99ORD131 Page 5 NOT TO BE PUBLISHED 99ORD131 August

99-ord-131 page 5 not to be published 99-ord-131 august 4, 1999 in re: joel d. catron/city of monticello open

99-ORD-131
Page 5
NOT TO BE PUBLISHED
99-ORD-131
August 4, 1999
In re: Joel D. Catron/City of Monticello
Open Records Decision
This matter is before the Attorney General on appeal from the actions
of the City of Monticello in response to Joel D. Catron’s open records
request to inspect the audio tapes of phone calls coming into and
going out of the 911 dispatch center from April 1, 1999 through June
14, 1999.
Gordon T. Germain, Attorney, responding on behalf of the City, denied
Mr. Catron’s request in part, stating:
[W]e respectfully decline to make all of those [audio tapes] available
to you. If you will specify the particular call or the individuals
connected with particular calls, or the time periods of particular
calls, we will make those available to you after reviewing same to
make sure we are not violating privacy rights or releasing sensitive
or confidential information relating to any ongoing investigations.
In his letter of appeal, Mr. Catron argues, in relevant part:
The City states they wish specific conversations and specific dates
and times, if this be the case these are not open records but rather
controlled records. It is my belief that these are open records and
are subject for public review (under the laws of the Commonwealth) and
not subject to the review of City officials to determine whether or
not the items in question exist or whether or not the City chooses to
release the same.
The question presented in this appeal is whether the City violated the
Open Records Act in its response denying Mr. Catron’s request to
inspect all the 911 audio tapes within the requested period. For the
reasons that follow, we conclude that the City improperly denied the
request by failing to set forth a sufficient basis for withholding
access to all the tapes and must make them available for inspection.
In 94-ORD-133, this office engaged in a lengthy analysis of a 911
dispatch center’s blanket policy of denying access to its dispatch log
on the basis of either KRS 61.878(1)(a) or (h). There we held that a
generic determination that certain categories of information are
excluded from the application of the Open Records Law under these
exceptions, or any other exception, does not satisfy the requirements
of the law. Exclusion of particular entries on a dispatch log, we
concluded, must instead be articulated in terms of the requirements of
the statute such as KRS 61.878(1)(a) or (h). In 94-ORD-144, we
extended this holding to audio tapes of 911 calls. Although we
recognized that an agency might assign greater weight to the privacy
interests of a caller whose voice appears on the tape, since his or
her identity might be determined through voice identification and
therefore cannot be protected, we again held that a policy of blanket
denial of access to 911 tapes was improper. We concluded that “refusal
of inspection of any portion of the tapes must be justified with
specificity and with reference to the particular statutory exemption
upon which the agency relies.” 94-ORD-144, p. 4. Shortly thereafter,
the Attorney General expressly held that a city police department
failed to articulate a sufficient legal basis for its denial of a
request for the 911 tape for a one and one-half hour period on a
specific date. 90-ORD-150. See also 98-ORD-31 (holding that Lexington
Fayette Urban County Government improperly withheld tape containing
conversation between Division of Fire and Emergency Services employee
and another employee on a telephone line dedicated to public use for
911 emergency calls).
In the instant appeal, the City denied Mr. Catron’s request to make
all the 911 audio tapes from April 1, 1999 through June 14, 1999
available for inspection, but offered to make available to him
particular tapes if he would “specify the particular call or the
individuals connected to particular calls, or the time periods of
particular calls,” after reviewing the requested tapes to ensure the
City was not “violating privacy rights or releasing sensitive or
confidential information relating to any ongoing investigations.”
Although the City’s denial was not a blanket denial, it amounted to
one. The City did not deny access to any particular document, but
required Mr. Catron to identify particular calls, persons, or time
periods, if he wanted to inspect any of the audio tapes during the
relevant period. No basis was set forth by the City for denying
inspection of all the tapes during the period. Refusal of inspection
of any portion of the tapes must be justified with specificity and
with reference to the particular statutory exemption upon which the
agency relies. 94-ORD-144.
For example, under KRS 61.872(6), the burden is on the public agency
to demonstrate with clear and convincing evidence the burdensomeness
of a request. Here, no evidence was presented by the City showing that
to allow inspection of all the tapes or to require it to review the
tapes to separate exempt from nonexempt materials prior to production
of all the tapes would place an unreasonable burden on the City.
Accordingly, we conclude that the City’s denial of the request to
inspect all the 911 audio tapes within the specified time period was a
violation of the Open Records Act. This is not to say that the City
may not have an appropriate basis to deny inspection of portions of
the 911 audio tapes during the requested period under one of the
exceptions codified at KRS 61.878(1), but that it has failed to set
forth a proper basis for such action in this instance.
It is the decision of this office that the 911 audio tapes during the
specified time period should be made available for Mr. Catron’s
inspection. If the tapes contain both excepted and nonexcepted
material, the City may, pursuant to KRS 61.878(4), separate the
excepted material and make the nonexcepted material available. For the
withheld portions, the City should cite the specific exception which
authorizes the nondisclosure and a brief explanation of how the cited
exception applies to the portion of the tapes withheld.
A party aggrieved by this decision may appeal it by initiating action
in the appropriate circuit court pursuant to 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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#447
Distributed to:
Joel D. Catron
RR # 2, Box 2895
Monticello KY 42633
Gordon T. Germain
Attorney at Law
110 Locust Street
Monticello KY 42633
Kenneth D. Catron, Mayor
City of Monticello
P.O. Box 550
Monticello KY 42633