TO BE PUBLISHED 

94-ORD-133

November 9, 1994

IN RE: The Kentucky Standard/Nelson County Dispatch Center

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Mr. Steve Lowery, publisher of The Kentucky Standard, to Mr. John David "Jack" Seay, Assistant Nelson County Attorney, on September 15, 1993. Mr. Lowery requested that he be furnished with "unedited copies of police blotters kept by the '911' dispatchers at the Nelson County Dispatch Center." On September 22, Mr. Lowery amended his request, asking that he be afforded access to the "daily logs kept by the Nelson County dispatch center that include all communication--including names--dealing with all law enforcement agencies in Nelson County." Relying on KRS 61.878(1)(a) and (h), now codified and hereinafter referred to as KRS 61.878(1)(a) and (i), Mr. Seay denied both requests.

In his initial response, Mr. Seay noted that the "dispatch log contains requests from citizens seeking police or other emergency assistance by placing a '911' telephone call," and refers "only incidentally," to persons who are arrested. He explained that the Dispatch Center currently releases its "911" dispatch log after redacting the names of callers and any other identifying information. This policy is, in Mr. Seay's view, consistent with OAG 90-117 in which this Office held that "disclosure of a complainant's identity by providing a copy of [a '911'] tape would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information." OAG 90-117, p. 4. Adopting the reasoning of this opinion, Mr. Seay argued that release of these records would have a potential chilling effect on the use of the "911" system by callers who do not want their identities

revealed. Additionally, he noted that OAG 90-117 authorized nondisclosure of the tapes, and by extension, the dispatch log, on the basis of KRS 61.878(1)(i) which exempts "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]"

Elaborating on this position in a subsequent response, Mr. Seay provided a detailed explanation of the Dispatch Center's policy relative to each type of call received over its "911" system. He again expressed the view that notations on the dispatch log reflecting emergency "911" calls were exempt pursuant to KRS 61.878(1)(a) and (i). It was his position that this protection extended to the identities of callers and the identities of the individuals against whom allegations were made. Mr. Seay expressed a similar view on the issue of disclosure of notations reflecting nonemergency calls, maintaining that these notations were also exempt pursuant to KRS 61.878(1)(a) and (i).

Mr. Seay indicated that the dispatchers also record "miscellaneous radio communications between the dispatch center and law enforcement personnel in the field." As an example, he noted that an officer may contact the dispatcher by radio to request an automobile registration check. All "identifying information" recorded on the log which relates to these calls is, in his view, exempt from disclosure pursuant to KRS 61.878(1)(i).

With respect to identifying information appearing on the dispatch log relative to ambulance calls, Mr. Seay stated that the parties were in agreement that "such information is exempt from disclosure," and that it was his understanding that Mr. Lowery therefore did not seek "information concerning identities of persons carried by the ambulance." In light of this understanding, he advised "that regardless of the final outcome of [Mr. Lowery's] other requests, there will be some editing on the logs due to ambulance runs also being included on the logs."

Finally, Mr. Seay denied Mr. Lowery access to names and identifying information relating to fire department runs which appears on the dispatch log. Relying on KRS 61.878(1)(a) and (i), he explained that such information is edited "because of the frequency of false or mistaken calls." Moreover, he observed, a fire run "may be the subject of an arson investigation and thus of a sensitive nature." Based on these

considerations, Mr. Seay could not "justify release of the unedited dispatch log."

On behalf of his clients, The Kentucky Standard and Mr. Lowery, Mr. Jon L. Fleischaker requests that this Office review the Nelson County Dispatch Center's policy relative to the release of its edited dispatch log pursuant to KRS 61.880(2). Mr. Fleischaker maintains that the "blanket editing of records is not support by any of the 'strictly construed' exceptions to the Open Records Law." Although he concedes that on occasion information in a particular entry may be redacted from the records, pursuant to KRS 61.878(4), "when supported by a specific exception," he argues that "communication log entries relating to law enforcement and fire department runs must be released in their original, unedited form." He rejects Mr. Seay's invocation of KRS 61.878(1)(a), the privacy exception, "because, quite simply, there are no privacy interests at stake."

Continuing, Mr. Fleischaker observes:

Mr. Fleischaker notes that an individual who reports a fire or crime cannot reasonably expect that his or her privacy interests will be protected "when the several screaming, flashing, bright red engines come barreling down his [or her] street in response" or when he or she "must . . . stand in open court and testify fully concerning [the reported crime]."

Moreover, Mr. Fleischaker asserts that as a matter of law "an individual has no right of privacy in matters of public interest." Citing University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373, 377 (1992) and OAG 91-131, he argues that when a person placed a 911 call, "he or she necessarily waives

a certain amount of privacy." In addition, he notes that the Kentucky Supreme Court has firmly established that the privacy exception only extends to records which contain information that "touches upon the most intimate and personal features of private lives." Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324, 328 (1992). Inasmuch as the Dispatch Center has not shown that the unedited logs touch upon the intimate and personal features of private lives, it cannot, in his view, justify blanket nondisclosure of names and identifying information.

Mr. Fleischaker distinguished OAG 90-117, which affirmed a public agency's policy of withholding audio tapes of 911 calls because the tapes would reveal the caller's identity.

He observes:

Mr. Fleischaker urges this Office to reevaluate the Dispatch Center's policy in light of University of Kentucky v. Courier-Journal, supra, which counsels a narrow interpretation of KRS 61.878(1)(a). "[T]here can be no doubt," he maintains, "that the privacy exemption is applicable only in extreme cases where there is no legitimate public interest involved." Since this argument cannot be made with respect to "911" logs, he takes the position that they must be released.

Mr. Fleischaker argues that Mr. Seay's reliance on KRS 61.878(1)(i), relating to correspondence with private individuals, "is misplaced insofar as it represents a strained construction of the term 'correspondence.'" Citing Webster's Ninth New Collegiate Dictionary (1991), he observes that that term denotes "communication by letters," and that the documents sought by The Kentucky Standard are not letters. Accordingly, that exemption is, in his opinion, inapplicable.

In closing, Mr. Fleischaker reasons:

It is Mr. Fleischaker's position that the public cannot "effectively monitor" the performance of the Nelson County police and fire departments without access to the callers' identities.

We are asked to determine if the Nelson County Dispatch Center properly relied on KRS 61.878(1)(a) and (i) in adopting a policy of blanket nondisclosure relative to names and other identifying information appearing on its dispatch log. For the reasons set forth below, we conclude that the Center's policy violates the Open Records Law.

In a series of opinions dating back to the enactment of the Open Records Law, this Office has recognized that records of law enforcement agencies are, in general, subject to public inspection unless they are specifically exempted by statute. OAG 76-478. In that opinion, we observed:

OAG 76-478, at p. 2. We subsequently confirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." OAG 76-511, at p. 4.

This principle has been refined over time with respect to various categories of records, including dispatch logs. 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." OAG 77-102, at p. 2; see also OAG 82-70; OAG 89-20; OAG 89-68; 93-ORD-41. An even stronger statement of this principle is found at page 2 of OAG 80-144, where we held:

We believe that the logic of that opinion can be extended to dispatch logs generally.

OAG 82-70, p. 2, 3. We concluded that opinion by noting that Kentucky has no privacy statutes, and that the Open Records Law does not prohibit release of otherwise exempt records. Because the exceptions are permissive, and the custodian of records is not exposed to any penalty if he releases exempt records, a dispatch center must make its log available for inspection in an unedited form, or, if it elects to edit a particular entry, justify that withholding by reference to a specific statutory exception.

In a similar vein, at page 3 of OAG 89-20 we held:

The Nelson County Dispatch Center has acknowledged these principles in the past by honoring requests to view the dispatch log, albeit in an edited form. The parties are therefore substantially in agreement.

The narrow issue presented in this appeal is whether, as a matter of policy, the Nelson County Dispatch Center can withhold the names of individuals using the "911" service and other identifying information which appears on the dispatch log. We find no support for the Dispatch Center's policy in this jurisdiction.

As noted, this Office has consistently recognized that exclusion of particular entries on a dispatch log must be "articulated in terms of the requirements of the statute." OAG 89-20, p. 3. The focus in our earlier opinions was on the "law enforcement exception" to the Open Records Law, KRS 61.878(1)(h). Mr. Seay focuses on the privacy exception and OAG 90-117. In our view, a generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of that law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the "basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest." KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, "If any public record contains material which is not excepted under

[KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination."

Among the documents which may be excluded from the mandatory disclosure provisions of the Open Records Law are:

KRS 61.878(1)(a). In Kentucky Board of Examiners of Psychologists v. the Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court analyzed this exception at length. Acknowledging that the Open Records Law "exhibits a general bias favoring disclosure," Kentucky Board of Examiners, supra at 327, the Court formulated a balancing test to be used in assessing the propriety of an agency's invocation of the privacy exception. The Court reasoned:

Kentucky Board of Examiners, supra at 327, 328. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Kentucky Board of Examiners, supra at 328.

The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his or her life. The fundamental purpose of the Nelson County Dispatch Center is to ensure public safety and welfare by providing effective law enforcement and emergency services to persons who reside in Nelson County and who avail themselves of these services by using the "911" system. The Dispatch Center currently releases its log after editing out the names and identifying information of callers and person against whom complaints are made. Mr. Fleischaker argues that the public cannot effectively monitor the performance of the police and fire departments without access to the various callers' identities.

Mr. Seay does not identify, with any degree of specificity, the nature of the privacy interests implicated by release of the dispatch log. He maintains, generally, that release of the unedited log is likely to have a chilling effect on the use of the "911" system. Nor, on the other hand, does Mr. Fleischaker substantiate his position relative to the public interest in monitoring the performance of the police and fire departments. He does not explain how the public's ability to monitor the Dispatch Center's performance will be hindered by the Center's failure to release the callers' identities.

Nevertheless, the competing interests are clear and important. As noted, the public's right to know is premised upon the public's right to expect its agencies to execute their statutory functions. Release of the identities of callers will facilitate the public's ability to monitor the Dispatch Center's performance by enabling the public to ascertain who, if anyone, is misusing or abusing the system by making unreasonable demands on the service, or calling in false reports. Further, release of the caller's identities will enable the public to assess the effectiveness of the services through direct communication with persons who have availed themselves of the services. Finally, release of the caller's identities will enable the public to evaluate whether services are rendered in a uniform matter regardless of the callers' identities.

The countervailing privacy interests are equally identifiable and important. Release of the callers' identities

in conjunction with the details of a particular call may disclose the personal features of the caller's private life.¹ Moreover, the caller may have a legitimate desire to avoid disclosure. The law recognizes confidential informants and the right to keep their identities confidential. Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957); KRS 422A.0508 (KRE 508); KRS 61.878(1)(h); KRS 17.150(2)(a). Thus, an argument can be made that requiring disclosure of the identities of individuals who furnish information of violations of law to law enforcement agencies may hinder effective law enforcement.² In addition, use of the "911" system is frequently precipitated by occurrences resulting in personal tragedy or loss. Callers have a cognizable privacy interest in the nonrelease of their identities to certain predatory types who might exploit these tragedies for personal gain.³

These competing interests are equally compelling. In such instances, and in view of the fact that "[t]he Act's 'basic policy' is to afford free and open examination of public records and all exceptions must be strictly construed," Kentucky Board of Examiners, supra at 327, we are left with no alternative but to find that, as a matter of policy, the Dispatch Center is foreclosed from adopting a policy of blanket exclusion relative to names and identifying information