Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jefferson County Metro Government-MetroSafe violated the Open Records Act in denying records requests submitted by Courier-Journal staff writer Jessie Halladay and WHAS-11 reporter Mark Hebert on July 23, 2008, for recorded 911 emergency calls relating to the July 22, 2008, incident at Springdale Community Church in which a two year old child was struck by a bat during a t-ball practice. For the reasons that follow, we affirm Metro Government-MetroSafe's denial of access to those portions of the recorded 911 calls in which the child's medical injuries and condition were discussed, but find no support in existing legal authority for any additional redactions.
In nearly identical responses issued on July 28, 2008, Metro Government --MetroSafe denied these requests on the basis of KRS 61.878(1)(a) and KRS 61.878(1)(k), incorporating provisions of federal law codified as the Health Insurance Portability and Accountability Act, 45 C.F.R, Part 164. On August 5, The Courier-Journal initiated an appeal, questioning Metro Government- MetroSafe's reliance on the cited exemptions and asserting that the agency "has not met, and cannot meet" its burden of proof relative to their invocation. On August 6, WHAS-11 initiated a similar appeal, arguing that "there is no unwarranted invasion of privacy and there are no improper disclosures under federal HIPAA guidelines," and suggesting that the agency "is being overly cautious and looking for reasons NOT to release these types of requested dispatch tapes. " (Emphasis in original.)
In supplemental correspondence directed to this office following commencement of these appeals, Metro Government-MetroSafe amplified on its position through Assistant Jefferson County Attorney Terri A. Geraghty. Noting that both requesters were afforded access to the dispatch event summary that included the time of "the accepted calls, dispatch time, response time, and ambulance on scene time data," and that the agency offered to provide Mr. Hebert with "an edited tape of the 911 dispatch calls with the names, age, address, medical condition, and medical injury information deleted," Ms. Geraghty advised that MetroSafe is "the public safety answering point for Metro Government [that] handles the receipt and dispatch of 911 medical emergency calls for Louisville Metro EMS." She further advised that Metro Government has designated the latter as a "health care component" pursuant to 45 C.F.R. 164.105(a)(2)(iii)(C) in accordance with Metro Government's status as a "hybrid entity" as defined in 45 C.F.R. 164.103. She characterized "information as to the location where the individual was injured, information as to injuries the individual sustained, and information as to the medical condition of the individual," which the recordings contained, as "'protected health information' under HIPAA and nondisclosable."
Ms. Geraghty also invoked KRS 61.878(1)(a), asserting that "the deceased child's immediate relatives also have a reasonable expectation of privacy that needs to be considered." She observed:
The events surrounding the injury and subsequent death of this small child were heart wrenching. It would be reasonably expected by the family that they would never have to relive these events with the media or public. It is impossible to imagine what emotional impact the public airing of these tapes would have on the child's family and loved ones.
Noting that this office "has recognized that surviving family members enjoy a privacy interest that must be considered when analyzing the release of agency records," she concluded that the public's interest is served, and those privacy interests protected, by disclosure of the dispatch event summary and copies of the tapes from which personal information "such as the name, age, medical condition, and nature of the individual's injury," is redacted. Having reviewed the recordings in dispute under authority of KRS 61.880(2)(c), 1 we affirm Metro Government-MetroSafe's denial of those portions of the recordings in which the child's injuries and medical condition are discussed, but find no support in existing legal authority for any additional redactions.
In 08-ORD-166, this office "addressed the issue of the intersection between HIPAA and the state's open records law," and concluded that public agencies that are "covered entities" must disclose health information, under the "required by law" exception to HIPAA, to the extent that disclosure is required by the Kentucky Open Records Act. Adopting the position taken by the Ohio Supreme Court and the Texas Court of Appeals, the Attorney General opined:
Kentucky's Open Records Law, which in this context parallels Ohio's Public Records Law and Texas' Public Information Act, and is determinative of the issue of access under the "required by law" exception to HIPAA's Privacy Rule, declares that "[a]ll public records shall be open for inspection by any person," 2 and "exhibits a general bias favoring disclosure. " 3 In light of the legislative recognition "that free and open examination of public records is in the public interest [,] . . . the exceptions provided for by KRS 61.878 or otherwise provided by law [must] be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
08-ORD-166, p. 6, 7. A copy of 08-ORD-166 is attached hereto and incorporated by reference. In the present context, KRS 61.878(1)(a) is the "controlling law" in the resolution of the issue of access to the disputed 911 tapes under the "required by law" exception to the HIPAA Privacy Rule.
As Metro Government-MetroSafe correctly observes, 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. Most recently, we applied this analysis to a request for autopsy photographs submitted by the Kentucky Innocence Project to the Justice and Public Safety Cabinet's Medical Examiner on behalf of an individual convicted of murdering the subject of the photographs. At page 4 of 05-ORD-075, we observed:
In 00-ORD-162 this office affirmed the Barren County Sheriff's Department's reliance on KRS 61.878(1)(a) in denying, inter alia, death scene photographs taken in the victim's residence in deference to the privacy interests of the victim's surviving family members. Citing New York Times Company v. National Aeronautics and Space Administration, 782 F.Supp. 628 (D.C. Cir. 1991) (recognizing privacy interests of families of space shuttle Challenger explosion victims in voice recordings of moments leading up to explosion) , State v. Rolling, 1994 WL 722 891 (Fla. Cir. Ct.) (recognizing a right of privacy for relatives of murder victims in photographs of victims' bodies), and OAG 90-56 (recognizing privacy rights of surviving victims of twelve hour hostage siege that culminated in murder/suicide in tape recording of hostage negotiation), we held that the public's interest in insuring that the sheriff properly executed his statutory duty was satisfied by disclosure of the bulk of his investigative file, but that the death scene photos, were "particularly sensitive records warrant[ing] protection under KRS 61.878(1)(a)."
We thereafter concluded that "the public's interest in insuring that the Medical Examiner properly discharged his statutory function [was] satisfied by disclosure of the written autopsy report, and that disclosure of the autopsy photographs constitut[ed] a clearly unwarranted invasion of the personal privacy of the victim's surviving family members," id., noting that the position we took "comports with our decision in 00-ORD-162." Id. at 7. A copy of 05-ORD-075 is attached hereto and incorporated by reference. Citing National Archives and Records Administration v. Favish, 541 U.S. 157 (2004) and Katz v. National Archives and Records Admin., 862 F.Supp 476, 485 (D.D.C. 1994).
In addition to the protected status of the death scene photographs at issue in 00-ORD-162, this office recognized that the recording of the 911 call placed by a surviving family member warranted protection under KRS 61.878(1)(a). At page 11, we reasoned:
Under that 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, these records clearly qualify for exclusion. Mr. Smith was murdered by an intruder in his home while his wife and children slept in the bedrooms above. The children were left alone in the home with the body of their murdered father while the murderer abducted Mrs. Smith, forcibly entered another residence, perpetrated additional crimes against her, and committed suicide in her presence. It is safe to say that disclosure of records [that included recorded 911 transmissions relating to the crime] 4 identified above will further traumatize these victims. 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, we nevertheless find that these particularly sensitive records warrant protection under KRS 61.878(1)(a).
Compare, 06-ORD-230 (holding that surviving family members' privacy interest in nondisclosure of 911 calls placed by observers on the morning of the crash of Comair Flight 5191 did not outweigh the public's interest in ascertaining whether the Division of Police, and its emergency 911 system, properly executed their statutory duties); see also, 04-ORD-161 (holding that the public's interest in the contents of a 911 call placed by a student on a school bus, in response to a medical emergency on the bus, outweighed the student's privacy interest) .
We concur with Metro Government-MetroSafe in the view that those portions of the recorded 911 emergency calls relating to the July 22 incident at Springdale Community Church in 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. Contrary to Mr. Hebert's view, the recordings consist of a great deal more than: "We need an ambulance at the baseball fields on Springdale Rd. A little boy has been hit in the chest with a baseball bat and is not responding to our efforts to give him CPR." Pursuant to KRS 61.880(2)(c), this office is statutorily foreclosed from disclosing the content of the recordings. Our review of the recordings does, however, confirm 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 Metro Government-MetroSafe responded, but would almost certainly result in additional pain to his surviving family members. Bearing in mind that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity," we find that Metro Government-MetroSafe, will "effectually promote the public interest in regulation" by releasing a copy of the recordings of the 911 emergency calls from which discussions of the child's injuries and medical condition have been redacted. Kentucky Board of Examiners of Psychologists, above at 328.
In sum, we affirm Jefferson County Metro Government-MetroSafe's denial of access to only those portions of the disputed 911 recordings in which the child's medical condition and injuries are discussed. Resolution of this issue turns on the application of KRS 61.878(1)(a), as the "controlling law" under the "required by law" exception to the HIPAA Privacy Rule, to those recordings. Accord, 08-ORD-166. In light of our previous decisions in 00-ORD-162 and 05-ORD-075, and authorities cited therein, we find that the recordings do, in fact, contain information of a personal nature in which there is a strongly substantiated privacy interest belonging to the child's surviving family members. We do not, however, find that the privacy exception extends protection to the child's name and age or the address to which the emergency vehicle was dispatched. Metro Government-MetroSafe thus violated the Open Records Act in initially denying Ms. Halliday's and Mr. Hebert's request in their entirety. With the exceptions noted, we hold that Metro Government-MetroSafe must disclose the recordings of the 911 emergency calls. In so holding, we attempt to strike a reasonable balance between the public's right to insure that Metro Government-MetroSafe is properly discharging its statutory functions and the privacy rights of the surviving family members of the young child whose injuries and subsequent death prompted those calls.
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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
2 KRS 61.872(1).
3 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
4 At page 10 of 00-ORD-162, the Attorney General characterized this recording as "emotionally charged, documenting almost contemporaneously with the crimes, the victim [/surviving family member's] reactions." We concluded that "[s]uch highly emotional utterances are clearly of such a personal nature as to overcome the public's interest in disclosure. "