Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Staff Writer Rosalind Essig, The Jessamine Journal , initiated this appeal challenging the denial by Jessamine County Emergency Services (JCES) of her April 20, 2015 request for the "CAD [Computer Aided Dispatch] Response Report" and the "Audio Recording" of a "Police-involved shooting" which occurred on "4/18/15-4/19/15" at 105 Hinkle Street, Wilmore, Kentucky. In a timely written response, Deputy Director Tammy Durham, "Jessamine County 911," denied Ms. Essig's request on the basis of KRS 65.752(4), which prohibits disclosure of "ALI [Automatic Location Identification] information except in response to a 911 call or for the purpose of maintaining the ALI database," and KRS 61.878(1)(l), which, Deputy Director Durham observed, "exempts from public inspection '[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by [] enactment of the General Assembly.'" Deputy Director Durham further asserted that "[t]he 911 tape is also exempt pursuant to KRS 61.878(1)(a) as an unwanted invasion of personal privacy, KRS 61.878(1)(i) as a preliminary draft and KRS 61.878(1)(h) involving an ongoing Police investigation." Citing
Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000), JCES generally maintained that "[r]elease of 911 tapes could have a chilling effect on the 911 system." Deputy Director Durham noted in closing that "[t]he incident is currently under investigation by Kentucky State Police [KSP]. KSP Detective Monty Owens has been assigned the case and has advised the information is not available for public release at this time. "
On appeal Ms. Essig cited 12-ORD-138 (holding that Jessamine County E-911 improperly denied a request for a recording of 911 calls relating to a traffic accident on the basis of KRS 61.878(1)(a) in addition to finding that KRS 65.752(4) authorized the withholding of ALI information but not 911 recording) and 14-ORD-139 (determination of whether agency has adequately demonstrated harm per KRS 61.878(1)(h) "is highly dependent on the facts of the individual case"). In denying her April 20 request, Ms. Essig argued, JCES "cites no specific 'harm' that could result from the release of the tapes I requested. The agency simply quotes the statute, with no case-specific justification." Ms. Essig's point is well-taken - JCES initially failed to demonstrate any "concrete risk of harm" that release of the records in dispute would cause as required to justify invocation of KRS 61.878(1)(h) per KRS 61.880(1) and 61.880(2)(c). Because JCES adequately explained how disclosure of the records would harm the ongoing investigation by KSP on appeal, however, this office affirms the agency's denial of Ms. Essig's request on the basis of KRS 61.878(1)(h).
Upon receiving notification of Ms. Essig's appeal from this office, counsel for JCES elaborated upon the agency's position. Quoting the analysis that must be used in determining whether a public agency has properly invoked KRS 61.878(1)(h), the "law enforcement exception," under
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), JCES advised that JCES/E-911 employee Chris Bowman compiled the records in dispute for use by KSP in that agency's investigation of the April 18-19, 2015, officer involved shooting. Regarding the harm that would result from premature disclosure, counsel advised:
The records were collected by [KSP] as part of the necessary evidence required to build their case which will ultimately be presented to the Commonwealth's Attorney for his consideration. At this time, [KSP] have not completed their investigation. . . . At the close of their investigation, the lead investigator will present the case to the Commonwealth's Attorney. It is not until after the case is presented to the Commonwealth's Attorney that a decision is made on whether or not further action will be taken following the investigation. The documents which are being withheld are a portion of the evidence that will be used in making that determination. A release of these documents while investigation is ongoing may hinder the agency's investigation. The audio recordings include 911 calls placed to [JCES] relating to the incident and contain accounts from callers who may be interviewed as part of KSP's investigation. Early release of the recordings, prior to the close of KSP's investigation, could compromise witnesses and [affect] their recollection of the events which occurred on that date. This would have a very negative impact on the veracity of witness statements relating to this incident. The recordings also include radio traffic from law enforcement officers who were dispatched to the scene of 105 Hinkle Street on April 18-19, 2015. Similarly, if released, the recordings would negatively impact the veracity of witness statements and their recollection of the circumstances and events which transpired that evening. Each of these individuals were witness to events which occurred and ultimately ended in an officer involved shooting which resulted in [a] fatality. The witness' statements are critical to law enforcement's investigation of this case. In addition, early release of these recordings, without the release of the totality of the evidence, will taint the grand jury pool. The CAD report requested . . . was not released, at least in part, in reliance upon KRS 61.878(1)(h). The CAD report contains caller information, time, and details regarding the incident. The records withheld from disclosure were provided to KSP, at their request, for their investigation of the facts relating to this incident. While the determination of whether or not this case will be presented to the grand jury has not been made, we cannot say for certain that it will not be presented. If these records are released, and the decision is made to present the case to the grand jury, the pool of jurors have been exposed to only a portion of the evidence relating to the case they will be considering for indictment. If a juror is exposed to a portion of the evidence and, based on that, forms an opinion of the case, the jury has been tainted and their impartiality is compromised. . . . The harm resulting from such a compromise is grave and precisely the harm the "law enforcement exception" codified in KRS 61.878(1)(h) is aimed to prevent.
Resolution of this appeal turns on the application of KRS 61.878(1)(h), pursuant to which a public agency is authorized to withhold:
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[.] . . . 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 , above, the Kentucky Supreme Court examined in detail the "law enforcement exception" codified at KRS 61.878(1)(h), holding that in order to successfully invoke that exemption "under the 'prospective action' prong," a public agency "must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way." Id. at 850. Rejecting the position that a police department's investigatory file is "categorically exempt" from disclosure "merely because it pertains to a prospective enforcement action, " Id. at 849, the Court instead found that when a record(s) pertains to a prospective law enforcement action, KRS 61.878(1)(h) 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." Id. at 851. A public agency should provide the requester 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. at 852 (overruling in part
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), at 853).
Regardless of whether JCES is a law enforcement agency, this office has recognized that a public safety answering point (PSAP) or entity charged with receiving 911 calls and then dispatching public safety agencies, or with relaying 911 calls to appropriate public safety agencies, may claim KRS 61.878(1)(h) "on behalf of another agency which has compiled the 911 call records as part of an investigation of a crime," regardless of whether the entity is designated a PSAP or is otherwise designated. 09-ORD-227, p. 3. "[W]here there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency." 09-ORD-143, p. 5. In 09-ORD-143, this office held that Trigg County Emergency Services had "successfully built a case for nondisclosure [pursuant to KRS 61.878(1)(h)] postulated on the harm to KSP's investigation of a triple homicide that would result from premature disclosure of the [911 audio recording and the related dispatch log entries]." 09-ORD-143, p. 5. The Attorney General affirmed Trigg County's reliance on KRS 61.878(1)(h) based on proof establishing that said records "were compiled by the Kentucky State Police, a law enforcement agency, in the process of investigating the triple homicide" and that disclosure thereof would "harm . . . KSP's ongoing investigation, as well as subsequent prosecution," by "influencing witness statements, disclosing evidence to be used during trial, and tainting the potential jury pool. " Id. at pp. 6-7; compare 09-ORD-227 (Whitley County E-911 Center invoked KRS 61.878(1)(h) without "identif[ying] the law enforcement agency conducting a criminal investigation or present[ing] any 'particular and detailed information' from that agency about the harm it would suffer from disclosure of the records").
Here, the records in dispute were compiled by KSP, a law enforcement agency, in the process of investigating an officer involved shooting. JCES invoked KRS 61.878(1)(h) on behalf of KSP. On appeal JCES provided the affidavit of Mr. Bowman attesting that he compiled the "CAD response report and audio recordings" pertaining to the April 18-19, 2015, incident upon request by KSP. JCES also provided the affidavit of KSP Captain Jeremy C. Slinker attesting that KSP is conducting the investigation of the incident, which is now identified using Case No. 07-15-0223. "At the close of the investigation," Captain Slinker advised, "the case will be presented to the Commonwealth's Attorney." The role of KSP "is to investigate the above-referenced incident and present its case to the Commonwealth's Attorney." The question becomes whether JCES adequately demonstrated the harm that would result from disclosure as required to satisfy its burden of proof under KRS 61.878(1)(h). See KRS 61.880(2)(c).
This office has "never held that 911 tapes may be categorically withheld under KRS 61.878(1)(h), but rather has required a showing of harm on a case-by-case basis." 14-ORD-139, p. 7; 95-ORD-29 (holding that agency was required to disclose 911 recordings absent showing of specific harm that would result from disclosure) ; 06-ORD-230. Accordingly, in addressing the "status of 911 recordings of witnesses prior to trial in a felony case" this office reaffirmed that such determinations "must be made individually and limited to the factual situation presented." 14-ORD-139, p. 7. In 14-ORD-139, the Lexington-Fayette Urban County Government (LFUCG) denied a request for specific 911 recordings and transcripts, alleging two categories of harm that would allegedly result from disclosure of the records. First, LFUCG argued 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.'" Id. LFUCG added that members of the media and other lawyers "might choose to make 'commentary on the evidence' if it is disclosed, thus further complicating the process of obtaining a fair trial." Id.
There, as in this case, the agency emphasized "that the criminal proceeding is at a pretrial stage, which distinguishes the case from the facts in City of Fort Thomas ." 14-ORD-139, p. 7. Noting that unwanted attention from the media in relation to a 911 call does not by itself "create a strong privacy interest" under existing authority, this office nevertheless acknowledged that "the criminal prosecution has not yet gone to trial." 14-ORD-139, p. 8. Significantly, this office recognized that publicity associated with, in that case, a murder trial, "and the possible identification of witnesses by their voices may have the potential to affect the willingness of witnesses to testify." Id. At such an "early stage in the criminal process, when no evidence has yet been presented," this office acknowledged "that the unpredictable effect of the public release of witness' 911 recordings upon the fairness of the trial constitutes more than a speculative risk of harm. " Id. See 14-ORD-223 (noting that "current status of a criminal prosecution could be a factor affecting the threshold for a showing of harm to the agency under KRS 61.878(1)(h) as interpreted in City of Fort Thomas " and holding that because recent occurrences in the detention center were still being investigated by KSP, the enforcement action was "at a very early stage and the effect of public release of the relevant jail records upon the fairness of a future trial is as unpredictable as in 14-ORD-039").
The Jessamine Journal submitted its request for the CAD Report and the audio recording (s) pertaining to the April 18-19, 2015, incident on April 20, 2015; if anything, the status of the investigation is a factor that weighs more heavily in favor of establishing harm on the facts presented. Here, as in 14-ORD-139 and 14-ORD-223, "any of the records in question may become evidence in a criminal trial." 14-ORD-223, p. 3. Given the ongoing investigation by KSP, this fact "is sufficient under the rationale of 14-ORD-039 to establish the harm that would likely result from disclosure of these investigative documents." 14-ORD-223, p. 3. In light of this determination, further consideration of the agency's other bases for denial is unwarranted. 1 Either party may appeal this decision by initiating action in the appropriate circuit court under 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. Jack Conway Attorney General Michelle D. Harrison Assistant Attorney General
Footnotes
Footnotes
1 On June 10, 2015, this office received a reply to counsel's May 22, 2015, appeal response in which Ms. Essig confirmed receipt of that response on May 26, 2015, and, in relevant part, disputed that JCES had sufficiently demonstrated the harm that would result from disclosure of the records in dispute as required to successfully invoke KRS 61.878(1)(h). Although Ms. Essig correctly asserted that JCES initially failed to demonstrate any harm per KRS 61.878(1)(h), and this office considered the additional points outlined in her June 5, 2015, reply letter, nothing contained therein altered our decision and further discussion is therefore unwarranted.