Request By:
Beverly Searles
Joe Gaddie
Richard Deye
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Butler County EMS properly relied on KRS 61.878(1)(a) in partially denying Beverly Searles' request for "dispatched calls received on July 7th, 2008 from 5 pm -- 10 pm regarding incident that occurred on Arnold Ridge Road & Arnold Ridge Oil Field Road."
In her letter of appeal, Ms. Searles indicated that the agency had advised her verbally that copies of tapes of dispatched calls would have to be subpoenaed.
After receipt of notification of the appeal, Richard J. Deye, Butler County Attorney, provided this office and Ms. Searles with a response to the issues raised in the appeal. In his response, he advised that the county and dispatch office would provide Ms. Searles with copies of the audio recordings of the radio transmissions between the dispatch office and the various officers, but would withhold from inspection the original 911 call from the private citizen requesting police involvement, under authority of KRS 61.878(1)(a) and Bowling v. Brandenburg , 37, S.W.3d 785 (Ky. 2001). He argued that although he was reasonably comfortable that Ms. Searles was aware of the identity of the 911 caller, "releasing of tapes of 911 calls seeking police assistance could have a chilling effect on those who might otherwise seek assistance because they could become subject to retaliation, harassment, or public ridicule. "
Shortly thereafter, Ms. Searles provided this office with a reply to Mr. Deye's response. In her reply, she indicated that she was well aware of the caller's identity, but she was not provided with a copy of the 911 caller's call. She further stated the call resulted in law enforcement responding to a location where she and her family were and that Deputy Mark Taulbee had an interview with The Butler County Banner in which the caller was identified as the person that had initially contacted dispatch. Under such facts, Ms. Searles argued that the caller had no expectation of privacy and the county could not impute a privacy interest on her behalf, but if the Butler County EMS wished to mask portions of the call in which the caller identified herself that would be agreeable with her.
Mr. Deye provided this office with a response to Ms. Searles' reply. He reiterated that the county's position had not changed from its earlier response and continued to maintain that the original 911 call would be exempt under KRS 61.878(1)(a). Referencing again
Bowling v. Brandenburg, supra, he argued:
The Bowling case cites the case of Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994). The Zink case gives a good analysis of the weighing [of] the public interests in disclosure against the privacy interests involved. Recognizing that the public's right to know under the open record act is premised upon the public's right to expect its agencies to properly execute their statutory functions, it is doubtful that disclosure of the information sought would appreciably further the citizens right to know what the government is doing and would not in any real way subject the actions of the dispatch office to public scrutiny. While I have no personal knowledge as to the content of the 911 call, it can be speculated that the call is from a private citizen requesting police assistance. The public servant would be asking appropriate questions to learn what type of services are being requested. Pursuant to the court's ruling in the Bowling case, the release of tapes of 911 calls seeking police assistance could have a chilling effect on those who might otherwise seek assistance because they would become subject to retaliation, harassment, or public ridicule. The fact that the identity of the 911 caller may be known is irrelevant as to whether or not the government should disclose information which would constitute a clearly unwarranted invasion of personal privacy. The suggestion that the dispatch office mask portions of the call in which the caller identifies herself is an insufficient method to protect the privacy right involved and certainly does not outweigh a private citizens need to be free from potential complications from seeking police assistance.
We are asked to determine whether Butler County EMS's partial denial of Ms. Searles' request, under authority of KRS 61.878(1)(a), violated the Open Records Act. 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 [.]" 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," 04-ORD-161, p. 5. For the reasons that follow, we conclude the agency has not presented sufficient facts in this case that would warrant the invocation of KRS 61.878(1)(a) and meet its statutory burden of proof in denying the request for a copy of the initial 911 call.
In
Bowling v. Brandenburg, 37 S.W.3d 785, (Ky. App. 2000), the Kentucky Court of Appeals 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. The court 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, the court reasoned:
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.
In 04-ORD-061, 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 the Lexington-Fayette Urban County Government Division of Police's reliance on KRS 61.878(1)(a) was therefore misplaced. Distinguishing the facts giving rise to Bowling v. Brandenburg from the facts presented 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.
?
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.
In the instant appeal, the Butler County EMS does not identify, as was done in Bowling and 04-ORD-061, the nature and context of the privacy interests of the 911 caller implicated by release of the tape of the initial 911 call. Ms. Searles advised that she was aware of the caller's identity and a Deputy had revealed her identity as the person that had contacted the Dispatch Center in an interview with The Butler County Banner . Presumably the Deputy may have also discussed some of the details precipitating the initial call. The agency has not described any facts in this particular case that would support the nondisclosure of the initial 911 call. A bare assertion in this regard is insufficient to satisfy the agency's statutorily assigned burden of proof.
Conversely, we believe the public's interest in the actions of 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." 04-ORD-061, p. 6. Disclosure of the record 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 a 911 caller to satisfy its burden of proof that the privacy interests of that victim are superior to the public's interest in disclosure. 04-ORD-061. In the absence of more particularized proof relative to the nature of the privacy interest of the caller involved, we conclude the agency 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). Accordingly, a copy of the initial 911 call should be made available to Ms. Searles.
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.