Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) properly relied on KRS 61.878(1)(a), (i), and (l), incorporating KRS 65.752(4) into the Open Records Act, in partially denying Chris Henson's April 26, 2007, request for photocopies of all "written offense/incident reports" and all "computer aided dispatch (C.A.D.) printouts that show the date and time of each call to State Police, whom the complainant was, and the reason for such call for police service," for calls to two specified addresses and pertaining to six named individuals, from the time periods of January 1, 2005, to April 26, 2007.
By letter dated May 7, 2007, Mary Ann Scott, Custodian of Records, KSP, responded to Mr. Henson's request, received by the agency on May 2, 2007, 1 and advised him that she had forwarded a copy of his request to KSP Legal Branch for review and redaction consistent with the applicable statutes. She further advised him that the records should be available by Friday, May 11, 2007.
By letter date May 14, 2007, Ms. Scott responded again to the request, advising:
Please be advised that six (6) dispatch records were located. However, five of the six records are classified as correspondence with private individuals which failed to result in final agency action and are therefore exempt from disclosure in compliance with KRS 61.878(1)(i). In addition, three (3) of the six (6) records pertain to domestic situations, which are also denied pursuant to KRS 61.878(1)(a), as the public disclosure of this report would constitute an unwarranted invasion of personal privacy, and KRS 61.878(1)(i), as the call was correspondence with a private individual and did not result in any final action by the agency. See also Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000).
Enclosed you will find the one (1) record that may be released to you. Certain information (DOB) contained in the report has been redacted in compliance with KRS 61.878(1)(a), as disclosure of this report would constitute an unwarranted invasion of privacy. In addition, KRS 65.752(3) and (4) state that information obtained through enhanced 911 Automatic Location Information (ALI) should remain confidential. Therefore, the address obtained through ALI has also been redacted.
In a reply to the KSP's response, Mr. Henson stated that the KSP failed to indicate in its response whether or not there were any offense/incident reports responsive to his request.
We find that the KSP did not meet its statutory burden of proof in partially denying Mr. Henson's request for copies of the dispatch records under authority of KRS 61.878(1)(a) and KRS 61.878(1)(i). In an early open record decision, this office recognized that records of law enforcement agencies are subject to public inspection unless they are specifically exempted by statute. OAG 76-478. In that decision, we observed:
Police departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.
OAG 76-478, p. 2. We later reaffirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." OAG 76-511, p. 4. These decisions were premised on the notion that:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the Services of [that agency] to investigate a crime, he cannot expect that the matter will be kept secret.
OAG 80-144, p. 1 - 2.
This office has previously held that police radio incident reports and 911 dispatch records are, in general, open for public inspection. 98-ORD-104; 94-ORD-133; OAG 89-20; OAG 89-11.
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 Act 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 04-ORD-188, this office expressly rejected an agency's attempt to withhold, as a matter of policy, categories of information from law enforcement records on the basis of KRS 61.878(1)(a) . At page three of that decision, we opined that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure. " 2 A copy of that decision is attached hereto and incorporated by reference. As this office concluded in 04-ORD-188, "[a]bsent a particularized showing [of a heightened privacy interest] , the public has a legitimate interest in [law enforcement reports] and disclosure of the information they contain transgresses only minimally upon the privacy of the individuals who are the subjects of those reports." 04-ORD-188, p. 10.
In the instant appeal, the KSP does not identify, with any degree of specificity, the nature of the privacy interests implicated by release of the dispatch reports. It maintains, generally, that three of the dispatch reports involve domestic situations and that disclosure of the reports would invade the privacy of the individuals involved. A bare assertion in this regard is insufficient to satisfy the KSP's statutorily assigned burden of proof. In the absence of more particularized proof relative to the privacy interest involved, we conclude the KSP fails to establish that the public's interest in release of the requested records is outweighed by the individual's privacy interest in withholding the record under KRS 61.878(1)(a). Disclosure of such records serves the principal purpose of the Open Records Act by enabling citizens to be informed as to what the police are doing in discharging their law enforcement duties. Recognizing the existence of these competing interests, we have held that it is incumbent on the agency advocating nondisclosure of records relating to an individual victim to satisfy its burden of proof that the privacy interests of that victim are superior to the public's interest in disclosure. "A record devoid of proof beyond a bare allegation as to the seriousness of the incident and the adverse impact on the [victim] of further disclosure will not support a denial based on KRS 61.878(1)(a)." 98-ORD-185, p. 7. Accordingly we find that the KSP's reliance on KRS 61.878(1)(a) in partially denying Mr. Henson's request was misplaced.
We also reject the argument that KRS 61.878(1)(a) and (i), as construed in Bowling v. Brandenburg, authorizes nondisclosure of the requested records. In 2000, the Bowling court adopted the reasoning of OAG 90-117, an opinion of this office holding that KRS 61.878(1)(a) and (i) authorized nondisclosure of the tapes of 911 calls and characterizing the tapes of the calls as correspondence with private individuals. However, in 94-ORD-133, this office expressly overruled OAG 90-117. 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.
The KSP also relies on Bowling v. Brandenburg as authority for withholding the dispatch records. This office, in 06-ORD-230, stated that, in the absence of a Court of Appeals or Supreme Court opinion repudiating the Attorney General's interpretation of Bowling v. Brandenburg, the Attorney General would continue to construe Bowling, in the context of 911 calls, as requiring "a case-specific approach to determining whether access to records is appropriate . . . ."
Bowling v. Brandenburg, at 787. A copy of 06-ORD-230 is attached hereto and incorporated by reference.
Nevertheless, we affirm KSP's decision to redact dates of birth under KRS 61.878(1)(a) and the addresses obtained through enhanced 911 Automatic Location Information (ALI). In 04-ORD-143, we stated:
? disclosure of personal information beyond the identities of the crime victim or "involved persons", in this instance addresses and dates of birth, only minimally serves the purposes of the Act since disclosure of the identity of the victim and "involved persons" is sufficient to allow public scrutiny of the actions of the police department. Consequently, these personal details which are "generally accepted by society" as carrying an expectation of privacy outweigh the minimal public interest in disclosure. Zink, at 828-829; accord Hines v. Commonwealth, Department of Treasury, Ky.App., 41 S.W.3d 872, 876(2001).
04-ORD-143, p. 10. In the absence of any claim that disclosure of the individual dates of birth at issue would advance the public's right to know, we find no violation in the redaction of the date of birth by the KSP.
The KSP redacted the address from the dispatch record provided Mr. Henson, under authority of KRS 65.752(3) and (4), as that information had been obtained through the enhanced Automatic Location Information (ALI). In 04-ORD-161, the Attorney General was asked to determine whether the Lexington Fayette Urban County Government properly relied upon KRS 65.752(4) in providing a written summary of a specified 911 telephone call as opposed to a copy of the recording itself. This office addressed the scope of the protection for private information afforded by KRS 65.752(4) as follows:
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 [Automatic Location Identification] 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).
04-ORD-161, at p. 4 (emphasis added). Under this line of reasoning, the KSP was authorized by KRS 65.752(4) to withhold ALI information. See also, 07-ORD-063.
ALI information falls within the parameters of KRS 65.752(4), the express and mandatory terms of which preclude an employee of a PSAP from retrieving or disclosing that information without a court order; likewise, KRS 65.752(3) requires the "service supplier" 3 to maintain the confidentiality and privacy of all information contained in the ALI/DBS in the absence of a court order. When viewed in conjunction, these provisions evidence a clear intent by the General Assembly to ensure that such information is adequately protected; the KSP did not violate the Open Records Act in redacting this information from the dispatch record.
Finally, Mr. Henson, in his reply to this office, states that the KSP, did not affirmatively advise him whether or not there was any offense/incident reports related to his request. In responding to an open records request, it is incumbent on the public agency to ascertain whether the requested records exist, to promptly advise the requester of its findings, and to release to all nonexempt responsive records. If no additional responsive records exist, the public agency is obligated to affirmatively so advise the requester. 03-ORD-212. The failure to address Mr. Henson's request in its entirety constituted a violation of the Open Records Act. Accordingly, if it has not already done so, the KSP should promptly respond to this portion of Mr. Henson'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.
Footnotes
Footnotes
1 The copy of the April 26, 2007, request to KSP provided to this office by Mr. Henson, has stamped on it "Received April 30, 2007 -- Kentucky State Police." We have insufficient information to resolve this factual disparity. To the extent the agency's response exceeded three business days after its receipt, it constituted a procedural violation of KRS 61.880(1). In its May 7, 2007, response to Mr. Henson, the KSP Records Custodian advised Mr. Henson that a copy of the requested records had been forwarded to the Legal Branch for review and the records would be made available to him on Friday, May 11, 2007. The KSP responded on May 14, 2007. Although, an agency may process its open records through its legal counsel, this is not a proper basis for delay in providing timely access to a request for public records. 94-ORD-99. This, too, constituted a violation of the Act.
2 A single narrow exception to this general rule has been recognized for the victims of sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes. In 02-ORD-36, this office affirmed a law enforcement agency's policy of redacting names and personal identifiers of victims of sexual offenses.
3 KRS 65.750(9) defines "service supplier" as "a person or entity that administers, maintains, and operates the ALI/DBS and may include telephone companies that provide local exchange telephone service to a telephone subscriber[.]"