Request By:
Clarence T. Hurst
Angie Matney
Paul K. Winchester
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Whitley County 911 Dispatch violated the Open Records Act in denying Clarence T. Hurst's July 10, 2009, request for a copy of "recordings from 7-7-09 that pertain to the incident at Mossy Gap on 92-E where Tom Hurst made two 911 phone calls to report a fight between a male and female . . . [and] recordings made by other callers reporting the incident." For the reasons that follow, we find that Whitley County violated the Act in denying Mr. Hurst's request.
In a response dated August 12, 2009, Whitley County 911 Dispatch Supervisor Angie Matney denied Mr. Hurst's request advising him that "911 recordings are exempt from the KY Open Records Act and therefore may only be obtained by a subpoena." Ms. Matney cited no legal authority in support of this position, nor did she elaborate in any manner, and Whitley County elected not to respond to this office's notification of receipt of Mr. Hurst's appeal. The County's response was therefore both procedurally and substantively deficient.
To begin, Whitley County 911 Dispatch violated KRS 61.880(1) when it failed to issue a timely written response to Mr. Hurst's request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.) Over one month elapsed between the date on which Mr. Hurst presumably mailed his request and the date on which Whitley County presumably issued a written response. 1 That response was deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). Upon receipt of this office's notification of Mr. Hurst's appeal, Whitley County did not avail itself of the opportunity to "provide the Attorney General with a written response to the issues raised in the complaint," including the issues relating to noncompliance with KRS 61.880(1). 40 KAR 1:030 Section 2. In the absence of any explanation for these deficiencies, we find that Whitley County violated the procedural requirements of the Open Records Act.
Further, we find no support in the law for Whitley County's position that "911 recordings are exempt from the KY Open Records Act . . . ." KRS 61.870(2) defines the term "public record" as "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency, " and an ever-growing body of caselaw and open records decisions are premised on this unambiguous definition that clearly includes 911 recordings. While the courts and this office have, on occasion, recognized the propriety of public agency nondisclosure of all or portions of a 911 recording, 2 no successful attempt has been made to extend blanket protection to them.
In 08-ORD-188, the Attorney General approved partial redaction of 911 calls relating to a tragic incident in which a two year old child was struck by a bat during a t-ball practice. Specifically, we held that the 911 dispatch center could redact those portions of the recordings in which the child's injury and medical condition were discussed. Our analysis proceeded from the assumption that the 911 recordings were public records, and therefore subject to public inspection, but acknowledged "the presence of specific details relating to the child's injuries, and efforts to resuscitate him prior to the arrival of the emergency vehicle, the disclosure of which would not meaningfully advance the public's right to know how [the 911 dispatch agency] responded, but would almost certainly result in additional pain to his surviving family members." 08-ORD-188, p. 6. With the exceptions noted, the Attorney General found that the 911 dispatch center was required to disclose the 911 calls.
In a subsequent open records decision issued in 2008, the Attorney General concluded that because the 911 dispatch center did not identify "the nature and context of the privacy interests of the 911 caller" or "describe any facts in this particular case that would support nondisclosure, " the disputed recordings, which related to an "incident that occurred on Arnold Ridge Road" must be disclosed. 08-ORD-205, p. 5. At page 5 of that decision, we observed:
[I]t is incumbent on the agency advocating nondisclosure of records relating to a 911 caller to satisfy its burden of proof that the privacy interests 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, we conclude the agency fails to establish that the public's interest in release of the requested records is outweighed by the privacy interest in withholding the record under KRS 61.878(1)(a).
The appeal before us is more closely akin to 08-ORD-205 than 08-ORD-188 insofar as Whitley County 911 Dispatch offers no proof of any kind to support nondisclosure of the recordings Mr. Hurst requested. Because KRS 61.880(2)(c) 3 assigns the burden of proof to Whitley County, because Whitley County failed to satisfy that burden of proof, notwithstanding the fact that it was afforded two opportunities to do so, and because the legislature has declared that free and open examination of public records, including 911 recordings, is in the public interest, 4 we find that the recordings must be disclosed to Mr. Hurst.
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 Nothing in the record on appeal controverts this assumption.
2 See Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000) (holding that Berea Police Department properly invoked KRS 61.878(1)(a) to deny a request for a 911 recording submitted by the 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).
3 KRS 61.880(2)(c) provides, in relevant part, "The burden of proof in sustaining the action shall rest with the agency . . . ."
4 KRS 61.871 thus states:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.