Request By:
Ms. Theresa L. Holmes
Corporate Counsel
Lexington Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Dan Dickson, NewsChannel 36 reporter, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to obtain a copy of an audio tape of a 911 distress call in which the caller sought police assistance in a potential domestic dispute. Mr. Dickson made this request by letter dated October 19, 1990. Mr. Dickson states that he is not interested in using the caller's name, address, or telephone number, but merely needs the "voice in the night" for a news production involving a series on spouse abuse.
In your letter of denial dated October 22, 1990, you specifically relied upon the statutory exceptions of KRS 61.878(1)(a) and (g) in denying the request. Your denial letter also provided the following explanation of how the two statutory exceptions applied to the record (tape) withheld:
In the tape you request, a caller identifies herself and the participants in a potentially dangerous domestic violence incident. No arrests were made as a result of the call, and you assert that all identifying information will be removed from the tape. Voices are, however, identifiable, and even with names and addresses removed, the identity of callers could be determined. Further, release of these tapes could chill calls by some individuals who would not report a crime for fear that their voices would be broadcast on radio or television. Both of the exemptions noted above apply to this situation. The Attorney General has taken the position that the public's right to know must be balanced against the individual's right to privacy. OAG 76-568. In this matter, the Government cannot justify release.
While your intent to use the tape in a timely story on spouse abuse may be laudable, the reasons for a request is (sic) immaterial in the determination of whether the record is open for inspection or not. A record cannot be open to inspection for one purpose but closed for another. See OAG 78-473 and 82-394, copies attached.
Mr. Dickson filed an appeal of this denial by letter dated October 22, 1990, and "faxed" to this Office on the same date. In this appeal letter, Mr. Dickson states in part as follows:
Lexington Police Lieutenant Jerry Wright and Detective Gay Tincher allowed me to listen to a recording of a telephone call made by a woman to the Police Communications room several weeks ago.
The woman asked that a police car be dispatched to her home because her brother-in-law was threatening to harm her sister.
I would like to use a portion of that distress call in my series to illustrate the many domestic violence calls that are phoned into the police.
I am not interested in using the woman's name, address, phone number, location of the city or the date of the call. The police told me that, as it turned out, no violence took place, no crime had been committed and no report taken.
You responded to this appeal by letter dated October 29, 1990, and provided additional argument and authority in support of your letter of denial. In this letter, you state that the officer who permitted Mr. Dickson to listen to the tape was not the custodian of the tape and erred when he permitted Mr. Dickson to listen to the tape before obtaining approval from the custodian of the tape. You state that this error should not waive the custodian's ability to deny a copy of the tape.
The undersigned Assistant Attorney General talked with you by telephone on several occasions. You indicated that the official custodian of police records is the Chief of Police for Lexington Fayette Urban County Government and that your October 22, 1990, denial letter was issued by you under his authority. Pursuant to KRS 61.880(2) and at my request you also allowed me to listen to the tape which was approximately four minutes in length.
OPINION OF THE ATTORNEY GENERAL
This open records appeal presents an unique situation for which there are no previous Attorney General Opinions directly on point. However, this Office is of the opinion that tape recordings of 911 telephone calls seeking police assistance may properly be exempted from inspection and copying pursuant to KRS 61.878(1)(a) and (g) based upon the reasoning which follows. Therefore, this Office opines that the Lexington Fayette Urban County Government has acted consistently with the provisions of KRS 61.870 to 61.884 in denying a copy of the public record (tape recording) sought by Dan Dickson.
This Office has previously rendered opinions holding that information contained in records of "ambulance runs" and "fire runs" are exempt from inspection and copying pursuant to KRS 61.878(1)(a). OAG 88-42, 86-25, 83-344, and 76-568. This Office is of the opinion that the reasoning contained within those opinions just cited are equally applicable to taped conversations or complaints received by law enforcement agencies from citizens seeking police assistance by placing 911 telephone calls.
In the instant case, providing a copy of the tape or even providing an edited version with the complainant's name and address deleted, would not prevent the possibility that the complainant could be identified by listening to her voice. This is especially true in the instant situation where Mr. Dickson proposes to use a portion of this telephone call in a television broadcast. It is simply not feasible to protect the complainant's identity if a copy of the audio recording of her voice is released. It is therefore our opinion that disclosure of the complainant's identity by providing a copy of the tape would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's identity would effectively chill many 911 telephone calls. See OAG 89-52. [Copy of opinion enclosed. ]
This Office also agrees that a copy of the tape may be denied pursuant to KRS 61.878(1)(g) which exempts from copying "correspondence with private individuals." The 911 telephone call by the distressed caller was essentially a complaint of potential spouse abuse which initiated a response or investigation by the police. However, this oral allegation or complaint did not result in a final written report or decision because no crime was committed and therefore no report made. In upholding a similar agency denial involving a verbal allegation of misconduct by a state police officer, this Office held as follows:
While, normally, the complaint which spawned the investigation and the report setting forth the final action taken by the public agency relative to the investigation are public records, in this particular situation an oral allegation rather than a written complaint initiated the investigation and there is no final written report or decision of the public agency pertaining to the investigation.
OAG 86-78, p. 4. [Copy of opinion enclosed. ]
This Office recently reaffirmed that oral allegations which initiate an investigation are exempt from public inspection pursuant to KRS 61.878(1)(g). OAG 90-58. [Copy of opinion enclosed. ] The situation presented in this open records appeal is substantially similar to the situations described in OAG 90-58 and 86-78 and therefore this Office is of the opinion that the tape is exempt from copying pursuant to KRS 61.878(1)(g).
This Office notes that the public record (tape) at issue has already been inspected by Dan Dickson as the result of an inadvertent release by a police officer who had access to the tape, although the police officer was not the custodian of the record. This raises the issue of whether this erroneous release of a record for inspection constitutes a waiver of the right to deny a copy of the record. In other words, the issue is whether Lexington Fayette Urban County Government is estopped from denying a copy of the tape because of the inadvertent release of the tape for inspection.
This issue is controlled by a previous opinion of this Office wherein it was held as follows:
Estoppel is not effected by inadvertent actions or mistakes but only by previous actions by which the contrary has been admitted, implied, or determined.
OAG 83-140, p. 2. [Copy of opinion enclosed. ]
This Office is of the opinion that public records which have been inadvertetly released for inspection by non-custodial persons with access to public records does not prohibit an agency from subsequently denying inspection or copying of the same record by the official custodian.
Dan Dickson may institute proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court of the district where the public record sought for inspection is maintained pursuant to KRS 61.880(5).