Wlex Communications v. Lexington-Fayette Urban County Government, No. 2005-CA-002453-MR (Ky. App. 5/4/2007)
| Decision Date | 04 May 2007 |
| Docket Number | No. 2005-CA-002453-MR.,2005-CA-002453-MR. |
| Parties | WLEX COMMUNICATIONS, LLC Appellant v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT Appellee. |
| Court | Kentucky Court of Appeals |
C. Timothy Cone, Elizabeth S. Hughes, Lexington, Kentucky, Brief for Appellant.
Elizabeth S. Hughes, Lexington, Kentucky, Oral Argument for Appellant.
Leslye M. Bowman, Michael R. Sanner Lexington, Kentucky, Brief for Appellee.
Michael R. Sanner, Lexington, Kentucky, Oral Argument for Appellee.
Before: COMBS, Chief Judge; MOORE and NICKELL, Judges.
WLEX Communications, LLC, appeals from a summary judgment of the Fayette Circuit Court entered November 1, 2005, in favor of the Lexington-Fayette Urban County Government (LFUCG). WLEX, a local television news broadcaster, alleged that the government had violated provisions of Kentucky's Open Records Act (KRS 61.870-61.884) by failing to make available a copy of the recording of a 911 telephone call placed to the Division of Police. For the reasons that follow, we dismiss this appeal.
In a note dated April 27, 2004, Leigh Searcy, a reporter for WLEX, requested LFUCG's Chief of Police to prepare copies of "a call to the Lexington Police 911 Center concerning a student with a medical problem on a school bus on April 21, 2004 at around 3:30 PM." Searcy directed the Chief of Police to notify Mike Taylor at WLEX once the copies were made available.
By correspondence addressed to Mr. Taylor dated May 4, 2004, the Division of Police formally denied Searcy's request. LFUCG stated two reasons for declining to authorize release of the material: (1) because the telephone call was made by a juvenile whose privacy it was required to protect and (2) because the matter had been transferred to the Division of Fire: The correspondence was prepared by a Communications Unit Assistant, who noted that he was available to address any questions with respect to the request. WLEX made no response nor did it pursue the matter further with LFUCG.
Nearly two months later, the Office of the Attorney General notified LFUCG that Taylor had appealed the decision to deny Searcy's request for a copy of the 911 recording. In its correspondence, the attorney general requested a copy of the disputed recording and asked whether it was LFUCG's position that the public disclosure of 911 recordings was unauthorized as a matter of law.
By letter dated July 6, 2004, LFUCG responded to the attorney general and explained that Searcy's request for material had been denied pursuant to relevant statutory and case law. Citing our holding in Bowling v. Brandenburg, 37 S.W.3d 785 (Ky.App. 2001), LFUCG noted that the public's right to know the contents of the 911 recording must yield to the legitimate privacy interests of the person who had called for emergency assistance. LFUCG argued that a release of the requested information could not only have an adverse affect upon the person (in this case, a juvenile) who placed the disputed call but that it could also be expected to have a chilling effect upon citizens' use of the 911 system. LFUCG indicated that it was willing to provide a summary of the 911 call dispatch with all the collected personal data redacted.
As noted earlier, LFUCG initially believed that no such record existed. Since the call was of a medical nature, standard operating procedure would dictate that it be forwarded to the Division of Fire and Emergency Services. Normally under such circumstances involving a medical situation with no criminal activity alleged, a summary of a 911 call would not be made. However, further research indicated that police officers were in fact dispatched to the scene. Thus, after discovering this additional fact, LFUCG attached a copy of the summary to the correspondence and forwarded another copy directly to Taylor as a supplemental response to Searcy's request on behalf of WLEX. LFUCG argued that this redacted information gave WLEX proper insight into the government's response as contemplated by the Open Records Act by protecting the privacy of the individual caller and not compromising recourse to the 911 system.
In separate correspondence to the attorney general, dated July 7, 2004, LFUCG explained that it could not provide a copy of the 911 call recording as requested by that office because the computer-generated material had been destroyed — pursuant to a regular retention schedule — nearly two weeks before LFUCG received any indication that WLEX would challenge its decision. (As noted earlier, nearly two months passed between LFUCG's first correspondence denying the request before Taylor challenged that denial before the attorney general.)
On September 9, 2004, the attorney general issued its Open Records Decision. The attorney general concluded that while LFUCG had articulated a good-faith argument in support of its position to decline to disclose the information, it had nonetheless improperly denied Searcy's request for access to the material. The attorney general found as follows:
While we agree that LFUCG may present proof, on a case-specific basis, to sustain its denial of a request for a particular 911 recording, the question of "whether an invasion of privacy is `clearly unwarranted' is intrinsically situational, and can only be determined within a specific context," Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) cited in Bowling at 787. The proof presented by LFUCG, in the instant appeal, does not sustain its denial of WLEX-TV's request.
* * * *
The decision of the Court of Appeals in Bowling turned, in large part, on the context of domestic violence out of which it arose, and the likelihood that in that context the caller would be subject to retaliation, harassment, or public ridicule. Neither of these factors is present in the instant appeal. Assuming arguendo that the caller's identity could be determined through voice identification technology, he need not be concerned with the potential for retaliation, harassment, or public ridicule. His were the actions of a quick-thinking youth who courageously responded to a serious medical emergency, and are more likely to result in accolades than insults. Accordingly, his privacy interest is reduced. Conversely, the public's interest in the actions of the bus driver, as a public servant discharging his or her public function, the 911 operation, as a public servant discharging his or her public function, and the responding police officers, as public servants discharging their public function, which are captured on the 911 recording, are significant indeed. The written summary which LFUCG belatedly offers as an alternative to the actual tape only dimly reflect[s] what transpired in the course of the 911 call and is subject to editing. While the summary is the preferred alternative to total nondisclosure, in cases where a heightened privacy interest outweighs the public's interest in disclosure, it is not an adequate substitute for the actual tape in the case on appeal. In this case, the public's right to know the contents of the 911 tape recording outweighs the minimal privacy interest of the student who placed the call to obtain emergency assistance. We therefore find that LFUCG improperly withheld the tape.
With respect to destruction of the computer-generated recording of the 911 call, the attorney general observed as follows:
We are obligated to note that the requested record was apparently destroyed in the regular course of business after WLEX-TV submitted its open records request but before WLEX-TV initiated this open records appeal. Unfortunately, the record is no longer available for inspection.
The attorney general found no evidence to suggest that LFUCG had willfully concealed a public record.
On October 8, 2004, LFUCG filed an action in Fayette Circuit Court to appeal the decision of the attorney general. LFUCG alleged that the attorney general had erred in concluding that it had improperly withheld the contents of the 911 recording from public...
To continue reading
Request your trial