Request By:
Hon. Theresa L. Holmes
Lexington-Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Grant Winston, Assistant Attorney General
Mr. Bob Hensley of WTVQ-TV in Lexington, by letter to this office dated 24 April 1990, has appealed your refusal to make available taped recordings of the Purcell hostage crisis that took place earlier this year.
Factual Background
WTVQ Television made a written request of the Lexington-Fayette Urban County Government's Department of Law (Department) to provide access to the "tapes of conversations between the hostage negotiation's team of the Metro Police Department and the late Mike Purcell." Purcell, in April of this year, had taken hostage his estranged wife and two children inside a dwelling. The police established contact with Purcell during this crisis and for twelve hours negotiators had conversations with Purcell and others, during some of which they discussed tactics with the Emergency Response Unit troops. All of this was tape recorded. The ultimate resolution of the crisis came when Purcell apparently killed his estranged wife and himself, following a police assault upon thedwelling.
Opinion of the Attorney General
The Department refused WTVQ's request by letter dated 19 April 1990, and in doing so relied upon two parts of Kentucky's Open Records Law. KRS 61.870 etseq . The Department refused access to the tapes because the conversations included discussions of persons still living. KRS 61.878(1)(a) excepts information from disclosure requirements which is of "a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. " The Department also refused access because KRS 61.878(1)(j) excepts "public information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The enactments the Department had in mind are KRS 17.150(2)(b) and (c) which, respectively, allow the Department to withhold from public inspection reports which would disclose "information of a personal nature, the disclosure of which would not advance a wholesome public interest or a legitimate private interest," and "information which may endanger the life or physical safety of law enforcement personnel. "
The personal privacy considerations for those still living and the safety considerations of law enforcement personnel clearly are to be considered as exempting portions of the tapes because they are interspersed with conversations making reference to innocent third parties and discussions among police about tactics. 1 Still, the Department concedes that "there may be communications on the tape which are not subject to exclusion . . . ." KRS 61.878(4) mandates that public agencies shall separate and make available the non-excepted material. This the Department must do despite its reliance upon KRS 61.872(5) which excuses agencies from the "unreasonable burden" of "producing voluminous public records." Since the request was for only those portions of conversations in which Purcell himself was a participant, and since excepted information can properly be omitted from even those portions, the remaining non-excepted information that must be produced should not prove to be so "voluminous" to produce that doing so would constitute an "unreasonable burden. "
As required by statute, a copy of this opinion is being sent to Mr. Bob Hensley who requested it. Pursuant to KRS 61.880(5), either or both of the parties may appeal this opinion to the appropriate circuit court.
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