Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jessamine County E-911 violated the Kentucky Open Records Act in partially denying Amanda Wood's February 16, 2012, request 1 for a copy of the audio recording of "all 911 calls, patches from EMS" relating to a "10-46 with EMS-1" that occurred on February 11, 2012, at "1239." Shelby Horn, E-911 Director, Jessamine County Emergency Services, advised Ms. Wood in a letter dated February 21, 2012, that "[a]udio of the EMS radio patches [is] being provided to you; however the audio information of the 911 calls cannot be released per KRS 61.878(1)(a) which exempts 'public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. '" This response was deficient insofar as the agency failed to offer any explanation of how the cited exception applies to the records withheld in accordance with KRS 61.880(1). 2 "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996) (emphasis added). A "limited and perfunctory response," the Court recognized, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id. ; 01-ORD-183, pp. 2-3; 07-ORD-139; 11-ORD-158; 12-ORD-159.
Although E-911 elaborated upon this argument in responding to Ms. Wood's appeal, the agency's interpretation of
Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000), and its blanket policy of "not releas[ing] 911 calls by citizens" are contrary to prior decisions by this office which, in the context of 911 calls, the Attorney General continues to construe as requiring "a case-specific approach to determining whether access to records is appropriate . . . ." Id. at 787;
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, 824 S.W.2d 324, 327 (Ky. 1992). See 06-ORD-230; 07-ORD-141. Based upon the following, this office finds that E-911 has not presented sufficient facts in this particular case to justify invocation of KRS 61.878(1)(a) by proving that the privacy interests of the 911 callers outweigh the significant public interest in disclosure of the 911 recording. Rather, as E-911 accurately observed, the recording merely consists of calls by citizens "notifying E911 of the collision, and E911 informing the citizens that the appropriate actions have been taken." Although E-911 is authorized to withhold Automatic Location Information (ALI) per KRS 65.752(4), the protection of that confidentiality provision "does not extend to the underlying recording of the 911 call." 04-ORD-161, p. 4. See
Marshall County E-911 Division v. Paxton Media Group, LLC, 2009 WL 153206 (Ky. App. 2009). 3
Upon receiving notification of Ms. Wood's appeal from this office, Assistant Jessamine County Attorney Joseph C. Allison responded on behalf of E-911. 4 Mr. Allison first clarified that Ms. Wood "was not just a member of the public who was involved in an automobile accident on that date in question. Rather, she was an EMT working on an ambulance that was involved in an automobile collision when it was hit by a truck as it went through an intersection." He also noted that Ms. Wood "did not place a call to E911 during the incident." Having "reviewed the calls that were not released by E911," Mr. Allison advised that "[t]here are several calls informing E911 that a collision had occurred. They comprise only of citizens notifying E911 of the collision, and E911 informing the citizens that the appropriate actions have been taken."
Quoting the language of KRS 65.752(4), Mr. Allison then advised that "E911 does not release 911 calls by citizens pursuant to KRS 61.878(1)(l) which exempts public records 'the disclosure of which is prohibited or restricted or otherwise made confidential by . . . enactment of the General Assembly' and pursuant to KRS 61.878(1)(a) as an unwarranted invasion of personal privacy of callers. " E-911 maintains that "policy," he continued, "with deference to the reasoning in Bowling , [ above] which discussed that 'the public's right to know the contents of the 911 tape recording must give way to the legitimate privacy interests of those calling 911 to seek police assistance.'" According to E-911, "the privacy interest of the private citizen callers is in not having their voices and statements put forth into the public sphere. Moreover, releasing 911 calls to any [requester] for any purpose can have the effect of chilling the public's willingness to utilize the 911 system." In a recent case finding that privacy interests were outweighed, Mr. Allison noted, the Kentucky Court of Appeals observed that "'[t]he public interest in ensuring that government is carrying out its functions is strong[.]'"
Doe v. Conway, 357 S.W.3d 505 (Ky. App. 2010). E-911 maintained that information provided to Ms. Wood "serves the purpose of allowing the public to ensure that the government is carrying out its functions." The purpose of the Open Records Act, Mr. Allison asserted, "is not to disregard the privacy rights or private citizens for the ease or curiosity of other citizens. Where the purpose of the request is not review of government but personal in nature, the mandate of KRS 65.752(4) should be controlling." 5
In resolving the question presented, our analysis must be guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners , above, at 327. As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'"
Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," however, the General Assembly has mandated that certain records are not open for public inspection. Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a).
In Kentucky Board of Examiners , above , the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on KRS 61.878(1)(a) as the basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained therein outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. However, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4.
The public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners, above , at 328. Inspection of public records may reveal whether the public servants are indeed serving the public, "and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Id. Echoing this view, the Court of Appeals refined the standard of
Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994). In discussing its "mode of decision," the Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Kentucky Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328." Zink at 828. In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829.
Having engaged in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. In so doing, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers through dissemination of unsolicited information regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829 (emphasis added). Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id. Inasmuch as the relevant public interest is paramount here, and the disclosure of the requested calls (devoid of "such personal information") would further the principal purpose of the Act in allowing the public to ensure that 911 dispatchers were properly discharging their duties, Zink is distinguishable from the instant appeal.
In Bowling, above (holding that Berea Police Department properly invoked KRS 61.878(1)(a) to deny a request for a 911 recording submitted by the requester who had allegedly threatened to kill his wife and other family members, prompting one of the family members to place the requested 911 call), the Court identified the competing interests that had to be weighed as "the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies." Id. at 788. The Court recognized that releasing "tapes of 911 calls seeking police assistance, particularly in instances of domestic violence , would have a chilling effect on those who might otherwise seek assistance because they would become subject to, . . . retaliation, harassment or public ridicule. " Id. (Emphasis added.) " In this case , the Court ultimately concluded, "the public's right to know the contents of the 911 tape recording must give way to the legitimate privacy interests of those calling 911 to seek police assistance." Id. (Emphasis added.) The Court emphasized that "the Open Records Act envisions a case-specific approach to determining whether access to records is appropriate . . . ." 6 Id. at 787 (citations omitted); 08-ORD-205.
E-911 relies on a contrary interpretation of Bowling to justify its blanket "policy" of not releasing "911 calls by citizens" and its consequent denial of Ms. Wood's request for the subject 911 calls. However, in 06-ORD-230 this office stated that, "in the absence of a Court of Appeals or Supreme Court opinion repudiating the Attorney General's interpretation of Bowling v. Brandenburg, the Attorney General would continue to construe Bowling , in the context of 911 calls, as requiring "a case-specific approach to determining whether access to records is appropriate . . . ." Bowling at 787. A copy of 06-ORD-230 is attached hereto and incorporated by reference. See also 07-ORD-141. While the courts and this office have, occasionally, affirmed the denial by a public agency of a request for all or portions of a 911 recording (s), "no successful attempt has been made to extend blanket protection to them." 09-ORD-164, p. 3 (finding "no support in the law" for position of Whitley County 911 Dispatch that "911 recordings are exempt from the KY Open Records Act" in holding that agency failed to satisfy its burden of proving that specific recordings at issue could be withheld); compare 12-ORD-116 (agency redacted "only identifying information relating to the individuals who placed the calls" and not "as a matter of policy but because, on the particular facts presented, " their privacy interests outweighed the minimal public interest served by disclosure) . Further support for this position is found in
Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent" and focusing instead on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a)).
In 04-ORD-161, this office held 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 privacy interest of the student and that the agency's reliance on KRS 61.878(1)(a) was therefore misplaced. Distinguishing the facts giving rise to Bowling, the Attorney General reasoned:
The decision of the Court of Appeals in Bowling turned, in large part, on the context of domestic violence out of which it arose, and the likelihood that in that context the caller would be subject to retaliation, harassment, or public ridicule. Neither of these factors is present in the instant appeal. Assuming, arguendo, which the caller's identity could be determined through voice identification technology, he need not be concerned with the potential for retaliation, harassment, or public ridicule. His were the actions of a quick-thinking youth who courageously responded to a serious medical emergency, and are more likely to result in accolades than insults. Accordingly, his privacy interest is reduced. Conversely, the public's interest in the actions of the bus driver, as a public servant discharging his or her public function, the 911 operator, as a public servant discharging his or her public function, and the responding police officers, as public servants discharging their public function, which are captured on the 911 recording, are significant indeed.
Id., p. 6. Based upon the foregoing, this office held that "the public's right to know the contents of the 911 tape recording outweighs the minimal privacy interest of the student who placed the call to obtain emergency assistance." This reasoning is controlling on the facts presented. See 06-ORD-230 (holding that surviving family members' privacy interest in nondisclosure of 911 calls placed by observers of the Comair Flight 5191 crash did not outweigh the public's interest in ascertaining whether the Division of Police, and its emergency 911 system, properly executed their statutory duties).
Mr. Allison provided this office with a copy of the CD recording of the 911 calls in dispute per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, upon request for purposes of in camera review. While this office cannot disclose the contents thereof, E-911 has accurately, if generally described the calls withheld as being "several calls informing E911 that a collision had occurred. They comprise only of citizens notifying E911 of the collision, and E911 informing the citizens that the appropriate actions have been taken." As indicated, the result in Bowling, upon which E-911 relied in support of its policy and the subject denial, "turned, in large part, on the context of domestic violence out of which it arose, and the likelihood that in that context the caller would be subject to retaliation, harassment, or public ridicule. " 04-ORD-161, p. 6. Neither is a factor in this case given that a traffic accident is the context and, even assuming the callers could be identified by their voices, their actions were, if anything, commendable inasmuch as they called to assist others. Accordingly, the potential for "retaliation, harassment, or public ridicule" is practically nonexistent. The facts presented are not otherwise uniquely compelling in terms of the privacy interests potentially implicated (not having their "voices and statements put forth in the public sphere") whereas the interest of the public in the actions of the 911 operators as "public servants discharging their public function" is significant. Id.; see KRS 65.7621(17). If anything, the admittedly brief and rather innocuous nature of the calls in dispute weighs in favor of disclosure. The fact that Ms. Wood did not place a call herself but was in the ambulance struck during the collision does not alter the analysis. "In the absence of more particularized proof relative to the nature of the privacy interest of the caller [s] involved," this office finds that E-911 has "fail[ed] to establish that the public's interest in release of the requested records is outweighed by the individual[s'] privacy interest in withholding the record under KRS 61.878(1)(a)." 08-ORD-205, p. 5; 09-ORD-164.
This office finds the agency's position regarding application of KRS 65.752(4) equally unpersuasive. In 04-ORD-161, the Attorney General was asked to determine whether the Lexington Fayette Urban County Government had properly relied upon KRS 65.752(4) in providing a written summary of a specified 911 telephone call as opposed to a copy of the recording itself. The Attorney General addressed the scope of that provision as follows:
PSAP is defined at KRS 65.750(8) 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[.]" ALI [Automatic Location Identification] is defined at KRS 65.750(3) as "a feature by which the name and address associated with the calling party's telephone number is made available to a PSAP[.]" The prohibition on disclosure is restricted, by its express terms, to ALI information, meaning the name and address associated with the calling party's telephone number appearing as an automatic display on an ALI computer screen. It does not extend to the underlying recording of the incoming 911 call. Accordingly, we find that LFUCG's Division of Public Safety, operating as a PSAP for the purpose of receiving 911 calls and dispatching public safety services as appropriate, is not foreclosed from releasing recordings of 911 calls under the narrow prohibition on disclosure of ALI information codified at KRS 65.752(4).
04-ORD-161, at p. 4 (emphasis added). See Marshall County E-911 Division v. Paxton Media Group, LLC, above (requester did not seek disclosure of ALI information so Court "not persuaded that KRS 65.752(3) and (4) acted to bar the request" as information could be redacted per KRS 61.878(4)). Under this authority, E-911 was authorized to withhold ALI information per KRS 65.752(4), but not the recording itself.
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.
Distributed to:
Amanda WoodShelby HornJoseph C. Allison
Footnotes
Footnotes
1 The "Open Records Request Form" that Jessamine County Emergency Services utilized provides that "All blanks must be completed prior to the request being considered" and requires the requester to provide a telephone number, address, and the "Reason Information is needed." Accordingly, this office is compelled to clarify that a requester's purpose in seeking access to public records "is irrelevant" as KRS 61.872(2) narrowly defines the information that a public agency is entitled to require from a requester. 06-ORD-084, p. 4. "KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records, or to consider those motives in determining whether the records should be released." Id. The only exception to this rule is found at KRS 61.874(4)(b), which is not implicated here. See 06-ORD-084; 11-ORD-082.
This office has also consistently recognized that even if a request is "not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long as] it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. See OAG 76-588; 06-ORD-112. A public agency "may require a written application, as opposed to an oral request," but nothing in the Act "authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. " 94-ORD-101, p. 3; 10-ORD-122 (agency is "acting contrary to the intent of the Open Records Act 'by imposing unauthorized requirements on records access'" in requiring the requester to complete a particular form).
2 In relevant part, KRS 61.880(1) provides:
. . . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
3 Marshall County E-911 Division v. Paxton Media Group, LLC is an unpublished opinion rendered on January 23, 2009, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).
4 Although Mr. Allison initially argued that Ms. Wood's appeal "should be denied as untimely" as "KRS 61.846(2) applies through 40 KAR 1:030 to set a limitation of 60 days in which to file an open records appeal." KRS 61.846(2), a provision of the Open Meetings Act, actually provides:
If a complaining party wishes the Attorney General to review a public agency's denial [of a complaint submitted per KRS 61.846(1) rather than KRS 61.880(1)] shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party by that party of the written denial. If the public agency refuses to provide a written denial, a complaining party shall provide a copy of the written complaint within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency. The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays [rather than twenty (20) per KRS 61.880(2)(a)] a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.
(Emphasis added.) The Open Records Act, codified at KRS 61.870 to 61.991 does not contain any such restriction; accordingly, Ms. Wood's appeal is not untimely and the agency's position lacks merit.
5 In her June 22 appeal, Ms. Wood explained that "Ms. Horn did supply me with some patches, however some of the recordings dropped off in the middle. . . . The conversation with each party was recorded, however the recording suddenly stopped when the two parties began speaking to each other." In addressing the "implication that tapes are cut off mid-tape or that not all of the telephone patches" were provided, Mr. Allison clarified that "[e]ach of the patches and the entirety [of] each patch recorded by E911 has been provided." Mr. Allison also quoted a further explanation from E-911 advising that such gaps are "due to the Dispatcher disconnecting from the two parties when they became connected." When the dispatcher hangs up, E-911 continued, "the call is no longer being recorded. . . . [S]etup of the recording technology is limited to audio 'going through' the dispatcher position. Conversations between entities outside of participation of the 911 dispatcher are not captured by the logging recorder." This explanation seems credible; however, "disputes involving discrepancies in records produced for inspection are, in general, not capable of resolution in an open records appeal." 09-ORD-101, p. 3. Because "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act" cannot be resolved in this forum, the Attorney General makes no finding relative to perceived omissions and discrepancies in the records provided. 04-ORD-216, p. 3.
6 The Bowling Court adopted the reasoning of OAG 90-117 (holding, in relevant part, that KRS 61.878(1)(a) authorized nondisclosure of the tapes and 911 calls); however, in 94-ORD-133 this office expressly overruled OAG 90-117, reasoning that said opinion "predates the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists [ above. ] After Board of Examiners , there can be no doubt that a policy of blanket exclusion of records, or entries on records, on the basis of KRS 61.878(1)(a) is generally impermissible." 94-ORD-133, p. 13. "Given the status of OAG 90-117" when the Court issued Bowling , this office has consistently recognized, it "cannot be construed to authorize nondisclosure of all 911 calls in light of the Kentucky Supreme Court's holding in Board of Examiners , above , but instead requires a case-specific analysis." 07-ORD-141, p. 6 (original emphasis).