Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Oldham County Dispatch ("OCD") violated the Open Records Act in denying Michael Smith's January 30, 2018, request for copies of records relating to incidents at a certain residence in LaGrange, Kentucky. For the reasons stated below, we find that OCD committed a procedural violation of the Act, but did not substantively violate the Act by withholding the records under the circumstances presented.
Mr. Smith's letter, addressed to Director Tim Kehl, requested copies of the following:
. Records of all 911 calls for service to [residential address omitted] from August 1, 2006 to present
. Records of all incident or other reports filed in association with [residential address omitted] from August 1, 2006 to present
On January 31, 2018, OCD responded:
Your request is denied pursuant to KRS 61.878(1)(a) as these records contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The office received Mr. Smith's appeal on February 26, 2018.
We find, as a preliminary matter, that OCD's initial response to Mr. Smith failed to comply with KRS 61.880(1), which requires any agency response denying access to public records to include "a brief explanation of how the exception applies to the record withheld. " This explanation must "provide particular and detailed information," not merely a "limited and perfunctory response." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A response that fails to identify in any way the records withheld does not comply with the requirements of KRS 61.880(1). 14-ORD-133. Therefore, OCD's insufficient response constituted a procedural violation of the Open Records Act.
On March 1, 2018, Oldham County Attorney John K. Carter submitted a response to Mr. Smith's appeal. This response cites pertinent case law and supplies the information that was lacking in the initial response: "The only OCD record pertaining to the property is a 911 call from the victim of domestic violence 'in progress' and a CAD [Computer Aided Dispatch] written record of the call."
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dep't of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In the present appeal, the privacy interest is that of a 911 caller seeking police assistance in a domestic violence situation.
A copy of the disputed records has been provided to this office by the Oldham County Attorney for in camera review, which we deem to have been submitted pursuant to KRS 61.880(2)(c). Both the audio recording and the CAD report consist of personal information that would be particularly sensitive in a domestic violence context, including the identity of the caller, the reported conduct of the alleged perpetrator, the persons living in the residence, and the presence or absence of weapons in the home. The records do not contain any events occurring after the dispatch.
In Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 785), the Kentucky Court of Appeals held that the Berea City Police Department properly invoked KRS 61.878(1)(a) to withhold a 911 recording made by a family member reporting alleged verbal threats of domestic violence. Weighing the antagonistic interests as set forth in Ky. Bd. of Examiners and Zink, supra, the court reasoned:
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 ? retaliation, harassment, or public ridicule.
Bowling, 37 S.W.3d at 788 (emphasis added).
The Bowling case does not establish a "blanket" exemption for all 911 records under KRS 61.878(1)(a). 09-ORD-164. In prior appeals, we have distinguished Bowling on its facts where the 911 tapes did not involve an allegation of domestic violence. See, e.g. , 04-ORD-161 (call reporting a student with a medical problem on a school bus); 06-ORD-230 (calls relating to an airplane crash). In this instance, however, we find no significant distinction between this appeal and Bowling , since the competing public and private interests are identical to those at issue in that case; nor is there any indication in the record of any facts or events that would otherwise affect the balance of the interests.
We accordingly find that the heightened privacy interest of the 911 caller in this domestic violence situation outweighs the public interest in disclosure of the records. Therefore, we conclude that Oldham County Dispatch did not substantively violate the Open Records Act by withholding the audio recording and CAD report pursuant to KRS 61.878(1)(a).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.