Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Newport violated the Open Records Act in denying Capitol Radio Traffic Systems' requests for "all accident reports from the Newport Police Department for [specified] time period[s]" based on the city's belief that Capitol Radio is not a newsgathering organization within the meaning of KRS 189.635(8). We find that Capitol Radio is a newsgathering organization for purposes of KRS 189.635(8), as construed in
Capitol Resources Corporation v. Department of Kentucky State Police, 2007 WL 2332716 (Ky. App.), 1 and that the city improperly denied Capitol Radio's requests on this basis. 2
On appeal, Capitol Radio is described as a producer of "Spanish-language traffic reporting content, including both live traffic and news stories concerning particular accidents in both audio and hard copy." Capitol Radio's employees "broadcast the live reports" and the company:
has agreements to provide the content it produces to Spanish-language radio stations in Boston, MA; Hartford, CT; Philadelphia, PA; Louisville, KY; Indianapolis, IN; Richmond, VA; Norfolk, VA; Atlanta, GA; Nashville, TN; Jacksonville, FL; West Palm Beach, FL; and Miami, FL.
The company also produced traffic reports through a dial-in, toll-free service, called I-855-TRANSITO. To produce this traffic-reporting content, Capitol Radio obtains information from various sources, including traffic reports. Capitol Radio publishes content through Spanish-language broadcasters in Kentucky and accordingly has begun to request vehicle accident reports from various locales in the Commonwealth, including Newport.
Capitol Radio disputes the city's claim that it is not a newsgathering organization because it provides content to radio stations in its network which the stations, in turn, broadcast, and because it receives compensation for this content, analogizing its role to that of the Associated Press, Reuters, and United Press International. Capitol Radio focuses on the paucity of legal authority supporting the city's position that a newsgathering organization is divested of this status if it publishes its content through other providers.
The city, conversely, criticizes Capitol Radio's refusal to disclose records reflecting the terms of a subscription to their service, emphasizing that Capitol Radio "is somehow compensated by someone." Drawing its own analogy, counsel for the city notes that he, or anyone else, "could make this request and sell the information to a radio station, receive compensation, and claim that, because the information is broadcast, it is protected" as a noncommercial purpose. Further, the city complains about its inability to locate and speak directly to representatives of Capitol Radio's local network affiliate(s) in order to "form an opinion on this issue." While we agree with the city that the issue of Capitol Radio's intended use of the requested reports must be "more fully developed," we do not agree with the city that Capitol Radio is not a newsgathering organization within the meaning of KRS 189.635(8) as broadly interpreted in Capitol Resources , above. We therefore find that the city improperly denied Capitol Radio's request on this basis.
In Capitol Resources Corporation v. Department of State Police , above, the Kentucky Court of Appeals examined the propriety of KSP's denial of a request for accident reports under the 1994 amendment to KRS 189.635, a statute that, in general, prohibits disclosure of accident reports to all but the parties, their insurers, their attorneys, and "newsgathering organization[s], solely for the purpose of publishing or broadcasting the news." 3 The statute also prohibits newsgathering organizations from "us[ing] or distribut[ing] the report, or knowingly allow[ing] its use or distribution for a commercial purpose other than the newsgathering organization's publication or broadcasting of the information in the report." Capitol Resources was "an organization that gather[ed] and publish [ed] information in various print and internet publications throughout the United States." Id. at 1. Beginning in 2005, Capitol Resources submitted requests for accident reports to a number of Kentucky agencies, including the Kentucky State Police. Although its president signed an affidavit stating that Capitol Resources' sole intended use of the reports "was the publishing or broadcasting of the news in its publication," KSP's investigation revealed that other states had determined that Capitol Resources' intended use "was to solicit business," and thereafter denied Capitol Resources' requests because they "were not made for newsgathering purposes but, instead, were to further its private business interests including the sale of the reports or their contents to subscribers. " Id. The Kentucky Court of Appeal's rejected KSP's position, acknowledging its "hesitation to interpret any statute in such a manner as to infringe on the freedom [of the press]" when called upon to examine the content of information for newsworthiness. 4 Capitol Resources at 7.
The Court of Appeals defined the term "newsgathering" as, generally, "the act of obtaining information with the intent to publish or disseminate it to the public," emphasizing that dissemination of the news "via the internet or by a less conventional method" made it no less newsworthy nor deprived it of First Amendment protection. Id. Capitol Resources, the court concluded, was clearly a newsgathering organization. Having so concluded, the court's focus shifted to Capitol Resources' intended use of the requested accident reports and the recognition that "Capitol could not be denied the requested reports merely because it intended to 'publish' them on a website for which presumably its access is open only to paid subscribers. " Id. at 8. Analyzing the evidence of Capitol's intended use of the reports, the court concluded that although KSP "had a reasonable suspicion to deny the requested reports, to meet its burden of proof in a court [or administrative] 5 action filed pursuant to the Kentucky Open Records Act, it must demonstrate that its suspicions are factually accurate." Id. at 10. The court thereafter remanded the case to the circuit court for, inter alia , discovery aimed at "establish[ing] whether Capitol [Resources] requested the accident reports for commercial purposes." Id.
Although the City of Newport intimates that Capitol Radio's intended use of the requested accident reports may be a commercial one, its denial was postulated on the belief that Capitol Radio is not a newsgathering organization. Given the broad definition of the term found in Capitol Resources , above, and the court's hesitation to interpret KRS 189.635(8) in such a way as to derogate a free press, we believe Capitol Radio must be accorded the same status. Capitol Radio obtains accident reports with the intent to publish or disseminate them to the public, albeit through unconventional means. It remains for the City of Newport to prove its suspicion that Capitol Radio's intended use of the reports is a commercial use, thus justifying its refusal to release the reports. We trust that Capitol Radio will cooperate in this endeavor.
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:
Stephen J. MattinglyThomas CollinsRobert E. List
Footnotes
Footnotes
1 Capitol Resources Corporation v. Department of Kentucky State Police , above, is an unpublished opinion rendered on August 3, 2007, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).
2 Although the issue is not before us, the propriety of the city's denial also turns on Capitol Radio's intended use of the reports. As the court observed in Capitol Resources , above, "[a]lthough Capitol [Resources] is a newsgathering organization, under KRS 189.635(8), it is not entitled to the requested accident reports unless it intend[s] to use them solely for the purpose of publishing or broadcasting the news and not for a commercial purpose." Id. at 8. "[M]ere publication or broadcast of the news and its monetary return [through, for example, subscriptions] does not render it a commercial purpose." Id. The relevant inquiry is, instead, whether "the request [is] in furtherance of the publication of the news or some unrelated activity," id. at 9, such as the sale of the reports to subscribers to facilitate solicitation of accident victims. It remains for the city and Capitol Radio to resolve the issue of Capitol Radio's intended use of the reports and, if Capitol Radio is dissatisfied with that resolution of the issue, to pursue a separate appeal.
3 The confidentiality provisions found at KRS 189.635 are deemed incorporated into the Open Records Act by KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
4 The court quoted extensively from Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S. Ct. 444, 449, 80 L. Ed. 660 (1936) in which the United States Supreme Court recognized that "[a] free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves." Capitol Resources at 6.
5 KRS 61.880(2)(c) assigns the burden of proof to the public agency in an appeal of the agency's denial of an open records request to the Attorney General. Compare KRS 61.882(3).