Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Newport violated the Open Records Act in denying the February 28, 2013, request for "all accident reports from the Newport Police Department . . . [from] 2/21/13 - 2/27/13" submitted by Capitol Radio Traffic Systems, LLC. That denial was based on the city's position that Capitol Radio, which qualifies as a newsgathering organization within the meaning of KRS 189.635(8), under the rule announced in Capitol Resources Corporation 1 v. Department of Kentucky State Police , 2 2007 WL 2332716 (Ky. App.) as applied in 13-ORD-025, 3 "is using the reports for a commercial purpose" in contravention of KRS 189.635(6). Capitol Radio counters that it is a "national news organization that uses accident reports only to publish and broadcast the news, and not for any commercial purpose. " Both the city 4 and Capitol Radio 5 submit affidavits supporting their position. Those affidavits are wholly inconsistent and entirely irreconcilable. Mindful, as the court was in Capitol Resources Corporation , above at 7, of the "restraints and prohibitions against abridging" a free press, we resolve this dispute in favor of Capitol Radio Traffic Systems, LLC. The direct proof submitted by Capitol Radio is sufficient to support its position that its use of accident reports obtained under KRS 189.635(8) is noncommercial and to refute the indirect proof of commercial use submitted by the city. Having so concluded, we remind the parties that KRS 61.8745 permits recovery of damages in an amount three times greater than that which "would have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated" as well as attorney's fees, costs, and "any other penalty established by law," 6 and that direct proof of misuse of accident reports can and should be presented to the courts.
In 13-ORD-025 (copy enclosed) , this office concluded that Capitol Radio is a newsgathering organization within the meaning of KRS 189.635(8) and that the City of Newport improperly denied its requests based on the city's position that Capitol Radio is not a newsgathering organization. At note 2 of that decision, we observed:
Although the issue is not before us, the propriety of the city's denial also turns on Capitol Radio's intended use of the reports. As the court observed in Capitol Resources , above, "[a]lthough Capitol [Resources] is a newsgathering organization, under KRS 189.635(8), it is not entitled to the requested accident reports unless it intend[s] to use them solely for the purpose of publishing or broadcasting the news and not for a commercial purpose. " Id. at 8. "[M]ere publication or broadcast of the news and its monetary return [through, for example, subscriptions] does not render it a commercial purpose. " Id. The relevant inquiry is, instead, whether "the request [is] in furtherance of the publication of the news or some unrelated activity," id. at 9, such as the sale of the reports to subscribers to facilitate solicitation of accident victims.
We acknowledged that "[i]t remains for the city and Capitol Radio to resolve the issue of Capitol Radio's intended use of the reports and, if Capital Radio is dissatisfied with that resolution of the issue, to pursue a separate appeal." 13-ORD-025, note 2.
The City of Newport did not appeal 13-ORD-025 but accepted the challenge "to prove its suspicion that Capitol Radio's intended use of the reports is a commercial one, thus justifying its refusal to release the reports," 13-ORD-025, p. 5, by mailing counsel for Capitol Radio a list of 14 interrogatories, a request for production of documents, and four requests for admissions. Although it declined to respond in full to what it characterized as the city's "full-blown, litigation-type discovery," Capitol Radio's President Joel W. Harris, submitted an affidavit amplifying on Capitol Radio's use of accident reports and a CD containing examples of its programming, including a number of transcribed "Traffic Education Reports," as proof of how it uses accident reports to broadcast the news. Mr. Harris affirmed, under oath, that:
. Capitol Radio provides over 1,000 live traffic news reports and briefs each week to radio stations in Boston, New York, Newark, Hartford, Washington, Indianapolis, Nashville, Richmond, Hampton Roads, Atlanta, Philadelphia, Manchester, Jacksonville, Miami, Tampa, Fort Lauderdale, Fort Myers, Fort Pierce, and Louisville;
. Capitol Radio utilizes traffic accident reports required by state law enforcement to produce such content;
. Capitol Radio is a broadcast news network and does not operate any paid subscription service of any sort for any person or any reason;
. Capitol Radio has not and does not, directly or indirectly, use traffic reports for any commercial purpose.
. Capitol Radio has no knowledge of the use of any traffic accident report by any person for a commercial purpose and would refer to law enforcement any person it knew to be using reports improperly; and
. Capitol Radio does not, has not, and will not obtain any remuneration, direct or indirect, for Capitol Radio's use and/or publication of information derived from accident reports, except to the extent that Capitol Radio receives remuneration for publishing the news.
Mr. Harris reaffirmed that Capitol Radio is a "national, Florida-based provider of daily, live AM and PM traffic reports on radio stations in markets throughout the United States" in an affidavit submitted to this office as part of Capitol Radio's appeal. Additionally, he provided "Network Localities and Demographic Information" for each of Capitol Radio's affiliates that included call letters, coverage maps, and rankings.
The city ultimately rejected Capitol Radio's claim that its intended use of the requested reports was noncommercial based on the following:
. Capitol Radio failed to produce "at least five detailed accident reports that it provided to the Newport radio station, " to whom they were provided, and the dates they were provided;
. the city's attempts to contact by telephone the local radio station Capitol Radio claims to serve, WCND 940 AM, were unsuccessful and the numbers either disconnected or no longer in service;
. the recorded disc of "live time accident reporting" provided by Capitol Radio "are at least a week old . . . [and] cannot be us[ed] for live time accident reporting though they are "allegedly used for producing" public service announcements;
. Capitol Radio produced several such PSA's but provided no PSA's "that encompass the area, including Newport, served by WCND."
The city emphasized that, whereas it can verify that the Cincinnati Enquirer and local radio and television stations actually publish or broadcast the news, it has been unable to do so with respect to Capitol Radio, and Capitol Radio "offered no proof . . . that it actually publishes or broadcasts these PSA's."
The city acknowledged that its determination that Capitol Radio's use of accident reports is commercial was heavily influenced by the affidavit of Lieutenant Brian Valenti, Covington Police Department. Lieutenant Valenti, who serves as the department's records custodian, affirmed under oath that:
. Since November 2012, when the Police Department began providing Capitol with weekly traffic accident reports, no other outside person or organization has requested or received access to the Police Department's traffic accident reports.
. On February 4, 2013, I became aware that a woman involved in a traffic accident in Covington on January 29, 2013 had received calls from various third parties, including an attorney, a chiropractor, and a litigation funding company.
. On February 21, 2013, I fulfilled a weekly request for traffic accident reports from Capitol. Capitol's runner picked up the reports that day.
. In fulfilling Capitol's February 21, 2013 request, I included an accident report from September 2012, which was taken by the Taylor Mill Police Department for a traffic accident involving my daughter that occurred in Taylor Mill, Kentucky. I altered the city of occurrence and report number to match a Covington Police Department report. I also changed my daughter's contact number to my cell phone number. None of the other information was changed.
. On February 21, 2013, I received a phone call at 2008 hours from an individual soliciting for injury attorneys originating from (859) 443-2644. 7 I was able to record all but approximately the first 30 seconds of the conversation. The caller referenced my daughter's accident.
Lieutenant Valenti expressed the opinion that:
[T]here is no way that anyone received the information about my daughter's accident from any source other than the report that Capitol Radio received on February 21, 2013. While my daughter was actually involved in an accident in September 2012, my cell phone number was not listed on the original report. In addition, my daughter's telephone number was incorrect on the original report.
Further, he expressed the belief that Capitol Radio "is selling or otherwise providing information gathered from the Police Department to third parties in violation of KRS 189.635(8)."
By letter dated March 22, 2013, Mr. Harris categorically denied that Capitol Radio communicated, directly or indirectly, with any attorney in Kentucky, or provided to any attorney accident reports obtained from the city. Referencing ethical prohibitions on attorney solicitation, Mr. Harris requested the name of the individual who contacted Lieutenant Valenti, using records or information allegedly provided by Capitol Radio, for the purpose of "tak[ing] further steps with the Kentucky Bar Association." On appeal, Capitol Radio noted that the city "gave no credence to the sworn testimony of Mr. Harris," and the proferred examples of its broadcasts and publications demonstrating how it uses accident reports, accepting instead Lieutenant Valenti's opinion that Capitol Radio must be using accident reports for a commercial purpose without considering "whether the information could have been received through other means."
In supplemental correspondence, Capitol Radio disputed the city's suggestion that WCND 940 AM may not exist, observing:
A simple Google search for these call numbers verifies the existence of the station, which is branded "La Explosiva." The station's website is located at http://www.laexplosivaradio.com/. The station is also listed on the website of its owner, the Birach Broadcasting Corporation, at http://www.birach.com/wcnd.htm.
Capitol Radio's live Spanish-language traffic reporting content can be heard on La Explosiva 10 times per day. Capitol Radio has not yet begun producing Public Service Announcement-style reports in this region because it has not yet gained access to sufficient vehicle accident reports.
Capitol Radio again produced a CD containing live reports to support its position.
As the Court of Appeals noted in Capitol Resources , above at 9, KRS 61.880(2)(c) and KRS 61.882(4) assign the burden of proof to the City of Newport to support its denial of Capitol Radio's requests. While Lieutenant Valenti's affidavit is evidence that Capitol Radio may have used an accident report for a commercial purpose, that evidence alone is not sufficient, given the subsequent material provided by Mr. Harris, for the city to meet its burden of proof in this case. Furthermore, the city's inability to contact WCND 940 AM by telephone, or to obtain from Capitol Radio detailed accident reports or PSA's that Capitol Radio provided to WCND 940 AM, does not constitute evidence sufficient to meet its burden of proof that Capitol Radio intended to use the accident reports it requested on February 28 for a commercial purpose. Conversely, Mr. Harris has affirmed under oath, that Capitol Radio "does not, has not, and will not directly or indirectly, by any means whatsoever obtain remuneration for [its] use and/or publication of information derived from any accident report (except to the extent that Capitol receives remuneration for its publication of the news)," producing multiple CDs containing broadcasts and PSA's, network locality and demographic information, and coverage maps to support this portion. The city's inferences, drawn from Lieutenant Valenti's affidavit and the difficulty it encountered in verifying that Capitol Radio broadcasts the news in the Newport region, are not sufficient to overcome direct proof submitted by Capitol Radio. Should the city obtain direct proof of commercial use of accident reports, its recourse lies in KRS 61.8745.
In light of our determination that Newport has not met its burden to prove that Capitol Radio's use of accident reports is commercial, and that, as such, the city's denial of its February 28 request was improper, we refer the parties to 13-ORD-030 (enclosed) . Although the Attorney General did not address the question of Capitol Radio's intended use of accident reports in that decision, we concluded that if that use was, in fact, noncommercial, Capitol Radio must be provided with unredacted copies of accident reports. 8 A copy of that decision is attached hereto and incorporated by reference. The city's reliance on
Kentucky New Era v. City of Hopkinsville, 2012 WL 1365863 (Ky. App.) is misplaced not only because that opinion is nonfinal 9 but because the court's analysis in that case proceeded under KRS 61.878(1)(a) and not, as here, KRS 189.635(5) and (8), "requiring disclosure of unredacted copies of accident reports to all named individuals or entities including newsgathering organizations solely for the purpose of publishing or broadcasting the news." 13-ORD-030, p. 4; see also 02-ORD-19.
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:
Stephen J. MattinglyThomas CollinsAmy B. AbleRobert E. List
Footnotes
Footnotes
1 Capitol Radio, the complainant in this appeal, emphasizes that it is "in no way associated or affiliated with Capitol Resources," and that the "similarity in names is coincidental."
2 As we observed at note 1 of 13-ORD-025, Capitol Resources Corporation v. Department of Kentucky State Police is an unpublished opinion rendered on August 3, 2007, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).
3 13-ORD-025 was not appealed to the circuit court and therefore has the force and effect of law. KRS 61.880(5)(b).
4 February 26, 2013, affidavit of Lieutenant Brian Valenti, Covington Police Department.
5 April 15, 2013, affidavit of Joel W. Harris, President of Capitol Radio Traffic Systems, LLC.
6 KRS 189.993(12) establishes additional penalties for violations of any provision of Chapter 189 for which no other penalty is provided.
7 Our attempts to reach the caller at this number were unsuccessful. An automated message confirmed the telephone number but did not identify "the individual soliciting for injury attorneys."
8 Capitol Radio has indicated that it will accept copies of accident reports after the telephone numbers of the parties are redacted.
9 Kentucky News Era, Inc. v. City of Hopkinsville, 2012-SC-290-DG (Disc. Rev. granted 12/12/2012).