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 the Lexington-Fayette Urban County Government Division of Police properly relied on KRS 61.878(1)(a) , (h), (i), (j), and (l), incorporating KRS 65.752(4) and 17.150(2)(b) into the Open Records Act, in denying WLKY-TV Capitol Reporter Mark Flores' August 28, 2006, request for "all 911 tapes from the morning of 8-27-06 between the hours of 6 AM and 8 AM regarding the crash of flight 5191." We find that in the absence of a published Kentucky Court of Appeals or Kentucky Supreme Court opinion repudiating this office's interpretation of
Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2000), and establishing a blanket prohibition on disclosure of 911 tapes, we are constrained to find that LFUCG's reliance on the cited exemptions to justify nondisclosure of the tapes was misplaced with the exception of those portions of the tapes in which the 911 callers identify themselves and provide their cell phone numbers. 1
By letter dated September 1, 2006, Officer Aaron Kidd denied Mr. Flores' request on behalf of LFUCG, advising him as follows:
The following information has been redacted from the dispatch printout: [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]. This information is exempt from public inspection pursuant to KRS 65.752(4) which states as follows: In areas where enhanced 911 service has been implemented, an employee of a PSAP shall not retrieve or disclose 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. This section is incorporated into the Open Records Act pursuant to KRS 61.878(1)(l) which exempts from public inspection "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by the enactment of the General Assembly." 2 The 911 tape is also exempt pursuant to KRS 61.878(1)(a) as an unwarranted invasion of personal privacy. KRS 61.878(1)(i) as preliminary draft and KRS 61.878(1)(h), involving an ongoing Police Investigation. Release of 911 tapes could have a chilling effect on the 911 system. See Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2000).
(Emphasis in original.) Shortly thereafter, Mr. Flores initiated this appeal questioning the timeliness of LFUCG's response, 3 LFUCG's disclosure of "recordings from the 911 dispatch center" on the same day he received the written denial of his request, and LFUCG's assertion that an ongoing police investigation precluded disclosure of the disputed tapes. Mr. Flores indicated that he was aware of no such investigation and requested notification of same.
In supplemental correspondence directed to this office following commencement of Mr. Flores' appeal, LFUCG responded to these questions and elaborated on its position. With reference to the question of the timeliness of its response, LFUCG conceded that although Officer Kidd's letter was dated September 1, it was postmarked September 6, and that "the Labor Day holiday weekend may have delayed mail delivery." With reference to the question of disclosure of police dispatch tapes and radio traffic to all media outlets who requested them, LFUCG characterized police 911 tapes as "completely different" from dispatch tapes and radio traffic, noting that other media requests for the same police 911 tapes were also denied. Finally, LFUCG declined Mr. Flores' request for notification of a police investigation into this matter on the basis that no provision of the Open Records Act requires such notification.
Amplifying on the arguments supporting its denial of Mr. Flores' request, LFUCG argued:
. that the Office of the Attorney General misinterprets Bowling v. Brandenburg, above, in holding that 911 tapes are not always protected from disclosure by the personal privacy exemption;
. that the Office of the Attorney General incorrectly applies KRS 61.878(1)(a) to records maintained by the Division of Police when "the proper privacy standard for police documents" is to be found in KRS 17.150(2)(b);
. that the Office of the Attorney General erroneously "believes that the government agency is responsible for applying the balancing test regarding the privacy exemption, " Cape Publications v. City of Louisville, Ky. App., 147 S.W.3d 733 (2003) notwithstanding. 4
. that the disputed tapes "are considered preliminary under KRS 61.878(1)(i) and (j)" insofar as the tapes were "part of an ongoing investigation in which no final action ha[d] taken place . . . ." at the time of the request;
. that the disputed tapes are excluded from disclosure by KRS 61.878(1)(h) insofar as both federal and local investigations were proceeding at the time of the request. 5
In sum, LFUCG argued, "[f]or the Attorney General's office to affirm this appeal [sic] would be an arbitrary and capricious decision in which it would violate its own regulations, statutory law, and case law and interpret law inconsistent with courts of higher jurisdiction." Respectfully, we disagree.
In 04-ORD-161, the Office of the Attorney General held that the public's interest in the contents of a 911 call placed by a student on a school bus, in response to a medical emergency on the bus, outweighed the privacy interest of the student and that LFUCG's reliance on KRS 61.878(1)(a) 6 was therefore misplaced. There, the Attorney General reasoned:
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:
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.
04-ORD-161, p. 5, 6.
Distinguishing the facts giving rise to Bowling v. Brandenburg from the facts before us in 04-ORD-161, we observed:
The decision of the 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.
04-ORD-161, p. 6. It is the decision of this office that 04-ORD-161 reflects the proper analysis of Bowling v. Brandenburg and that it represents controlling precedent on the issue of access to 911 calls under Bowling v. Brandenburg in this forum until such time as that analysis is repudiated by the Kentucky Court of Appeals or the Kentucky Supreme Court in a published opinion. To hold otherwise would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. 7 To hold thus promotes certainty in the application of established legal principle, in this case, the principle that KRS 61.878(1)(a), as interpreted in Bowling v. Brandenburg in the context of 911 calls, requires "a case-specific approach to determining whether access to records is appropriate . . . ."
Bowling v. Brandenburg at 787. Like any other public agency, LFUCG is entitled to appeal the Attorney General's open records decision in the appropriate circuit court per KRS 61.880(5)(a).
Applying this principle to the appeal now before us, we find, based upon our in camera review of the disputed 911 tapes, that the public's interest in monitoring the actions of the LFUCG Division of Police and, in particular, its emergency 911 system, in properly executing its statutory duty "to receive 911 calls . . . and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public service agencies," 8 outweighs the privacy interests of the 911 callers in reporting their observations on the morning of August 27, 2006. In so holding, we are guided by the content of the undisclosed calls 9 when compared to the content of the police dispatch tapes, fire dispatch tapes, and fire 911 tapes which were disclosed within days of Mr. Flores' request. Simply put, we see no appreciable difference in the content of the disputed 911 tapes other than the sources from which the calls originated, private individuals as opposed to public employees, and their destination, the Division of Police as opposed to the Fire Department. If anything, the already released materials are more graphic in their reporting of the event, and those materials were, as noted, released contemporaneously with the denial of Mr. Flores' request. Nevertheless, given the magnitude of the event these individuals reported, and the corresponding curiosity in eyewitness accounts, we believe that LFUCG may delete the callers' names and cell phone numbers from the disputed tapes to protect them from unwarranted invasions of their privacy. Such redactions are, in our view, consistent with the proper application of KRS 61.878(1)(a) and KRS 61.878(4). 10
Further, in our view, the privacy standard found at KRS 61.878(1)(a) is the proper standard by which to assess the propriety of LFUCG's denial of Mr. Flores' request. It is, in fact, the standard that has been applied to requests for 911 calls by the courts, in Bowling v. Brandenburg, above, and this office, in, e.g., 94-ORD-133, 94-ORD-144, 94-ORD-150, 00-ORD-162, 02-ORD-005, and 04-ORD-161. We cannot agree that the privacy standard found at KRS 17.150(2)(b) is the appropriate standard in this context. That statute provides:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
KRS 17.150(2)(b) applies, by its express terms, to "intelligence and investigative reports maintained by criminal justice agencies." Although they are, or may be, maintained by a criminal justice agency, 911 calls cannot properly be characterized as intelligence or investigative reports. They are maintained collaterally to, and not as an integral part of, the investigative process. In short, we find that KRS 17.150(2)(b) is facially inapplicable to 911 calls. Assuming, arguendo, that the privacy standard set forth therein applied to 911 calls, we note that KRS 17.150(3) provides:
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. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.
The record before us is devoid of justification, specific or otherwise, that would warrant this office in affirming LFUCG's denial of Mr. Flores' request. This is particularly true in light of the fact that LFUCG contemporaneously released police dispatch tapes, fire dispatch tapes, and fire 911 tapes containing much of the same information.
Turning to the alternative arguments advanced by the agency, we find that LFUCG's reliance on KRS 61.878(1)(i) and (j) was misplaced. These exemptions authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In general, these exemptions "are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency." 05-ORD-210, p. 3-4, citing 94-ORD-118 and 93-ORD-125. In interpreting KRS 61.878(1)(i) and (j), the Attorney General has consistently applied the rule of strict construction codified at KRS 61.871, and borne in mind that the Open Records Act "exhibits a bias favoring disclosure. " Board of Examiners v. Courier-Journal and Louisville Times, above at 327. For example, in 97-ORD-183, this office parsed the language of KRS 61.878(1)(i), opining:
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory . . ." Id. at 804. [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67, p. 9. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
Under this line of reasoning, a 911 call does not qualify for protection as a draft or note, within the meaning of KRS 61.878(1)(i) ; nor does it qualify for protection as a preliminary recommendation or preliminary memoranda in which opinions are expressed or policies formulated or recommended within the meaning of KRS 61.878(1)(j). The purpose underlying KRS 61.878(1)(j) is not served by the nondisclosure of a 911 call that is devoid of opinion, recommendation, or policy formulation.
In 94-ORD-133, this office expressly overruled OAG 90-117 in which we previously held that KRS 61.878(1)(a) and KRS 61.878(1)(i) exempted a 911 tape as a record containing personal information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy and as correspondence with private individuals. At page 13 of that decision, we reasoned:
OAG 90-117 predates the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. After Board of Examiners, there can be no doubt that a policy of blanket exclusion of records, or entries on records, on the basis of KRS 61.878(1)(a) is generally impermissible. The public agency bears the burden of proving the exempt status of the records or entries by establishing, with reference to each record or entry, that the public's interest in disclosure is outweighed by the individual's privacy interests.
. . .
KRS 61.878(1)(i) . . . does not extend to complaints or communications made by telephone, but is limited to "correspondence" as that term is commonly understood. Consistent with the rule of statutory construction codified at KRS 446.080(4) that "words and phrases shall be construed according to the common and approved usage of language . . .," we believe that the term "correspondence" in KRS 61.878(1)(i) means "communication by exchange of letters," or "the letters exchange." Webster's II New Riverside University Dictionary (1988). The term cannot be construed to apply to oral complaints or communications recorded on an audio tape or to written notations appearing on a dispatch log which memorialize those complaints or communications.
Bowling v. Brandenburg, above, which was issued in 2000, several years after OAG 90-117 was overruled by this office, "agree[s] with the rationale of the Attorney General [in OAG 90-117] in concluding that in this case, the recording of the 911 tape is not required to be released."
Bowling v. Brandenburg at 787 (emphasis added). Given the status of OAG 90-117 at the time the court issued Bowling v. Brandenburg, the court's opinion cannot be construed to authorize nondisclosure of all 911 calls in light of the Kentucky Supreme Court's holding in Board of Examiners, above, but instead requires a case specific analysis.
Finally, we find that the record on appeal does not support LFUCG's invocation of KRS 61.878(1)(h) to support nondisclosure of the disputed 911 tapes. That statute authorizes nondisclosure of:
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 . . . . 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
In construing this exemption, the Attorney General has long observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
Implementing this legislative mandate, in
University of Kentucky v. Courier Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) . The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department in disclosing videotape of incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that Oldham County Animal Shelter compiled records relating to care of rescued animal in the process of detecting and investigating statutory or regulatory violation or that disclosure of the records would harm the agency). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
Although the LFUCG Division of Police is a law enforcement agency, and the disputed 911 calls were, arguably at least, 11 compiled in the process of detecting or investigating statutory or regulatory violations, we find no proof in the record on appeal that their disclosure in the days immediately following the crash of Comair Flight 5191 would have harmed the Division of Police. 12 LFUCG focuses instead on the death investigations, personal injury investigation, and the fact that there had been "no positive identification of any of the deceased except for the positive identification on the survivor." Mr. Flores did not request investigative reports, personal injury memos, or any other record generated by LFUCG in the wake of the tragedy, but instead requested recordings of the 911 calls that were made "during the time the event[] in question was occurring," OAG 89-11, p. 3. Our review of those calls as well as the police radio dispatch, fire dispatch, and fire 911 tapes that were released to the media on the day Mr. Flores received the denial of his open records request, suggests, once again, little appreciable difference in content. LFUCG adduces no proof of harm from premature disclosure of the recordings, and we can infer no harm from our review of the recordings. Because the professed harm that would flow from premature disclosure consists of little more than a bare claim, we find that the Lexington-Fayette Urban County Government failed to meet its statutory burden of proof in sustaining its denial of Mr. Flores' request on the basis of KRS 61.878(1)(h) .
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 We are fully aware of the nonfinal circuit court opinion referenced by LFUCG in its supplemental correspondence to this office. WLEX Communications, LLC v. Lexington-Fayette Urban County Government, 04-CI-04126 (Fayette Circuit Court, Division 8, 11/01/05), notice of appeal filed 11/30/05, 2005-CA-002453. However, we have located no authority that directs this office to treat the circuit court's opinion as legal precedent. As noted, unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the line of precedents discussed below. CR 76.24(4)(c).
2 LFUCG does not pursue this argument on appeal. In 04-ORD-161, this office addressed "the scope of the protection for private information afforded by KRS 65.752(4) in areas operating under enhanced 911 emergency service." That statute prohibits employees of Public Safety Answering Points (PSAPS) from retrieving or disclosing Automatic Location Identification (ALI) except in response to a 911 call or for the purpose of maintaining the ALI database. In rejecting agency reliance on the provision to authorize nondisclosure of 911 calls, this office observed:
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.
04-ORD-161, p. 4. We continue to ascribe to this view in the absence of published legal precedent issued by the Kentucky Court of Appeals or the Kentucky Supreme Court rejecting our interpretation.
3 Whatever the reason, LFUCG's response to Mr. Flores' request was overdue by at least two days. We will not belabor this issue. A postmark of September 1 should have appeared on the response. In our view, it is incumbent on an agency to insure that its written response is not only placed in the mail, but mailed out, on the third business day after receipt. KRS 446.030(1)(a); 96-ORD-207; 99-ORD-188; 01-ORD-140.
4 Cape Publications v. City of Louisville, above, construes, inter alia, Kentucky Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992). At page 327-328 of that opinion, the Kentucky Supreme Court held:
[G]iven the privacy interest on the one hand, and on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
(Emphasis added.) In a published opinion issued in 2006, three years after Cape Publications v. City of Louisville, the Court of Appeals again emphasized that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent," reminding the parties that "judicial review of an agency's invocation of the exemption is reviewed de novo, and requires that the agency prove disclosure would be a clearly unwarranted invasion of privacy. " Cape Publications v. City of Louisville, Ky. App., 191 S.W.3d 10, 12 (2006) (emphasis added). The burden of proof in sustaining denial of an open records request is statutorily assigned to the agency and this burden extends to denials based on KRS 61.878(1)(a). KRS 61.880(2)(c).
5 In response to a series of questions propounded to it by the Attorney General under authority of KRS 61.880(2)(c), LFUCG stated that neither the National Transportation Safety Board nor the Federal Aviation Administration requested that the Division withhold the 911 tapes in furtherance of their investigations.
6 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
7 Should this issue again reach the Fayette Circuit Court, it is by no means clear that the matter will be heard in the Eighth Division or, indeed, that the outcome there is predetermined.
8 KRS 65.7621(17).
9 KRS 61.880(2)(c) thus provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
10 KRS 61.878(4) thus 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.
11 In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1)(h) in denying a newspaper reporter's request for tapes of radio transmission between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. Our decision was premised on the JCPD's failure to "describe any harm to the agency" that would result from premature disclosure of the tapes and the failure to demonstrate that the tapes were "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process." OAG 89-11 p. 4. Because the disputed records did not satisfy the second and third parts of the three part test, this office concluded that they were improperly withheld. We believe an analogy can be drawn between the general radio transmissions at issue in OAG 89-11 and the incoming 911 calls at issue in this appeal insofar as they "may have been during the time the events in question were occurring, but [they were] made independently of, or collaterally to, the events involved . . .[, and therefore were] not 'compiled in the process of detecting and investigating statutory . . . violations, within the meaning of KRS 61.878(1)[(h)]." OAG 89-11, p. 3; accord 98-ORD-31. Because our determination that KRS 61.878(1)(h) turns on LFUCG's failure to adduce specific proof of harm resulting from premature disclosure of the tapes, we do not conclusively resolve this issue.
12 As noted above, although federal agencies were concurrently conducting investigations at the time of Mr. Flores' request, LFUCG acknowledges that neither the National Transportation Safety Board nor the Federal Aviation Administration requested that the Division withhold the 911 tapes in furtherance of their investigations. Denial of Mr. Flores' open records request based on potential harm to concurrent investigations therefore cannot be postulated on a request for nondisclosure from the federal authorities.