Rockcastle County 911 Board failed to prove harm in releasing tape and dispatch log

The Rockcastle County 911 Board violated the state Open Records Act by failing to prove that a tape and dispatch log were exempt from disclosure, the attorney general's office has ruled.

In originally denying the request, the board indicated that the records were “unavailable because of an ongoing investigation.” While this is a valid reason for exempting a public record under KRS 61.878(1)(h), the board did not cite the statute in its denial (violation of the procedural requirements) and also failed to prove that release of the record would harm the Mount Vernon Police Department (violation of the substantive requirements).

After privately reviewing the tape and dispatch log, the attorney general’s office confirmed that the records were of radio communications concerning a traffic stop. However, because the records only contained general information and not primary evidence, the office decided that disclosure would not weaken the board’s case, hinder its investigation, or taint the jury pool. It said the board did not overcome the presumption in the act that records are public.

Conway tells Shelby County to release records of law-enforcement calls to a certain address

Shelby County's 911 emergency dispatch service violated Kentucky's Open Records Act in denying a records request by a Shelbyville resident, Attorney General Jack Conway ruled last week.

The decision, which has the force of law, came in an appeal filed by Antoinette Taylor. She had asked for information on law-enforcement runs to 103 Grey Hawk Drive, Shelbyville, between May and September of this year. Taylor, who is listed as head of Act Now Ministries at 101 Grey Hawk Drive, could not be reached for comment.

Shelby County E911 Communications refused to give Taylor the data, citing a provision of the Open Records Act that exempts from disclosure records that "constitute an unwarranted invasion of privacy" of those involved. However, the attorney general's ruling said "The weight of legal authority, coupled with the facts of this case, militate in favor of disclosure." The decision noted that decisions on exceptions from the law must be made on an individual basis, not as a blanket rule, and that the agency claiming such an exemption must provide proof to support it.

The ruling also cited a previously unpublished decision of the Kentucky Court of Appeals in January 2009, before the Kentucky Open Government Blog began. The three-judge panel voted 2-1 to order the Marshall County E911 board to release call recordings, not just data about calls. The appeals court noted that there were competing interests between "the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies." It noted that possible embarrassment to the caller in that case was insufficient, and that all such decisions are "intrinsically situational, and can only be determined" on a case-by-case basis.

For the full text of the attorney general's decision, see Links of Interest at the bottom of the KOG Blog. For the appeals court decision, go here.

Senator reintroduces bill on 911 calls

A Northern Kentucky state senator has reintroduced a bill for the upcoming legislative session to prohibit the broadcast of 911 recordings.

Sen. John Schickel, R-Union, has argued that the bill would protect the identity of people making 911 calls, although identifying information would still be available in transcripts.

The Society of Professional Journalists published a letter Tuesday urging a similar bill in Ohio be withdrawn, saying it would diminish the news media's ability to report on breaking events.

"If audio recordings are banned from the public airwaves then it will be virtually impossible for citizens to hear how calls are being handled and effectively hold emergency response centers accountable," the SPJ letter said. "Ohio courts traditionally have ruled in favor of disclosure of 911 tapes for all to hear for good reason - it ensures the public trust in its institutions regarding the safety and welfare of citizens."

When Schickel introduced the bill in the 2009 session, he said he wanted to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. The bill passed the Senate in the 2009 session but failed to pass the House.

Last year, the Kentucky bill was opposed by the Kentucky Press Association and the Kentucky Broadcasters Association, even though both organizations noted that such calls are rarely actually broadcast. In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike.

The bill, SB 308, would "restrict the availability of recordings of 911 communications to releases by court order," but would allow written transcripts.

Columnist blasts 911 bill

The bill to prohibit broadcast of 911 call recordings, expected to be reintroduced in next year's legislative session by Sen. John Schickel, R-Union, drew a blast from Jim Waters of the libertarian Bluegrass Institute for Public Policy Solutions in his weekly column. Noting that state open records laws don't make exceptions for "unpleasant" content in some 911 calls, Waters accused Schickel of "pandering to privacy advocates."

"The public makes the calls," Waters wrote. "The calls go to a public agency. Public agencies respond to the calls. And in fact, some of that unpleasant content reveals less-than-stellar performances by emergency dispatchers and law enforcement – a service to the public.The bill smacks of silliness, poor logic and court challenges." To read the column, click here.

Conway concerned about bill for new agency; Stumbo says changes coming Monday

Attorney General Jack Conway has raised what appear to be his first public questions about legislation to create an investigative arm of the legislature not subject to the open-records law or subpoenas.

“Transparency in government is very important to me,” Conway told Bill Bryant Friday in an interview for "27 Newsmakers," aired today on Lexington's WKYT-TV. ”We’re getting into separation-of-powers issues here, and I have some concerns.”

Conway had not previously voiced an opinion about the identical bills filed by Republican Senate President David Williams and Democratic House Speaker Greg Stumbo. He indicated that he had hoped to meet with them about it but had been unsuccessful. “I would hope they would give me the opportunity to express my concerns,” he said.

Conway indicated he also had problems with the legislature creating an agency that would perform some of the same investigative functions performed by his office. “To have the legislature create an investigative agency when our budget is cut, I have some concerns,” he said. The bills are Senate Bill 188 and House Bill 540.

Stumbo, who preceded Conway as attorney general, said yesterday that his bill will be amended to address some concerns. "A provision compelling the independently elected state auditor and attorney general to cooperate with the agency's investigators is likely to be dropped," Tom Loftus reports in The Courier-Journal. "And he said language exempting its records from release under subpoena or court order is likely to be modified. ... Details will be explained Monday, he said." (Read more) Stumbo's bill is in the House State Government Committee.

On another legislative issue, Conway said 911 emergency calls should remain public records, but parts of the calls that compromise personal privacy, such as "medical records or descriptions," should be redacted from records provided under the Open Records Act. Senate Bill 30, which would restrict access to 911 calls, passed the Senate 27-9 and is now in the House Judiciary Committee.

Senate passes bill to keeep 911 tapes secret

A bill to keep 911 emergency calls from being broadcast on radio or television, or posted on Web sites, passed the state Senate this afternoon, 27-9. It is expected to face a tougher time in the House.

One of those voting against Senate Bill 30 was Sen. Kathy Stein, D-Lexington. She said that as a prosecutor of domestic-violence cases, she had found 911 tapes very useful because "victims of domestic violence are very reluctant to come to court and name the person who perpetrated that." She said the recordings show "the terror in her voice." Speaking of current prosecutors, she said, "I'm very fearful it might make them hesitant to use those tapes" because "other persons would be able to record those surreptitiously."

In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike. The bill passed with both floor amendments, mentioned in previous blog posts.

911 bill delayed; sponsor has floor amendment

A bill to keep recordings of 911 emergency calls secret is still awaiting a floor vote in the state Senate, following a floor amendment by the sponsor, Sen. John Schickel, R-Union (Boone County). His amendment would change references to "tape" in the bill to "recording," presumably reflecting the fact that many if not most 911 recordings are now stored on digital media, not tape. It would also change an apparently mistaken reference to laws governing inspection of records. To read the amendment, click here. To read the current version of the bill, Senate Bill 30, click here.

Earlier, Sen. Ray Jones, D-Pikeville, filed a floor amendment to allow attorneys to get a copy of 911 recordings by subpoena rather than by court order, as the bill would require. For the Web page that tracks the bill, click here. The bill is expected to pass the Senate but face a more difficult time in the House of Representatives.

911 calls: Better a matter of journalism ethics than state legislation

As the bill to ban public airing of 911 calls in Kentucky heads for passage in the state Senate, perhaps today, it gets national notice from Princeton native Al Tompkins, group leader for broadcast and online journalism at The Poynter Institute and a member of the Kentucky Journalism Hall of Fame. "It's a bad idea," Tompkins says, and explains why. But he also takes the topic beyond the legislative and legal realms into the ethical, where we think it belongs.

First, the reasons it's a bad idea, with links to examples: Airing 911 calls can "provide important insight into criminal cases;" show how dispatchers give bad directions, make these and other errors and ignore repeated calls; and reveal how people abuse the service. "It is nowhere near as effective if we do not have actual access to the 911 calls," Tompkins says of the last example, and it can also apply to his earlier ones.

Supporters of the bill say they're motivated by compassion for victims and their privacy. Those are factors journalists should consider before broadcasting 911 calls or posting them on Web sites, Tompkins writes in today's "Al's Morning Meeting" on the Poynter site: "One reason we may be seeing this kind of legislative blowback is because of the misconception that journalists only use 911 calls to make stories more sensational. My Poynter colleague Bob Steele and I wrote ethical guidelines for when and how to use 911 calls on the air and online."

That process starts with questions: "Does using the call help better tell the story in a way that is not sensational? Can the 911 tape illuminate broader issues about the 911 system and its effectiveness? Can using the tape help critically examine the 911 system or help illustrate how effectively the system works? Other concerns include the age, mental capacity, community prominence and situational stress of the caller, and the potential impact on the caller and family." Tompkins and Steele offer many other questions and considerations. For their full set of guidelines, click here. A click on that link could help you make a better decision -- and perhaps, if this bill fails, avoid providing ammunition for similar measures in the future.

Senate panel OKs 911 bill; fight to be in House

A bill to keep 911 emergency calls from being broadcast on radio or television, or posted on Web sites, sailed through the state Senate Judiciary Committee on Thursday, heading for likely easy passage on the Senate floor.

“We’re not even going to fight it on the floor,” said David Thompson, executive director of the Kentucky Press Association, which opposes the bill. KPA and other opponents are already preparing to oppose the bill in the state House, where they believe they have a better chance of blocking it, he said.

The House is controlled by Democrats and the Senate by Republicans. All six Republicans on the Senate committee voted for the bill, with two Democrats abstaining. Two other Democrats were absent. "We may have lost this battle but we are still confident that we can win the war," said Gary White, executive director of the Kentucky Broadcasters Association, "Once the legislation moves to the House it should lose its steam."

Republican Sen. John Schickel of Northern Kentucky, the bill's sponsor, told his colleagues that he believes broadcast stations often use 911 tapes to sensationalize coverage of tragic events. His bill would prevent release of the actual tapes, but allow transcripts. "Too often, we hear victims of violent crime and other tragic circumstances being aired on our national and local media, further adding to their victimization," Schickel told the committee.

Opponents such as the KPA and KBA argued the bill would infringes on constitutional protection of a free press. Nancy Cox, an anchor for Lexington's WLEX-TV, told the panel, "A free press is not always convenient. A free press is not always comfortable. But it is always necessary in a democracy. I understand the good intentions behind this bill. I don't argue with that at all. But I need you to know that we in the media have good intentions as well, by and large."

The revised bill would prohibit broadcasting of 911 recordings, but allow release of transcripts and allow reporters to listen to recordings to verify the accuracy of the transcripts. However, it would not allow the release of the recordings themselves without permission of both the person calling and the agency recording. "The bill allows emergency services to redact all identifying information (name, address, phone number) so unless you can recognize the voice you will not know who to contact to request permission to broadcast the audio on your station and or website," White said in an e-mail.

State police and officials of the 911 call center in Lexington testified Thursday in the bill's favor. Attorney General Jack Conway recently ruled that the call center improperly withheld recordings of calls requested by local firefighters. "The proponents played up the 'sympathy' angle," White wrote. "However, they could not produce one single instance in which the broadcast of a 911 call, by a Kentucky station, was detrimental to the caller or other parties involved."

In Kentucky, 911 calls are public records, available to reporters and ordinary citizens alike. According to a partial survey by KPA, 911 calls are public records in Arkansas, Georgia, Iowa, Michigan, Montana, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Texas and Virginia. They are not public records in Mississippi, Missouri, New York and South Dakota. Transcripts only are available to the public in Arizona. The calls are not public until after an investigation is complete in Alabama, Indiana, Kansas, Maryland, Oregon, Tennessee and Washington.

For a full text of the bill, see Links of Interest below.

Urgent call to action on 911 bill

The Kentucky Broadcasters Association issued an "urgent call to action" Wednesday on a bill in the state legislature to make recordings of 911 calls secret. The bill was scheduled to be discussed and voted on in committee Thursday. Here is the text of the call:

The Kentucky Legislature is considering a Senate Bill that would prohibit Radio and TV stations in Kentucky from airing recorded 9-1-1 calls. Tomorrow (Thursday, Feb. 5) morning at 10 a.m. the Senate Judiciary Committee will discuss and vote on the proposed bill. The KBA board of directors is on record opposing this proposed action. Your help is needed to fight Senate Bill 30. The first step broadcasters should take is contacting the committee members listed below. If any of these Senators represent your district please contact their office immediately and tell them "You oppose SB-30". Even if you are not represented by these Senators please call each one and voice your opposition. Also, contact your state Senator and Representative and encourage them to oppose this Bill. To contact legislators call (502) 564-8100. Ask for the Senator and Representative you wish to speak to. You will most likely be asked to leave a message. Give your name, city and call letters and the message that you are opposed to SB-30."

Senate Judiciary Committee Members: Robert Stivers (R, chair), Katie Stine (R, vice chair), Perry B. Clark (D), Carroll Gibson (R), Ray S. Jones (D), Gerald A. Neal (D), Jerry P. Rhoads (D), John Schickel (R), Dan Seum (R), Jack Westwood (R).