NOT TO BE PUBLISHED 

94-ORD-150

December 15, 1994

IN RE: M. Alex Rowady/City of Winchester

OPEN RECORDS DECISION

This appeal originated in a request to inspect a public record submitted by Mr. M. Alex Rowady to the City of Winchester. On April 20, 1994, Mr. Rowady requested access to the "[r]ecord of 9-1-1 emergency calls to the Winchester Police Department on Saturday, April 9, 1994 between the hours of 2:30 and 4:00 p.m." Mr. Ed Burtner, City Manager, responded to Mr. Rowady's request on April 21, 1994, advising him that his request was denied "under KRS 61.878(1)(a) as elaborated upon in OAG 90-117."

In a subsequent letter to Mr. Burtner, Mr. Rowady attempted to clarify his request. He explained:

Because Mr. Rowady was not interested in the identity of the caller, he suggested that the individual's name be deleted from the transcript. Mr. Burtner denied Mr. Rowady's amended request, advising him that "OAG 90-117 seems to the City Attorney to be perfectly in point." Reaffirming the City's reliance on KRS 61.878(1)(a), he also invoked KRS 61.878(1)(h), now codified and hereinafter referred to as KRS 61.878(1)(i).

The question presented in this open records appeal is whether the City of Winchester properly relied on KRS 61.878(1)(a) and (i), and this office's opinion in OAG 90-117, in denying Mr. Rowady's request. For the reasons set forth below, we conclude that unless the City can provide particularized justification for its denial of that portion of the 911 audio tape requested by Mr. Rowady by articulating the reasons for denial in terms of the requirements of KRS 61.878(1)(a), it cannot properly withhold the tape. However, the City is not obligated to provide Mr. Rowady with a written transcript of the tape, but is only required to release the record in the format in which it is currently maintained.

In 94-ORD-133, this office addressed the question of whether a 911 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. There we concluded that 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 the law. Exclusion of particular entries on a dispatch log must, instead, be articulated in terms of the requirements of the statute. Thus, in the absence of a particularized showing that a given notation was properly withheld, a dispatch center cannot exclude those entries. We also expressly overruled that portion of OAG 90-117 in which we held that audio tapes of 911 calls were exempt under KRS 61.878(1)(g), now (i), relating to correspondence with private individuals, concluding that that provision does not extend to communications by telephone. A copy of the decision is attached hereto, and incorporated by reference.

Disclosure of an audio tape of a 911 call raises unique privacy concerns. At page 13 of 94-ORD-133, we recognized this fact, noting that release of a written dispatch log cannot be equated with the release of an audio tape. In assessing the privacy interests implicated by a written log, we reasoned:

Individuals may utilize the service without identifying themselves, and their identities will be protected. Alternatively, they can request that their identities not be disclosed. The identities of these individuals could be protected upon a showing that they requested or could reasonably expect confidentiality.

In contrast, "[i]t is simply not feasible to protect the complainant's identity if a copy of the audio recording of [his or] her voice is released." OAG 90-117, p. 4. "Providing a copy of the tape or even providing an edited version with the complainant's name and address deleted, would not prevent the possibility that the complainant could be identified by listening to [his or] her voice." OAG 90-117, p. 4. For this reason, there is a heightened privacy interest in the disclosure of a 911 audio tape.

While we believe that it is entirely appropriate for the City of Winchester to assign this privacy interest greater weight in analyzing the competing interest and determining whether it will release the contents of a given call, we are not persuaded that the interest is, in every instance, superior to the public's interest in disclosure. Not every report of criminal activity raises privacy concerns of sufficient weight that those concerns clearly outweigh the public's right of access.

Based on the limited facts which we have before us, we cannot determine whether in this particular case the privacy interests of the caller are indeed superior to the public's interest in disclosure. We have not been advised whether the caller requested anonymity, and thus has a greater expectation of privacy in the tape. Nor have we been advised what public interest would be served by disclosure. Since, however, the burden of proof in sustaining a denial rests with the public agency, and the City has failed to meet its burden by explaining how the caller's privacy interests are superior to the public's interest in disclosure, we are left with no alternative but to find that the City improperly withheld the 911 audio tape. KRS 61.880(2)(c); KRS 61.882(3).

The City of Winchester is not, however, obligated to provide Mr. Rowady with a written transcript of the tape, unless it elects to do so. KRS 61.874(3) provides:

If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.

If the City does not elect to provide the tape in the requested format, "what [Mr. Rowady] gets is what [the City has] and in the format in which [the City has] it." OAG 91-12, p. 5.

The City of Winchester and Mr. Rowady 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/735

Attachment: 94-ORD-133

Distributed to:

Mr. Ed Burtner, City Manager

City of Winchester

P.O. Box 40

Winchester, KY 40392-0040

Hon. M. Alex Rowady

7 Cleveland Street

P.O. Box 57

Winchester, KY 40392-0057