Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Hardin County 911 initially violated KRS 61.880(1) in failing to explain how KRS 61.878(1)(a) applied on the facts presented, but ultimately satisfied its burden per KRS 61.880(2)(c) to justify the withholding of the requested 911 recording on the basis of that exception. However, its reliance on KRS 610.340(1)(a) was misplaced.
Open Records Decision
The question presented in this appeal is whether Hardin County 911 violated the Open Records Act in denying Trey Crumbie's June 21, 2019, request, directed to Bryce Shumate, Chief Emergency Services Officer, Hardin County Government, for "an opportunity to inspect or obtain copies of public records that pertain to any and all 911 emergency calls in the area of Trappers Ridge Court that occurred from noon to 1[:00] p.m. on June 20, 2019." Notwithstanding procedural deficiencies in the agency's initial response, this office finds it ultimately satisfied its burden of justifying the withholding of the requested 911 recording on the basis of KRS 61.878(1)(a). However, KRS 610.340(1)(a), which Hardin County 911 belatedly invoked on appeal, is facially inapplicable on the facts presented.
By e-mail also dated June 21, 2019, Records Custodian Suzanne Roberts, Hardin County 911, notified Mr. Crumbie that his request was denied because "this record" is exempt based upon KRS 61.878(1)(a), as the public disclosure of the requested 911 recording "would constitute a clearly unwarranted invasion of personal privacy of the deceased's family;" and 61.878(1)(l), "as a public record the disclosure of which is made confidential by an enactment of the General Assembly-pursuant to KRS Chapter 610."
Hardin County 911's initial response lacked the specificity required under KRS 61.880(1), pursuant to which a "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 ." (Emphasis added). The "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996)(emphasis added);
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013); 15-ORD-003; 16-ORD-100; 17-ORD-179. "Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6)]," this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11 (citation omitted); 15-ORD-055. A "bare assertion" does not satisfy the burden of proof. 00-ORD-10, p. 11. Accordingly, the agency's unsupported statement that disclosure of the recording would constitute a clearly unwarranted invasion of privacy, without application to any specific facts or context, was merely an insufficient paraphrase of the statutory language; likewise, the agency failed to cite KRS 610.340(1)(a) or provide any explanation of how it applied to any record(s) being withheld until after this appeal was filed.
However, upon receiving notification of Mr. Crumbie's appeal, Hardin County Attorney Jennifer B. Oldham responded on behalf of Hardin County 911. Ms. Oldham first argued that KRS 61.878(1)(l), pursuant to which KRS 610.340(1)(a) is incorporated into the Open Records Act, is dispositive in this case. Without further context or explanation, she argued, "This 911 recording is part of the juvenile court record in case 18-J-715," and is therefore confidential per KRS 610.340(1)(a). This office disagrees based upon the plain and unambiguous language of that confidentiality provision. KRS 610.340 is entitled, "Confidentiality of juvenile court records ." (Emphasis added.) Specifically, KRS 610.340(1)(a) provides:
Unless a specific provision of KRS Chapters 600 to 645 specifies otherwise, all juvenile court records of any nature generated pursuant to KRS Chapters 600 to 645 by any agency or instrumentality, public or private, shall be deemed to be confidential and shall not be disclosed except to the child, parent, victims, or other persons authorized to attend a juvenile court hearing pursuant to KRS 610.070 unless ordered by the court for good cause.
(Emphasis added.)
In 10-ORD-161, this office was asked to determine whether the Whitley County Police Department/911 Communications violated the Open Records Act in denying a request for a copy of "all radio traffic to and from Whitley 911 and the CAD Report in the incident," during which a child was injured on a certain date by exploding fireworks. This office found the agencies' position that KRS 610.340(3) 1 removed the requested 911 recording (s) from application of the Open Records Act unpersuasive. Specifically, this office held:
. . . KRS 610.340(3) has no application to records generated by and for 911 Communications. By its express language, KRS 610.340(3) applies to juvenile court records. The radio traffic and CAD report relating to the injured juvenile at issue in this appeal are not juvenile court records, and the restrictions on disclosure of juvenile court records by peace officers, or any other public officer or employee identified in that statute, are therefore inapplicable.
10-ORD-161, p. 3 (emphasis added).
Notwithstanding the fact that Hardin County 911 relied upon a different subsection of KRS 610.340 than Whitley County did in 10-ORD-161, this office finds the reasoning of 10-ORD-161 equally controlling on the facts presented. The critical fact in both cases is that a 911 recording is not a "juvenile court record." Nor is a 911 recording generated "pursuant to KRS Chapters 600 to 645." Although the 911 recording here is now part of the record in a pending juvenile court proceeding, that fact does not alter the relevant analysis or enable Hardin County 911 to satisfy the threshold requirement for invocation of KRS 610.340. In other words, making the 911 recording part of the record in the juvenile court proceeding does not change its origin; it was not "generated pursuant to KRS Chapters 600 to 645." Rather, it was generated in the normal course of business and later segregated in connection with the related investigation or proceeding. Cf . 10-ORD-162 (KRS 61.878(1)(h) did not apply because the records were prepared independent of the ongoing criminal investigation, rather than "compiled in the process of detecting and investigating statutory or regulatory violations"); 19-ORD-025. Accordingly, this office finds the agency's reliance on KRS 610.340(1)(a) was misplaced.
The remaining question is whether Hardin County 911 was authorized to withhold the subject 911 recording per KRS 61.878(1)(a). In support of the agency's position regarding application of KRS 61.878(1)(a), Ms. Oldham cited
Bowling v. Brandenburg, 37 S.W.3d 785, 788 (Ky. App. 2000), which held the Berea Police Department properly invoked KRS 61.878(1)(a) to deny a request for a 911 recording where requester had allegedly threatened to kill his wife and other family members, prompting one of the family members to place the requested 911 call, 2 and 18-ORD-062. She also provided relevant facts, critical to a case-specific analysis like that required under KRS 61.878(1)(a), that were previously lacking from the record on appeal. "Without fully disclosing the contents of the call," she emphasized that "this call was from a young mother whose young child was dying and it is an audio record of the last moments of his young life." The recorded last moments of the caller's dying child, she argued, "is highly personal to the caller." The public's interest in the "efficiency and accountability of government, in the case of this 911 recording, can be determined by an examination of the written [Computer-Aided Dispatch ('CAD')] log." She noted the CAD provides which agencies responded, the agencies' response times, and whether life-saving measures were implemented. This office has confirmed that Hardin County 911 provided Mr. Crumbie with a copy of the CAD Report (minimal redactions not challenged here). Ms. Oldham also provided this office with a copy of the subject 911 recording per KRS 61.880(2)(c) and 40 KAR 1:030 Section 3 for in camera review.
The General Assembly has mandated that certain records are not open for public inspection, including those "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). 3 In
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. . . . [T]he circumstances of a given case will affect the balance[.]" (Citation omitted). The relevant "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . [T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." 902 S.W.2d at 829. 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." Id. See 06-ORD-084; 10-ORD-062; 12-ORD-227; 17-ORD-066.
Having engaged in a "comparative weighing of antagonistic interests," the Court in Zink determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying access to personal information contained in the injury report forms that private citizens had submitted. The privacy interests of the injured workers outweighed the interest of a lawyer seeking to solicit clients where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " Id . In so holding, the court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and while dissemination of unsolicited information to injured workers might serve the "broad public interest, " it "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829. The result in Zink hinged on the fact that disclosure of this inherently private information "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " The relevant public interest here -- namely, enabling the public to ensure that Hardin County Emergency Medical Services/Fire Department/Sheriff's Department properly discharged their duties upon receipt of the 911 call -- is heightened under tragic circumstances where a child was victimized and ultimately died. However, the intensely personal nature of the call, as in any domestic violence situation, including the potential involvement of the child victim's brother, also elevates the privacy interests of the surviving family members.
In Bowling , the court engaged in the balancing test set forth in Ky. Bd. of Examiners and refined in Zink , reasoning that "[r]eleasing 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; 18-ORD-062. In 18-ORD-062, however, the Attorney General found "no significant distinction" between the facts presented and Bowling , since the competing public and private interests were identical to those at issue in that case. Nor was there "any indication in the record of any facts or events that would otherwise affect the balance of the interests." 18-ORD-062, p. 4. The instant appeal does not involve a conventional domestic violence situation. Nevertheless, the competing interests are sufficiently analogous for the reasoning of that decision to be equally persuasive.
Significantly, the Attorney General has recognized on more than one occasion "that surviving family members may have a protectable privacy interest with respect to public records relating to a close relative's death." 08-ORD-188, p. 4; 05-ORD-075. Further, in 00-ORD-162 this office found the recording of the 911 call that a surviving family member placed was exempt under KRS 61.878(1)(a). Under the line of decisions "recognizing a victim's right of privacy in records relating to the crimes perpetrated against him or her depending on the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the victims of further disclosure, " the Attorney General held these records qualified for exclusion. 00-ORD-162. P. 11; 08-ORD-188. Compare 06-ORD-230.
"Acknowledging that the public has a cognizable interest in inspecting these records, since they document, in part, the Sheriff's Department's investigation into the crimes," in 00-ORD-162 this office nevertheless concluded "these particularly sensitive records warrant protection under KRS 61.878(1)(a)." See 15-ORD-192. In 08-ORD-188, this office recognized that portions of the 911 calls regarding the subject incident during which "the child's injuries and medical condition are discussed are of an intensely personal nature, and that disclosure of the recordings, without redaction, would further traumatize the child's surviving family members and therefore constitute a clearly unwarranted invasion of their personal privacy. " Our in camera review of the recordings in 08-ORD-188 confirmed "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 agencies] responded, but would almost certainly result in additional pain to his surviving family members." Id. , p. 6. Bearing in mind that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity," . . . this office finds that [Hardin County 911 . . .] "effectually promote[d] the public interest in regulation" by disclosing the CAD Report. Id .
KRS 61.880(2)(c) and 40 KAR 1:030 Section 3 prohibit us from disclosing the contents of the requested 911 recording. Having reviewed the recording, however, this office finds the privacy interests of the deceased child's family outweighs the interest of the public in the extremely personal and intimate last moments of the child's life, particularly where the recording ends upon the arrival of the first responding agency. There is no claim or suggestion that Hardin County 911 failed to properly discharge its duty in this case and only the words/actions of the dispatcher and the child's mother can be heard on the recording with clarity. Details included on the subject CAD Report, a copy of which Hardin County 911 ultimately provided to Mr. Crumbie and this office, adequately serve the principal purpose of the Act by, for example, outlining the relevant timeline and identifying the public agencies that responded upon receipt of the 911 call. Accordingly, this office affirms the ultimate disposition of Mr. Crumbie's request by Hardin County 911 on the basis of 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.
Footnotes
Footnotes
1 Pursuant to KRS 610.340(3):
The provisions of this section shall not apply to any peace officer, as defined in KRS 446.010, who is engaged in the investigation or prosecution of cases under KRS Chapters 600 to 645 or other portions of the Kentucky Revised Statutes. Any record obtained pursuant to this subsection shall be used for official use only, shall not be disclosed publicly, and shall be exempt from disclosure under the Open Records Act, KRS 61.870 to 61.884.
2 The Bowling Court adopted the reasoning of OAG 90-117 (holding that KRS 61.878(1)(a) authorized nondisclosure of requested 911 calls). However, in 94-ORD-133 this office expressly overruled OAG 90-117, reasoning that said opinion "predates the Kentucky Supreme Court's decision in [Ky. Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 824 S.W.2d 324 (Ky. 1992)]. After Board of Examiners , there can be no doubt that a policy of blanket exclusion of records, or entries on records, on the basis of KRS 61.878(1)(a) is generally impermissible." 94-ORD-133, p. 13; 12-ORD-138. "Given the status of OAG 90-117" when the Court issued Bowling , this office has consistently recognized, it "cannot be construed to authorize nondisclosure of all 911 calls in light of the Kentucky Supreme Court's holding in Board of Examiners, above , but instead requires a case-specific analysis." 07-ORD-141, p. 6 (original emphasis). See Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006)(reaffirming the "case-by-case analysis required by the outstanding law on the Open Records Act," and, in particular, KRS 61.878(1)(a), and holding that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent."). Compare Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2003); Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013).
3 In Ky. Bd. of Examiners, 826 S.W.2d at 327-328, the Kentucky Supreme Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." A determination relative to KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id .