Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Louisville Metro Police Department did not violate the Open Records Act in partially denying Kevin Crooks' April 30, 2012, request for a copy of "the 911 dispatch tape for [his clients'] collision report." 1 LMPD provided Mr. Crooks with a copy of the 911 tape but redacted "the names, home addresses and home phone numbers, and the private cell phone numbers of the individuals that reported the incident . . . under KRS 61.878(1)(a) based on the personal privacy interest of the callers. " In support, LMPD cited 04-ORD-161 requiring disclosure of a 911 tape but recognizing the caller's superior privacy interest in nondisclosure of identifying information.
On behalf of Mr. Crooks, Dustin Bell initiated this appeal from LMPD's partial denial of his colleague's request asserting that LMPD "failed to satisfy its burden of proof that the privacy interests of the callers are superior to the public's interest in disclosure. " Noting that "[t]he facts of the accident are in dispute, and [his] clients want to speak to witnesses," he analogized the issue on appeal to the issue presented in 08-ORD-205. In 08-ORD-205, the Attorney General rejected agency invocation of KRS 61.878(1)(a) to authorize nondisclosure of a 911 tape "[i]n the absence of . . . particularized proof relative to the nature of the privacy interest of the caller involved . . . ." We find this appeal is more closely akin to 04-ORD-161 than 08-ORD-205 and therefore affirm LMPD's partial denial of Mr. Crooks' request.
Our decision turns on the fact that LMPD disclosed the requested 911 tape and redacted only identifying information relating to the individuals who placed the calls. LMPD did not redact identifying information from tapes as a matter of policy but because, on the particular facts presented, the privacy interests of the individuals placing the calls outweighed the minimal open records related public interest served by disclosure. The latter interest is premised on the public's right to monitor the actions of the LMPD and, in particular, its emergency 911 system, in properly executing the statutory duty "to receive 911 calls . . . and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public service agencies." KRS 65.7621(17). "Mindful that the policy of disclosure is purposed to subserve the public interest, . . . that [LMPD] has in this case effectually promoted the public interest [by releasing the 911 tapes, ] . . . and that there is a countervailing privacy interest, here strongly substantiated, we hold that further disclosure of information contained in the public record would . . . constitute a clearly unwarranted invasion of personal privacy. "
Kentucky Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., 826 S.W.2d 324, 328-329 (Ky. 1992).
This office reached the same conclusion in 06-ORD-230. There, the requester sought access to recordings of 911 calls placed by individuals who observed the 2006 crash of Comair Flight 5191 in Lexington, Kentucky. The Attorney General determined that the open records related public interest in monitoring the conduct of 911 dispatchers and emergency responders was adequately served by disclosure of redacted copies of the tapes. In reaching this conclusion, we recognized the propriety of redacting the callers' names and cell phone numbers, personal information in which they had a strongly substantiated privacy interest, "to protect them from unwarranted invasions of their privacy. " 06-ORD-230, p. 9. Here, as in 06-ORD-230, there has been no previous disclosure of the callers' identities, and no argument can be advanced that their privacy interests are correspondingly reduced. Compare,
Marshall County E-911 Division v. Paxton Media Group, LLC, 2009 WL 153206 (Ky. App. 2009) 2 and 08-ORD-205.
Conversely, Mr. Bell's interest in interviewing the callers to pursue his clients' legal claim "cannot be said to further the principal purpose of the Open Records Act. "
Zink v. Commonwealth, Department of Workers' Claims, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink , the requester contested the redaction of identifying information on workers compensation forms disclosed to him by the Labor Cabinet which he obtained for the purpose of disseminating information to injured workers regarding their legal rights under workers compensation statutes. The court characterized the interest supporting disclosure "in this instance [as] nominal at best" since "disclosure would not in any real way subject agency action to public scrutiny," and concluded that the nominal public interest was inferior to the privacy interest. Id. The competing public and private interests at issue in the appeal before us are similar. Disclosure of identifying information relating to the callers will not advance the public's right to know how LMPD discharged its statutory duties and the callers' "time-honored right to be left alone," which the court recognized in Zink , should not be disturbed merely because they reported the accident to the appropriate agency for emergency response. Zink at 829. We therefore affirm LMPD's partial denial of Mr. Crook's open records 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.
Distributed to:
Dustin BellSharon L. KingBrianda A. Rojas
Footnotes
Footnotes
1 A copy of the collision report was attached to Mr. Crooks' request.
2 Marshall County E-911 Division v. Paxton Media Group, LLC is an unpublished opinion rendered on January 23, 2009, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).