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 Lexington-Fayette Urban County Government (LFUCG) violated the Open Records Act in denying attorney Mark A. Wohlander's March 14, 2014, request for a copy of certain 911 recordings from December 2013. For the reasons stated below, we find that the withholding of the records, under the circumstances presented, did not violate the Act.
Mr. Wohlander's March 14 letter, in relevant part, requested copies of the following: 1
Any and all 911 recordings and transcripts of 911 recordings from the North Hanover area of Lexington, Kentucky from 7:45 p.m. until 8:45 p.m. on December 20, 2013.
Any and all 911 recordings and transcripts of recordings from 7:45 p.m. until 8:45 p.m. on December 20, 2013 from [names and telephone numbers omitted].
Any and all 911 recordings and transcripts of recordings on December 24, 2013 from [name and telephone number omitted].
(Numbering omitted.) On March 19, 2014, Mr. Wohlander sent a follow-up letter to Robert Stack, Director, Division of Enhanced 9-1-1, clarifying that his request was not meant to include Automated Location Identification (ALI) associated with the 911 calls. That same day, Assistant Records Custodian Marcia Woodyard, LFUCG Division of Police, issued the following response:
Due to the nature of your request and the fact that the records are not centrally located, it will take time to process your request. I will update you by letter in 5-7 business days as to the status of your request.
At the end of this process, all non-exempt documents will be made available for your inspection.
The following day, March 20, 2014, Mr. Stack sent the following letter to Mr. Wohlander:
I received your letter dated March 19, 2014 regarding an open record request submitted on March 14, 2014 concerning 911 calls/transcripts, employee logs, dispatch logs, and policy/SOP, etc. , pertaining to the Alex Johnson murder investigation. The Alex Johnson murder case is an active investigation. Therefore, the response to your request will be handled entirely by the Lexington Division of Police. Officer Aaron Kidd is the records custodian for this matter.
Having received no substantive response, Mr. Wohlander appealed to the Attorney General on March 22, 2014. In his appeal letter, he explains:
The records request involves an investigation on behalf of the family of Alex Johnson to determine whether the E-911 responded to at least two 911 calls on the evening of December 20, 2014. The requested information is not only important to the family, it is a matter of public importance in order to inform the public whether appropriate actions were taken at the time of the 911 calls.
?
As background to the request, on the evening of December 20, 2013, Alex Johnson was abducted from his residence on North Hanover Street in Lexington, Kentucky. After several weeks of attempting to get the Lexington Division of Police to investigate Alex's disappearance, the family finally hired a private detective who uncovered two witnesses to the abduction. [Footnote omitted.] The witnesses were interviewed and it was learned that both witnesses had called the 911 Center at the time of the abduction. The witnesses described the abduction as being brutal and advised they were sure that the dispatcher should have been able to hear the screams of Alex Johnson in the background. For whatever reason, the E-911 Center either failed to dispatch officers to the area, or the desperate calls from the two witnesses were not regarded as true or important enough to dispatch officers in an attempt to save Alex's life. In any event, the investigation now reveals that Alex was murdered that evening.
What is clear at this point from our investigation is that the Lexington Division of Police and the E-911 Center apparently did not consider the 911 calls important enough to even follow up with the two callers to obtain additional information, including the description of those involved in the abduction, the description of the vehicle they were driving, or for that matter the location of the abduction. In fact, had this information been obtained on the evening of Alex's abduction, Alex might not have been murdered, and the family would not have had to beg the Lexington Division of Police to at least open a missing person investigation on the disappearance of Alex. Even more troubling is that one of the witnesses again contacted the E911 Center on December 24, 2013, in order to inquire as to why she had not been contacted after her call on December 20, 2013. After the private investigator hired by the family located the witnesses, the information was immediately turned over to the Lexington Division of Police and the witnesses were finally contacted and interviewed on January 20, 2014.
On March 25, 2014, a substantive response to Mr. Wohlander's request was issued by Officer Aaron Kidd. With regard to the 911 recordings, Officer Kidd stated as follows:
I have provided you with the dispatch log and the dispatch audio recording for the incident. However, I am unable to provide you with the 9-1-1 audio recordings or transcripts due to this being an open criminal matter and the 9-1-1 audio recordings are evidence; please see below: [citation to KRS 61.878(1)(h)]
Furthermore, the 9-1-1 calls are also exempt due to the following: [citation to KRS 65.752(4), dealing with ALI, and "KRS 670878(1)(a) [ sic ] as an unwarranted invasion of personal privacy"), "KRS 67.878(1)(l) [ sic ] as preliminary draft"), and 61.878(1)(h) ("involving an ongoing [ sic ] Police Investigation. Release of 911 tapes could have a chilling effect on the 911 system.")]
On April 9, 2014, LFUCG counsel Michael R. Sanner responded to the appeal, reiterating the agency's reliance on KRS 61.878(1)(h) and 61.878(1)(a), but not invoking KRS 61.878(1)(l). 2 He pointed out that the defendants in the criminal matter were still awaiting trial, and also added the following pertinent information:
The records that were released included dispatch logs and radio traffic which reveals which call taker took the call, at what time and what date, a synopsis of the call and the date and time when officers were dispatched regarding the call. The radio traffic gives the same details along with a description of the car and a synopsis of what was reported.
?
? Once the criminal case has been prosecuted and the case is closed, the Division of Police has no objection to providing a written transcript of the 911 calls with the names and identifying information of the witnesses redacted.
We first address the applicability of KRS 61.878(1)(h). This subsection permits nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky addressed in detail the "law enforcement exception" under KRS 61.878(1)(h). The Court held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when a record pertains to a prospective law enforcement action,
the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern .
City of Fort Thomas, 406 S.W.3d at 851 (emphasis added). "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption. " Id. at 852 (overruling in part Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)).
Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing--by affidavit; by oral testimony; or, if necessary to preserve the exemption, by in camera production--to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.
Id. The agency must identify specific records or categories of records "the particular nature of which renders them exempt. [T]he law enforcement exemption cannot be invoked without at least that minimum degree of factual justification...." Id. (emphasis added). Thus, a concrete, non-speculative risk of harm must be attributable to a particular record or records.
The agency points out that in this instance the criminal case has not yet gone to trial. LFUCG's attempt to show harm to the agency if the 911 tapes are disclosed is expressed as follows:
A premature release of primary evidence in a felony case would taint any jury pool as this isolated evidence could be taken out of context and not in the context of the entire prosecution case. This would make a fair trial for the Defendants difficult. Premature release of evidence could to commentary [ sic ] on the evidence by the media or other lawyers. And in fact there could be unwanted contact of the witnesses by the media, lawyers or others that may affect the evidence prior to trial. The public has an interest in not only in [ sic ] protecting the prosecution[']s case before it goes to trial but also in insuring the Defendants get a fair trial. Release of this primary evidence would have an ill effect on both the prosecution and Defendants.
We have never held that 911 tapes may be categorically withheld under KRS 61.878(1)(h), but rather have required a showing of harm on a case-by-case basis. See, e.g., 95-ORD-29 (requiring disclosure of 911 tapes over general allegations of harm to the agency). In this case, we are likewise mindful that these determinations must be made individually and limited to the factual situation presented. Specifically, we consider the status of 911 recordings of witnesses prior to trial in a felony homicide case.
LFUCG articulates two basic categories of "harm [to] the agency" that it alleges would result from disclosure of the 911 tapes to Mr. Wohlander. First, LFUCG argues that releasing the 911 tapes "would taint any jury pool" because they constitute "primary evidence in a felony case" and would be "isolated evidence [that] could be taken out of context." The agency adds that "the media or other lawyers" might choose to make "commentary on the evidence" if it is disclosed, thus further complicating the process of obtaining a fair trial.
LFUCG stresses that the criminal proceeding is at a pretrial stage, which distinguishes this case from the facts in City of Fort Thomas. The police agency in City of Fort Thomas withheld its entire investigative file from inspection at a post-conviction stage based on the mere possibility of a collateral challenge to the judgment. 406 S.W.3d at 847. In this case, the impending criminal trial is a present reality, which is relevant to determining whether a claim of harm to the agency is concrete or speculative.
Secondly, the agency expresses concern about "unwanted contact of the witnesses by the media, lawyers or others that may affect the evidence prior to trial. " We have previously held that unwanted attention from the media in connection with a 911 call does not by itself create a strong privacy interest. 10-ORD-161. In this case, however, the criminal prosecution has not yet gone to trial. We recognize that the publicity connected with a murder trial and the possible identification of witnesses by their voices may have the potential to affect the willingness of witnesses to testify. At this early stage in the criminal process, when no evidence has yet been presented, we acknowledge that the unpredictable effect of the public release of witnesses' 911 recordings upon the fairness of the trial constitutes more than a speculative risk of harm.
The adequacy of a showing of harm to the agency under KRS 61.878(1)(h) is highly dependent upon the facts of the individual case and must be narrowly determined on that basis. Accordingly, we find that the agency has met its burden of proof as defined in City of Fort Thomas to establish a "concrete risk of harm" likely to result from disclosure of the 911 tapes. Thus, the tapes are exempt pursuant to KRS 61.878(1)(h). For this reason, we need not consider the agency's privacy argument under KRS 61.878(1)(a). Therefore, we find that LFUCG did not violate 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.
Distributed to:
Mark A. Wohlander, Esq.Michael R. Sanner, Esq.Mr. Robert StackMs. Marcia Woodyard
Footnotes
Footnotes