Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that neither the Boone County Sheriff nor the Boone County Public Safety Communications Center violated provisions of KRS 61.870 to 61.884 in partially denying Kentucky Enquirer reporter Brenna R. Kelly's June, 2011, requests for records relating to a double homicide that occurred on May 29, 2011, at 7465 Ridge East Court. Because the Sheriff reconsidered his original denial of Ms. Kelly's request for the "incident report" 1 relating to the crime and released the report, redacting only social security numbers and dates of birth, we restrict our analysis to the PSCC's partial denial of her request for the tape of the 911 call and call log relating to the crime. 2 Having satisfied its statutorily assigned burden of proof in sustaining this action on the basis of KRS 61.878(1)(h), and afforded this office an opportunity to confirm its position by reviewing the disputed records pursuant to KRS 61.880(2)(c), we find no error in the PSCC's disposition of Ms. Kelly's request.
On appeal, The Enquirer contests the PSCC's position that it is entitled to invoke KRS 61.878(1)(h) on the Sheriff's behalf, noting that it "not only dispatches police, but also non-police public service providers such as fire and emergency medical technicians . . .," and is therefore not a law enforcement agency. Instead The Enquirer argues, it is a mere "public safety answering point" that cannot invoke KRS 61.878(1)(h) under The Enquirer's interpretation of 09-ORD-227. Additionally, it questions whether 911 recordings and dispatch logs are compiled in the process of investigating statutory violations, as required by that exception, since they are "created in the normal course of business before and separate from the ensuing criminal investigation. " Finally, The Enquirer maintains that the PSCC failed to adequately demonstrate the statutorily requisite harm to the investigation or enforcement action that would result from premature release of the disputed records.
In its original denial and supplemental response to The Enquirer's appeal, the Boone County Public Safety Communications Center answers each of these claims. The PSCC first notes that it performs the same service as the Campbell County Consolidated Dispatch Center whose invocation of KRS 61.878(1)(h) to support nondisclosure of a 911 recording the Attorney General did not question in 07-ORD-167. The PSCC next responds to the argument that the 911 recording and dispatch log were not compiled in the process of investigating statutory violations as required by KRS 61.878(1)(h). Acknowledging that each case turns on its particular facts, the PSCC explains that here "[t]he redacted information includes, but is not limited to, specific information about the [crime] scene." Because the victims were found in their home, the PSCC continues, "the circumstances being described by the witness were not within public view but within the confines of a private residence." Thus, PSCC asserts, the records contain primary evidence establishing critical elements of the offense that are central to the Sheriff's investigation. Finally, and with respect to proof of harm from premature release of the records also required by the exception, the PSCC observes:
The first notification of this tragedy was a 911 call. As has been recounted, PSCC recorded the call and compiled a call log. The call log as released, identified the caller by name, the location of the event and that two people were dead, foul play was suspected and released additional listings which have been described as seriatim notations in previous opinions. The PSCC redacted information which was unique and specific to the crime scene. This same unique and specific information is recorded on the 911 tape consisting of voluntary statements made by the witness describing what he saw, and statements made by the witness in response to questions proffered by the trained dispatch operator. The information contained in the redacted call log and/or on the 911 tape includes but is not limited to, the specific location of the bodies in the residence, a description of the condition of the bodies, and a description of the surrounding environs inside the residence. To the best of our knowledge, this information is only known by the witness, the PSCC, the Sheriff's Office, law enforcement agencies, prosecutors' offices and the person or persons involved in the event which caused the deaths . Neither the Sheriff's Office nor PSCC want this information released and at this time fear the release of this information will impede and compromise the ongoing investigation.
(Emphasis in original.) It is the PSCC's position that premature disclosure of the disputed records would compromise the investigation by impeding the Sheriff's ability "to ascertain whether a witness accurately described the crime scene because they had been there or because the information had previously been made public." 3 Here, as in 09-ORD-143, we find that the PSCC met its statutorily assigned burden of proof in withholding the 911 recording, and portions of the dispatch log, on the basis of KRS 61.878(1)(h) at the request of the law enforcement agency on whose behalf it generated these records.
The Enquirer misinterprets the holding in 09-ORD-227 by asserting that a public safety answering point, or PSAP, is never entitled to invoke KRS 61.878(1)(h). In that decision we found that an entity charged with receiving 911 calls and dispatching public safety services, or relaying 911 calls to the appropriate public safety agencies, may claim KRS 61.878(1)(h) "on behalf of another agency which has compiled the 911 call records as part of an investigation of a crime," regardless of whether the entity is designated a "public safety answering point" or is assigned another designation. 09-ORD-227, p. 3, citing 09-ORD-143. In 09-ORD-227, Whitley County E-911 Center invoked KRS 61.878(1)(h) without "identif[ying] the law enforcement agency conducting a criminal investigation or present[ing] any 'particular and detailed information' from that agency about the harm it would suffer from disclosure of the records." Id. We determined that Whitley County's reliance on the exception was unsupported and therefore misplaced. In 09-ORD-143, Trigg County Emergency Services "successfully built a case for nondisclosure [pursuant to KRS 61.878(1)(h)] postulated on the harm to [the Kentucky State Police's] investigation of a triple homicide that would result from premature disclosure of the [911 tape and dispatch log entries]." 09-ORD-143, p. 5. We affirmed Trigg County's reliance on KRS 61.878(1)(h) based on the proof presented that the disputed records "were compiled by the Kentucky State Police, a law enforcement agency, in the process of investigating the triple homicide" and that their disclosure would "harm . . . KSP's ongoing investigation, as well as subsequent prosecution," id. at 6, by "influencing witness statements, disclosing evidence to be used during trial, and tainting the potential jury pool." Id. at 7. The appeal before is more closely akin to 09-ORD-143 than 09-ORD-227.
Here, as in 09-ORD-143, the 911 recording and dispatch log were compiled by the Boone County Sheriff, a law enforcement agency, in the process of investigating a multiple homicide. Regardless of whether it is itself a law enforcement agency, the Boone County Public Safety Communications Center invokes KRS 61.878(1)(h) on the Sheriff's behalf. Here, as in the referenced open records decision, the PSCC articulates, again on the Sheriff's behalf, the harm to the Sheriff's ongoing investigation, as well as any enforcement action, that would result from the premature disclosure of primary evidence establishing critical elements of the offense that has never been revealed and that would impede the Sheriff's ability to assess the credibility of witnesses. And here, as in 09-ORD-143, our in camera review of the 911 recording and unredacted dispatch log confirms the PSCC's position. A copy of 09-ORD-143 is attached hereto and incorporated by reference. It is dispositive of the issues on appeal. We affirm the Boone County Public Safety Communication Center's partial denial of The Kentucky Enquirer's request for the reasons set forth in 09-ORD-143. Accord, 11-ORD-102.
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.
Distributed to:
Paul AlleyChris FergusonTom SchebenRobert D. Neace
Footnotes
Footnotes
1 The Sheriff's original denial of Ms. Kelly's request was premised on the nonexistence of a record answering her description. Recognizing that various names are used to describe "initiating documents utilized by the Commonwealth's law enforcement agencies, " 09-ORD-205, p. 6, and that these initiating documents are subject to public inspection with very limited exception, the Sheriff ultimately agreed to release the report. This limited exception was the subject of Cape Publications v. City of Louisville, 147 S.W.3d 731, 733 (Ky. App. 2003), declaring that although "police incident reports are matters of public interest and are public records . . . [that] the public should be allowed to scrutinize," KRS 61.878(1)(a) permits redaction of names, addresses, and other identifying information relating to victims of sexual offenses who "share a substantial privacy interest in the nondisclosure of their identities . . . ." Id. at 735, citing 02-ORD-36.
2 40 KAR 1:030 Section 6 provides: If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
3 The PSCC advances an additional argument in support of its position. That argument is premised on the privacy interests of the surviving family members. Because the PSCC satisfied its burden of proof relative to invocation of KRS 61.878(1)(h), we do not address its privacy argument.