Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Whitley County Police Department/911 Communications violated the Open Records Act in denying Corbin News Journal reporter Dean Manning's July 7, 2010, request for a copy of "all radio traffic to and from Whitley 911 and the CAD Report in the incident in which a child was injured by exploding fireworks and transported to the University of Tennessee Medical Center . . . on or about July 3, 2010." Neither 911 Communications' initial response nor its supplemental response state a legally sufficient basis for denying Mr. Manning access.
In its July 9 response to Mr. Manning's request, 911 Communications cited KRS 610.340(3) relating to juvenile court records and the obligation of peace officers who obtain juvenile court records in the course of their investigation of cases under Chapter 600 to 645 to use juvenile court records only for official purposes and to protect juvenile court records from disclosure. In supplemental correspondence directed to this office after the Corbin News Journal initiated this appeal, 911 Communications referenced the Health Insurance Portability and Accountability Act expressing concern for "the confidentiality of the juvenile, whose name and personal information is listed in the phone conversation and the CAD detail report." 911 Communications explained that the juvenile's "guardian was contacted and wishes to have no media attention [since she] feels her son has been through enough trauma. " While we appreciate the agency's attempt to comply with the requirements of the Open Records Act, and the importance it attaches to the juvenile's need to avoid further trauma, we cannot affirm its denial of Mr. Manning's request based on existing legal precedent.
In 09-ORD-164, the Attorney General held that Whitley County 911 Dispatch 1 violated the Open Records Act in refusing to honor an open records request for 911 calls because the calls were "exempt from the . . . Act and therefore [could] only be obtained by a subpoena." A copy of that decision is attached hereto. At page 3 of 09-ORD-164 we analyzed an open records decision from the previous year involving injuries sustained by a two year old child who was struck by a bat during t-ball practice. That decision "proceeded from the assumption that the 911 recordings were public records . . . but acknowledged '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 911 dispatch center] responded, but would almost certainly result in additional pain to his surviving family members.'" 08-ORD-188, p. 6. Accordingly, we approved redaction of those portions of the recordings in which the child's injury and medical condition were discussed. In so doing, we "attempt[ed] to strike a reasonable balance between the public's right to insure that [the 911 dispatch center was] 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." 08-ORD-188, p. 7. We contrasted 08-ORD-188 with 08-ORD-205 in which the 911 dispatch center "did not identify 'the nature and context of the privacy interests of the 911 caller' or 'describe any facts in this particular case that would support nondisclosure.'" Id.
Unlike our 2009 open records decision involving Whitley County 911 Dispatch, here Whitley County 911 Communications attempts to "satisfy its burden of proof that the privacy interests" of the injured juvenile "are superior to the public's interest in disclosure. " 09-ORD-164, p. 4 citing 08-ORD-205, p. 5. Nevertheless, we find its arguments largely unpersuasive. Specifically, we believe that 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.
So too are the restrictions on disclosure of "protected health information" by "covered entities" found in HIPAA. 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 noted, in 08-ORD-188 the Attorney General affirmed partial denial of 911 calls relating to a young child who sustained fatal injuries during a t-ball game on the basis of KRS 61.878(1)(a). We concurred with the 911 dispatch center that those portions of the recordings "in which the child's injuries and medical condition are discussed are of an intensely personal nature, and that disclosure of the records, without redaction, would further traumatize the child's surviving family members . . . [without] meaningfully advanc[ing] the public's right to know how [the 911 dispatch center] responded. " 08-ORD-188, p. 6. The record on appeal contains no evidence of a strongly substantiated privacy interest other than a statement attributed to the juvenile's mother. We are reluctant to defer to her wishes in light of the absence of any facts supporting her claim. Bearing in mind that the Attorney General required disclosure of the juvenile's name and age in 08-ORD-188, and that the facts of this appeal, to the extent any facts have been provided, are less compelling, we find that Whitley County Police Department/911 Communications must disclose unredacted copies of all radio traffic related to the July 3, 2010, incident along with an unredacted copy of the CAD report.
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.
Dean ManningCharles DavisJessica Taylor
Footnotes
Footnotes
1 We assume that, notwithstanding the differences in official title, Whitley County 911 Dispatch and Whitley County Police Department/911 Communications are one and the same.
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).