Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Kentucky Open Records Act in the disposition of Demetria Firman's October 11, 2016, request for "a copy of the 911 audio and CAD [Computer Aided Dispatch] report" of the October 8, 2016, injury accident involving Aguiar Injury Lawyers' client, Chris Grundy, which occurred at the intersection of 18th Street and Market Street in Louisville, Kentucky. LMPD granted the request but redacted the names and telephone numbers of witnesses on the basis of KRS 61.878(1)(a). Randy L. Bayers, attorney, initiated this appeal by letter dated March 8, 2017, challenging the redactions made in the responsive 911 audio dispatch recordings and CAD reports. In his firm's view, the names and telephone numbers of 911 callers who report motor vehicle collisions are not exempt under KRS 61.878(1)(a) as the callers "have voluntarily provided their names and sometimes their phone numbers[.]" 1 Consistent with Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994), Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013), and prior Open Records Decisions applying KRS 61.878(1)(a) in this context, most significantly 12-ORD-116, this office respectfully disagrees.
Despite its "manifest intention to enact a disclosure statute," 2 the General Assembly has mandated that certain records are not open for public inspection, including those "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) . 3 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 of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). In Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994), the Kentucky 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. . . . [T]he circumstances of a given case will affect the balance. Id. at 328." Zink at 828. The relevant "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. . . . [T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829. That purpose is not fostered, however, "by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct." Id. at 829; 12-ORD-227 (superior privacy interest attached to individuals "who had incidental contact with the" police department but were not charged with any crime and releasing names of the individual employees interviewed "would not significantly serve the public interest in monitoring the Department's execution of its official functions").
Having engaged in a "comparative weighing of antagonistic interests," the Court in Zink determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying access to personal information contained in the injury report forms that were submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. The privacy interests of the injured workers outweighed the interest of a lawyer seeking to solicit clients where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Id. at 829. In so holding, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and while dissemination of unsolicited information to injured workers might serve the "broad public interest, " it "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829.
Upon receiving notification of Mr. Bayers' appeal from this office, Assistant Jefferson County Attorney Annale E. Renneker responded on behalf of LMPD (and MetroSafe which, Ms. Renneker noted, is the "official records custodian of 911 calls and CAD reports"). 4 Having summarized the relevant portions of Zink , the agency conceded "that a recording of a 911 call for assistance in response to an alleged domestic violence situation," like that presented in Bowling v. Brandenburg, 37 S.W.3d 785, 788 (Ky. App. 1999), 5 for example, has different privacy implications than a 911 call reporting a motor vehicle collision. However, Ms. Renneker correctly observed that the "ultimate determination here is whether the disclosure of the witness caller's phone number would assist the public in evaluating MetroSafe's statutory duty 'to receive 911 calls . . . and, as appropriate, to dispatch public safety services or to extend, transfer, or relay 911 calls to appropriate public service agencies.' KRS 65.7621(17)." 6 Citing 06-ORD-230 (holding that public's interest in evaluating the agency's conduct by listening to recordings of 911 calls outweighed the privacy interests of the individual callers in their observations but affirming the agency's redaction of the 911 callers' names and telephone numbers ), LMPD reiterated its position that disclosing the name and telephone number of the citizen who called 911 does not further the relevant public interest; rather, disclosure of the records provided, namely the 911 audio recording and the CAD report, enables the public to sufficiently evaluate the actions of the agency. This office agrees.
In 12-ORD-116, this office affirmed the position of LMPD in applying Zink to facts which mirrored those presented here. The Attorney General concluded that LMPD did not violate the Open Records Act in providing a redacted copy of the "911 dispatch tape for [the requester's clients'] collision report" in response to a request. LMPD redacted the names, home addresses, home telephone numbers, and private cell phone numbers on the basis of KRS 61.878(1)(a). There, as in this case, no relevant public interest was identified that would outweigh the recognized privacy interests of the witnesses; the appellant relied upon the disputed facts and his clients' desire to interview the witnesses. 7 The instant appeal presents no basis to depart from the reasoning contained in 12-ORD-116, a copy of which is enclosed for the parties' reference. Just as the appellant's desire to interview the callers for the purpose of pursuing his clients' legal claim in 12-ORD-116 could not be said to "further the principal purpose of the Open Records Act, " Zink at 829, neither can that of Mr. Bayer and his firm. "Disclosure of identifying information relating to the callers will not advance the public's right to know how LMPD discharged its statutory duties and the callers' 'time-honored right to be left alone,' which the court recognized in Zink , should not be disturbed merely because they reported the accident to the appropriate agency for emergency response. Zink at 829." 12-ORD-116, p. 3.
The Kentucky Supreme Court subsequently affirmed the categorical redaction of personal information of private individuals contained in law enforcement records in Kentucky New Era, Inc. v. City of Hopkinsville at 83, recognizing that "[p]rivate citizens . . . have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, . . . the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. The City of Hopkinsville was providing the names of adults but addresses, telephone numbers, Social Security numbers, and other identifying information for crime victims, witnesses , and uncharged suspects had also been requested, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. The Court found this interest legitimate but did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87.
Agreeing that the Open Records Act prohibits " blanket denials of ORA requests," the Court in Kentucky New Era determined that the City of Hopkinsville's redaction policy was more accurately "referred to as a 'categorical' one." Id. at 88 (original emphasis). The Court observed that the City had "determined with respect to a particular, recurring class of information -- information identifying private citizens in its police reports -- the privacy/ public-interest balancing so characteristically tips in one direction -- privacy -- that it is appropriate to withhold, categorically, information in that class." Id. at 88. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption," the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. The Court found that the privacy interest of the individual with regard to information like that requested here "will almost always be substantial, and the public's interest in disclosure rarely so." Id.
This office has also had occasion to affirm the "categorical redaction" of identifying information of private individuals pursuant to Kentucky New Era in a variety of contexts when there was no basis on which to distinguish it. See 15-ORD-093 (personal information, including telephone numbers and home addresses of private individuals, "have no manifest bearing on how LMPD performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a)"); 16-ORD-188 (personal information such as telephone numbers, birth dates, and home addresses of private individuals "have no manifest bearing" on how the University of Louisville performed its public duties nor has it "been demonstrated or alleged that the names of students and private individuals" are "demonstrably necessary to a full examination of the University's performance of its duties"); 14-ORD-067; 14-ORD-108; 14-ORD-123; 14-ORD-127; 14-ORD-178; 16-ORD-120; 16-ORD-121. Consistent with Kentucky New Era , this office recently noted that names of private individuals may also be redacted "if there is no indication that their disclosure would serve the public purpose of the Open Records Act. " 17-ORD-004, p. 5. Thus, even if 12-ORD-116, applying Zink , was not directly on point, in the absence of any such indication the redaction of the names of the 911 callers by LMPD, as well as their telephone numbers, on the basis of KRS 61.878(1)(a) was justified under Kentucky New Era as construed in these decisions.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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