, cannot be destroyed. See, e.g., Guidelines for Managing Email in Kentucky Government (June 17, 2003) at page 7 and 03-ORD-005 (enclosed). While there is no evidence in the record before us that LFUCG willfully concealed or destroyed records responsive to [the] request, we urge the agency to implement measures aimed at insuring accountability and access through proper records management.
The record on appeal in the case before us raises a similar records management issue.
LFUCG acknowledges that it was not until this appeal was filed that research disclosed that a responsive record in fact existed at the time of the request, but that the record was destroyed in the regular course of business and in a manner consistent with its sixty day retention period. Here, as in 04-ORD-108, we find that LFUCG's search for a responsive record was inadequate, and that its destruction of that record before the records access dispute had been conclusively resolved was inconsistent with principles of proper records management. Again, the record on appeal is devoid of proof of willful concealment of a public record, but suggests an apparent disregard for the essential relationship between records management under Chapter 171 of the Kentucky Revised Statutes and records access under Chapter 61 of the Kentucky Revised Statutes.
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.
Mike TaylorWLEX-TV1065 Russell Cave Rd.P.O. Box 1457Lexington, KY 40588
Chief Anthany BeattyLexington Fayette Urban County GovernmentDivision of Police150 East Main StreetLexington, KY 40507
Mike SannerDepartment of LawLexington Fayette Urban County Government150 East Main StreetLexington, KY 40507