Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Whitley County E-911 Center violated the Open Records Act in denying Times-Tribune managing editor Samantha Swindler's September 24, 2009, request for "access to and a copy of the transcript of the 911 call made by Larry Wilson on July 31." For the reasons that follow, we find that under prior decisions of this office the E-911 Center has failed to meet its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) and KRS 17.150(2)(d).
Ms. Swindler's September 24 request on behalf of The Times-Tribune was addressed to a transcript of the telephone call, although she added: "If no transcript of the call exists, we request permission to listen to the audio recording of the call." In initially responding to Ms. Swindler's request, E-911 Center Trigg E-911 Supervisor Angelia Matney responded in a letter dated September 25, 2009: "This call is currently being used in a law enforcement action. Disclosure could harm the investigation by prematurely releasing the information. Therefore, pursuant to KRS 61.878(1)(h) and KRS 17.150(2)(d), we must deny your request."
Ms. Swindler initiated this appeal on October 13, 2009, stating as follows:
This was a 911 call made following a fatal shooting. Mr. Wilson, who made the call, has since been charged with murder, has been indicted by the grand jury, but has not yet seen the start of a trial.
?
The Times-Tribune is seeking clarification in this matter. Why were, for example, transcripts of Billy Gillispie's 911 call regarding his recent DUI arrest made public to state-wide media? How is the call in the Larry Wilson case different from the Gillispie issue?
In regards to KRS 61.878(1)(h), which states the records are not public until "enforcement action is completed or a decision is made to take no action," when is the "enforcement action" considered completed? After arrest, indictment, trial, or after all appeals are exhausted?
The response to this appeal was submitted on October 23, 2009, by Whitley County Attorney Paul K. Winchester, who advised:
The 991 [ sic ] call that is the subject of the request made by the Times-Tribune on September 25, 2009 is evidence in a current murder case in the Whitley Circuit Court styled "Commonwealth of Kentucky vs. Larry Neal Wilson", 09-CR-112. The Defendant in the stated case, placed a call to the Whitley County E-911 Center shortly after a fatal shooting occurred. The statements made by the Defendant within the call are being used in the ongoing investigation and criminal prosecution of this matter. Release of this information at this time would not only negatively impact the investigation but would also hamper the trial itself.
Therefore, pursuant to KRS 61.878(1)(h) and KRS 17.250(2)(d) , the Whitley County E-911 Center must deny the request at this time. However, once the matter is concluded, the requested information will be made available to the Times-Tribune.
Under the prior decisions of this office, we are compelled to find that the Whitley County E-911 Center has failed to meet its burden of proof in claiming the exceptions set forth in KRS 61.878(1)(h) and KRS 61.878(1)(l) (incorporating KRS 17.150(2)).
It is fundamental that a public agency claiming the application of KRS 61.878(1)(h) must be a "law enforcement agenc [y]" or an "agenc [y] involved in administrative adjudication." 95-ORD-95. By all appearances, the Whitley County E-911 Center is a "public safety answering point" ("PSAP") as defined in KRS 65.750(8), 1 but there is no indication that it is a law enforcement agency within the meaning of KRS 61.878(1)(h). It is possible for a PSAP to claim the law enforcement exception on behalf of another agency which has compiled the 911 call records as part of an investigation of a crime. See 09-ORD-143. In this instance, however, Whitley County E-911 has failed to do so, having neither identified the law enforcement agency conducting a criminal investigation nor presented any "particular and detailed information" from that agency about the harm it would suffer from disclosure of the records. 09-ORD-143, pp. 3-4. We therefore find our prior decision in 07-ORD-139 (copy attached) to be controlling as to KRS 61.878(1)(h), and hereby adopt it as the basis of our present decision on this issue.
With regard to KRS 17.150(2) , as incorporated into the Open Records Act by KRS 61.878(1)(l), we similarly find no indication that Whitley County E-911 is a "criminal justice agenc [y]," which alone would make KRS 17.150(2) applicable. Furthermore, we determined in 06-ORD-230 (copy attached) that 911 calls, even if they are maintained by a criminal justice agency, "cannot properly be characterized as intelligence or investigative reports" and therefore KRS 17.150(2) "is facially inapplicable" to them. 06-ORD-230, p. 9. We believe 06-ORD-230 is controlling on the KRS 17.150(2) issue and likewise adopt it as the basis for our decision herein.
We have no reason to doubt that some law enforcement agency is conducting an ongoing investigation and prosecution in connection with the subject of this 911 call, nor that the release of the record might indeed cause harm to that investigation or prosecution. Under the prior decisions of this office, however, a PSAP does not have standing to assert on its own behalf an exception to the Open Records Act that expressly is available only to law enforcement agencies; nor does a 911 recording fall within the scope of a statute protecting only intelligence or investigative reports maintained by criminal justice agencies. Accordingly, we must find that the Whitley County E-911 Center's denial of Ms. Swindler's request was in violation of the Kentucky Open Records Act.
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.
Samantha SwindlerAngelia MatneyPaul K. Winchester, Esq.
Footnotes
Footnotes
1 KRS 65.750(8) defines "public safety answering point" or "PSAP" as "a communications facility that is assigned the responsibility to receive 911 calls originating in a given area and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public safety agencies."