February 28, 1995

In re: Matthew J. Baker/City of Bowling Green


On behalf of his client, Betsy Kennedy, Mr. Matthew J. Baker challenges the City of Bowling Green's denial of his December 7, 1994, request to inspect "[t]he tape of a 911 phone call from Kentucky Fried Chicken to [Bowling Green Police Department] regarding an attempted robbery." Ms. Kennedy is the defendant in a pending criminal action, and the tape relates to the incident out of which the charges arose. On a preprinted "Public Records Inspection Application," Major William E. Moore denied Mr. Baker's request, signifying by a check in the appropriate space that "[t]he records requested are excluded from disclosure pursuant to 61.878(h) and (i) [sic] because tape is preliminary police investigatory information." (Emphasis denotes handwritten portion of response.)

We are asked to determine if the City of Bowling Green properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Baker's request. For the reasons set forth below, and upon the authorities cited, we conclude that the City failed to meet its statutory burden of proof relative to the invocation of these exceptions, and to that extent violated the provisions of the Open Records Act.

In a series of recent decisions, this office has taken the position that in denying access to properly excludable portions of records relating to 911 services, a public agency must provide particularized justification for its denial. 94-ORD-133; 94-ORD-144; 94-ORD-150. This position is premised on the notion that a law enforcement agency "is the servant of the people and if a citizen wants the services of the [agency] to investigate a crime, he cannot expect that the matter will be kept secret." OAG 80-144, p. 2, cited in 94-ORD-133, p. 6 and 94-ORD-144, p. 4. At page 6 of 94-ORD 133, we explained the underlying rationale:

Although we have recognized that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," and that it must on these occasions, "justify the refusal of inspection with specificity," we have generally ruled that "records of police departments showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection."

(Citations omitted.) Thus, refusal of inspection of any portion of a 911 tape must be justified with specificity and with reference to the particular statutory exemption upon which the agency relies.

KRS 61.878(1)(h) and (i) authorize the nondisclosure of:

(h) 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 inform- ants 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;

(i) Preliminary drafts, notes, corre- spondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]

Major Moore's bare assertion that the tape is "preliminary police investigatory information" sheds little light on how "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 . . . ." Nor does it suggest how the tape can properly be characterized as a "[p]reliminary draft [], note [], [or] correspondence with private individuals . . . ." [1]

Pursuant to KRS 61.880(2)(c), the public agency has the burden of proof in sustaining its denial of an open records request. It is the opinion of this office that the City of Bowling Green did not satisfy its burden of proof, and that it is obligated to release the disputed 911 tape forthwith. Although a preprinted form may facilitate prompt and efficient response to an open records request, there is a danger, demonstrated here, that a "fill in the blank" approach to discharging the duty imposed on public agencies by operation of KRS 61.880(1) may be unsatisfactory. We urge the City of Bowling Green to review its preprinted form with these observations in mind.

The City of Bowling Green may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Major William E. Moore,

Bowling Green Police Department

City Hall

1001 College Street

Bowling Green, KY 42102

Hon. Matthew J. Baker

Cole, Moore & McCracken

P.O. Box 10240

Bowling Green, KY 42102-7240


[1]The apparent basis for the assertion that the 911 tape is protected from disclosure by KRS 61.878(1)(i) is this office's opinion in OAG 90-117. That opinion was overruled in 94-ORD-133, p. 14, wherein this office held:Consistent with the rule of statutory construction codified at KRS 446.080(4) that "words and phrases shall be construed according to the common and approved usage of language . . . ," we believe that the term "correspondence" in KRS 61.878(1)(i) means "communication by exchange of letters," or "the letters exchange." Webster's II New Riverside University Dictionary (1988). The term cannot be construed to apply to oral complaints or communications recorded on an audio tape or to written notations appearing on a dispatch log which memorialize those complaints or communications.