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 Shelby County E911 Communications violated the Open Records Act in denying Antoinette Taylor's October 4, 2010, request for copies of:
1. All law enforcement data for service runs to 103 Gray Hawk Drive, Shelbyville, Kentucky from May 9, 2010 to September 15, 2010[; and]
2. All law enforcement data transcripts of dispatch records in regards to 103 Gray Hawk Drive, Shelbyville, Kentucky from May 9, 2010 to September 15, 2010.
The weight of legal authority, coupled with the facts of this case, militate in favor of disclosure and, therefore, Shelby County E911's reliance on KRS 61.878(1)(a) and (i) was misplaced.
In a line of open records decisions from the early nineties, the Attorney General rejected a blanket policy of nondisclosure of 911 dispatch records, observing:
This Office has consistently recognized that exclusion of particular entries on a dispatch log must be "articulated in terms of the requirements of the statute." OAG 89-20, p. 3. The focus in our earlier opinions was on the "law enforcement exception" to the Open Records Law, KRS 61.878(1)(h) [rather than KRS 61.878(1)(a) and (i)]. In our view, a generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of that law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the "basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest." KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, "If any public record contains material which is not excepted under [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination."
94-ORD-133, p. 9. In that decision, a copy of which is attached hereto and incorporated by reference, we analyzed the competing public and private interests implicated by nondisclosure, characterizing them as "equally compelling," and concluding that "in view of the fact that '[t]he Act's "basic policy" is to afford free and open examination of public records and all exceptions must be strictly construed,' [citation omitted], we . . . find that, as a matter of policy, the dispatch center is foreclosed from adopting a policy of blanket exclusion relative to names and identifying information." Id. at 11. In so holding, we expressly rejected the dispatch center's reliance on KRS 61.878(1)(a) and (i) to support nondisclosure of dispatch records in their entirety. 1
The Kentucky Court of Appeals recently affirmed the public's right to know how a 911 dispatch center discharged its statutory functions. In Marshall County E911 Division v. Paxton Media Group, LLC, No. 2008-CA-001100-MR (Ky. App. 2009), 2 the Court of Appeals rejected the E911 dispatch center's reliance on KRS 61.878(1)(a) and (i) to support nondisclosure of a 911 recording, focusing on the requirement that agencies present proof to sustain their action, and recognizing that courts employ a case specific approach to each records dispute. A copy of the court's opinion is attached hereto.
In supplemental correspondence directed to this office, Shelby County E911 Communications suggests that "unfettered public access to [911 dispatch records] would potentially result in public ridicule of the occupants or residents of [the] addresses [in the records] and possibly encourage vindictive neighbors or relatives to wage campaigns of harassment against their neighbors by making false E911 reports and then publishing records of those reports for the world to view." Speculation as to what might occur is insufficient to overcome the presumption of openness upon which the Open Records Act is based. However, we do not address the issue of whether Shelby County E911 Communications properly withheld personally identifiable information relating to the anonymous caller or the persons about whom the calls were made. Because Ms. Taylor's request was limited to data reflecting dates and times of law enforcement runs, Shelby County E911 Communications was only obligated to release these portions of the dispatch records, redacting information that does not reflect the law enforcement authorities' response. Its failure to do so constituted a violation of the 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.
Antoinette TaylorCayla Flannery-HackworthHart T. Megibben
Footnotes
Footnotes
1 We have dealt with disclosure of audio recordings of 911 calls in subsequent open records decisions. See, e.g., 04-ORD-161 and authorities cited therein. Because Ms. Taylor did not request audio recordings, these decisions have no bearing on the outcome of this appeal.
2 Marshall County E911 Division v. Paxton Media Group is an unpublished opinion rendered on January 23, 2009. Pursuant to CR 76.28(4)(c), it may be cited for consideration if there is no published opinion that adequately addresses the issue.