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 Campbell County Consolidated Dispatch Center violated the Open Records Act in the disposition of Kentucky Enquirer reporter Jim Hannah's June 25, 2007, request for "a log of all police calls and/or emergency runs to 70 Madonna Place, Fort Thomas, Ky. 41075." For the reasons that follow, we find that the Center's disposition of Mr. Hannah's request was procedurally and substantively deficient, and that its refusal to disclose the requested records constituted a violation of the Open Records Act.
By letter dated June 28, 2007, Mary Ann Stewart responded to Mr. Hannah's request on behalf of the Center. Ms. Stewart relied on
Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000), for the proposition that "dispatch records that may identify the caller are not subject to public disclosure under the Open Records Act" and its statutory reference to KRS 61.878(1)(a), (h), and (i). Citing 99-ORD-10, she explained that the Center is an inter-local agency comprised of various Campbell County cities and Campbell County, and that it is the Center's practice, upon receipt of an open records request, to consult with the responding law enforcement agency, in this case the Fort Thomas Police Department, to ascertain the agency's position with respect to release of dispatch records for specific calls. Ms. Stewart indicated that, upon inquiry, the Fort Thomas Police Department requested that the Center invoke the exception found at KRS 61.878(1)(h), on the basis that "release of logs of police calls and/or emergency runs to the residence at 70 Madonna is premature, given the existing, pending police investigation into the shooting incident on June 25th."
She encouraged Mr. Hannah to "contact the Fort Thomas Police Department or the City directly as their investigation progresses to determine the future availability of any records that are the property of the City . . . ."
Shortly thereafter, The Kentucky Enquirer initiated this appeal through the law firm of Graydon, Head, & Ritchey LLP, and its attorney Paul Alley, questioning the adequacy of the Center's response and its reliance on the cited exemptions. By way of background, Mr. Alley explained:
On or about June 25, 2007, a man living at 70 Madonna Place, Fort Thomas, Kentucky, was shot and killed. His wife was arrested the same day and charged with his death. Police indicated on the uniform citation, which has been released, that the wife called 911 and claimed that she had shot the man. She also alleged self-defense. The uniform citation for the incident is attached as Exhibit C. Police have acknowledged that prior to June 25, 2007, they made one or more visits to the same address. Reportedly, one of these prior visits resulted from a complaint about a dog, but the Dispatch Center has not released this or any other dispatch record.
Characterizing the Center's actions in this regard as "a mechanistic blanket denial for all dispatch log entries or 'dispatch records,'" The Kentucky Enquirer expressed the belief that the Center's denial "falls short of the necessary procedural requirements in that it does not attempt in any meaningful way to explain its denial of the records request at issue," and that it "also appears to misstate the applicability of the various statutory exemptions it referenced to the actual facts here, or to holding and facts in the Brandenburg case." In closing, The Enquirer asserted that "[t]he information being requested is necessary to any attempt to review the operation and efficiency of both the police and the Dispatch Center [insofar as p]rior requests and visits to the residence raise questions as to any earlier opportunity to intervene or identify a risk, establishing whether services have been provided in a uniform and reasonable manner, reflect the response time of both the dispatch center and the police and more generally reveal whether both agencies have carried out their statutory functions."
In supplemental correspondence directed to this office following commencement of The Kentucky Enquirer's appeal, Campbell County Consolidated Dispatch Center elaborated on its position. On behalf of her client, Ms. Stewart emphasized that The Enquirer's request reached the Center "[w]ithin hours of the shooting, . . . while police were still gathering evidence," and while "the logs of all police calls and emergency runs involving that residence, and the persons residing within, were being analyzed as part of the recently-commenced homicide investigation." She again emphasized that the Center has no authority to override the judgment of the investigating agency relative to the apparent evidentiary value of the requested records, and that the Ft. Thomas Police Department's denial was, of statutory necessity, formulated in haste given the three business day response time. It was her position that the Center's response was procedurally adequate, inasmuch as KRS 61.880 "requires a 'brief' explanation; not a legal memorandum, tome, or a law review article," and that explanation was provided in the form of the Center's reference to the Brandenburg case. Mr. Stewart rejected The Enquirer's claim that her client failed to explain how the logs were being utilized by the Fort Thomas Police Department in its investigation, noting that the Center, "being a collateral custodian of" records owned by the Department, "could not have provided such elaboration because only the . . . Department was privy to this specific information," but that it was "entitled to rely upon and honor the . . . Department's assertion of the exemption. " She objected to The Enquirer's attempt to invade the relevant exemptions "merely by side-stepping the law enforcement agency, and compelling disclosure through a collateral records custodian . . . ."
Ms. Stewart then elaborated on two of the three statutory exemptions invoked in support of denial of Mr. Hannah's request. With specific reference to the Department's invocation of KRS 61.878(1)(h), Ms. Stewart acknowledged that "it is unusual for logs of historical runs to a specific residence to be used by a law enforcement agency as evidence," but insisted that "in this case, at least at the time of the request, that was precisely the case" insofar as the Department was "trying to determine who the shooter was and what the possible motive was." To this end, Ms. Stewart continued, the Department was "sifting through the very same logs sought by [The Enquirer] . . . [that] included information as to who had been to the house previously, reasons for the emergency calls, and what had occurred between the residents of the house and other persons . . . ."
With reference to the Department's invocation of KRS 61.878(1)(a), Ms. Stewart emphasized that "[t]he same privacy interests are implicated in the release of 911 dispatch logs . . . [as] their counterpart tapes, [insofar as they] reveal the identities of who called, when they called, and what they reported." It was her position that the agency's "reference to Bowling v. Brandenburg, in addition to the other reasons proffered in the denial letter, provided The Enquirer with a full explanation of the reasons and justifications for the denial of the request," and that it used "a case-specific balancing test that factored in the existing circumstances . . . ." While we see nothing wrong with the Center's practice of consulting with the law enforcement agency on whose behalf it holds the requested records to ascertain that agency's position on release of the records, we find that, in so doing, it is required to obtain sufficient proof from the agency to sustain its statutorily assigned burden, and that, in the instant appeal, the proof obtained and adduced in support of denial was insufficient to support the claim of exemption.
In responding to The Enquirer's request, the Center develops the concept of "collateral custodianship" of a public record. We are aware of no legal precedent supporting this concept. 99-ORD-10, which the Center cites in support of the concept, deals with the concept of "casual possession," recognizing that "the weight of recent legal authority indicates that the concept . . ., which has no statutory basis, has been all but discarded." Id. at p. 3. Having so noted, the Attorney General nevertheless held that a custodial agency could, and almost certainly should, consult with another agency affected by disclosure of the requested records to ascertain that agency's position on release of the records. We quoted extensively from 98-ORD-100:
In the three day period between receipt of the request and notification of its decision to the requester, the agency is free to take any reasonable steps in furtherance of that decision. However, its election to consult with the [other] agency cannot be used as an excuse to extend the deadline for its response to the open records request. As a public agency which has possession or retains copies of the records, it is obligated to discharge its duties under KRS 61.880(1) by releasing those records within three working days, or by denying [the requester] access to them on the basis of one or more of the exceptions found at KRS 61.878(1)(a) through [(n)] within three working days . . . . 1
The problem here lay not in the Center's practice of consulting with the Department to ascertain the Department's position on release of the logs, but in its failure to obtain sufficient proof from the Department to support the claimed exemptions.
The Center's original response was deficient in this regard. Its contents can be summarized as follows: 1) a recapitulation of the request; 2) a statement of denial and reference to Bowling v. Brandenburg, above, for the proposition that "dispatch records that may identify the caller are not subject to public disclosure; " 3) a recitation of the exceptions cited in Bowling v. Brandenburg, above; 4) an explanation of the relationship between the Center and the various participating agencies, and, in particular, how the Center handles open records requests; and 5) a statement that the Fort Thomas Department has asked the Center to "honor the exemptions under KRS 61.878(1)(h) and (i)." While we concur with the Center in its view that KRS 61.880(1) itself, and as construed in Edmondson v. Alig, above, does not "require a responding agency to regurgitate principles of law that have already been ruled upon by the courts," we believe that it is incumbent on the responding agency to provide, at a minimum, a brief explanation of how the cited exceptions apply to the record withheld. Where, as here, the weight of legal authority runs counter to the position taken, it is incumbent on the agency to provide particular and detailed information in support of its denial. Edmondson v. Alig, above. As noted, the Center acknowledges at page 11 of its supplemental response that "it is unusual for logs of historical runs to a specific residence to be used by a law enforcement agency as evidence," and this office has, as both parties to this appeal are no doubt aware, repeatedly recognized that police dispatch logs are generally open to public inspection. See, 94-ORD-133 and authorities cited therein. Under these circumstances, and notwithstanding the timing of The Enquirer's request and the obstacles that the Center consequently faced, we find that the Center's original response was deficient insofar as it failed to offer even a brief explanation of how the cited exceptions applied to the particular records withheld.
In its 17 page supplemental response, the Center attempted to mitigate this deficiency by engaging in the practice it simultaneously criticized, namely, regurgitating established legal principles rather than focusing on the particular records at issue. The Center did not amplify on its position that KRS 61.878(1)(i), authorizing nondisclosure of preliminary drafts, notes, and correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency, and we refer the parties to our decision in 06-ORD-230 for the holding that the exemption is facially inapplicable to the dispatch records. The Center expends considerable effort in an attempt to analogize the requested dispatch logs to the 911 dispatch calls at issue in Bowling v. Brandenburg, above, suggesting that all dispatch records implicate personal privacy, but articulating no particular privacy interests implicated by these dispatch records. The Center fails to present any specific facts supporting its claim that the privacy interests in these "seriatim notations . . . of a summary character . . . of police dispatches and disposition codes" are superior to the public's interest in monitoring, in The Enquirer's words, "the operation and efficiency of both the police and the Dispatch Center . . . ." Because the decedent no longer has a protectable privacy interest, and because the Department has disclosed that it was his wife who called 911 to announce that she had shot her husband, we cannot imput a privacy interest on her behalf, or on behalf of an undisclosed person, to which the public interest must yield. The Center's argument therefore fails.
Whether the requested dispatch logs enjoy protection from public inspection pursuant to KRS 61.878(1)(h) is a closer question. That exception authorizes public agencies to withhold:
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.
As noted above, where the weight of authority runs counter to the public agency's position, it is especially important that the agency "provide particular and detailed information in response to a request for documents." Edmondson v. Alig at 858.
The need for particularity is most acute when an agency relies on KRS 61.878(1)(h) as the basis for denial. Thus, in 95-ORD-95, and numerous decisions subsequent thereto, this office has observed:
In order to successfully raise KRS 61.878(1)(h), 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, p. 2, 3 (emphasis added); 05-ORD-078 (and authorities cited therein). While the Dispatch Center and Ft. Thomas Police Department clearly qualify as law enforcement agencies, thus satisfying the first of these three requirements, it is by no means clear that the requested dispatch logs were "compiled in the process of detecting or investigating statutory or regulatory violations."
On this issue, the Attorney General has consistently opined:
Police dispatch logs are typically seriatim notations commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. Such logs have never been granted blanket exclusion from inspection pursuant to KRS 61.878(1)[(h)], particulars regarding any given notation on a log would have to be articulated in terms of the requirements of the statute."
OAG 89-20, p. 2; OAG 82-70; OAG 89-68; 93-ORD-41; 94-ORD-133; 03-ORD-226; 05-ORD-078; 07-ORD-139. Under this line of reasoning, the phrase "records compiled in the process of detecting and investigating statutory violations" does not extend to dispatch logs that were "not made uniquely in a specific detection or investigation process," but were instead "'segregated' in connection with an investigation." Consistent with these authorities, the disputed logs do not satisfy the second of the three requirements found at KRS 61.878(1)(h).
Assuming, arguendo, that the logs satisfy the first and second of the three requirements, the Center fails to articulate how disclosure of these "seriatim notations, commonly of a summary character, of police dispatches and disposition codes" would harm the Fort Thomas Police Department "by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. " KRS 61.878(1)(h). In OAG 89-11, we focused on the fact that "there must . . . be a showing that the agency would be harmed by 'premature release of information to be used in a prospective law enforcement action' . . . [and,] only a bare claim is made in such regard." OAG 89-11, p. 4. There, the law enforcement agency asserted that the disputed record "provide[d] valuable information of an investigatory and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect." OAG 99-11, p. 5. The Attorney General rejected the claim that release of the tape "would be detrimental to the criminal action against the suspect," and concluded that the statement "d[id] not describe any harm to the agency" if inspection were allowed. Id.
In the appeal before us, the Center advances similar arguments postulated on supposition and conjecture rather than a description of actual harm to the Fort Thomas Police Department from premature disclosure. While we appreciate that the ambiguities in its response were largely a function of the timing of The Enquirer's request, coupled with the apparent paucity of information provided by the Fort Thomas Police Department, these circumstances did not relieve the Center of its statutory burden of proof. The Center did not meet that burden in its original or supplemental response by providing "particular and detailed information" and/or particularized justification for the withholding of ordinarily accessible public records. The Center therefore violated the Open Records Act in denying The Enquirer'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 A third option was, in this instance and under these facts, also available to the custodial agency. In view of the fact that The Enquirer's request arrived within hours of the incident to which the records directly or indirectly related, and the fact that the Fort Thomas Police Department was "sifting through the very same logs sought by" The Enquirer for possible evidence, the Center might have invoked KRS 61.872(5) on the third day after receipt of the request, and advised The Enquirer that the requested logs were "in active use," provided a detailed explanation of the cause for delay, and stated the earliest time on which the logs would be available for inspection as required by KRS 61.872(5).