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State Legislatures Threaten to Exempt 911 Calls from Public Record Laws

Kathleen A. Kirby and Scott Woodworth
March 19, 2010 | RTDNA Communicator

Last week, RTDNA sent a letter to the Governmental Affairs Policy Committee of Florida's House of Representatives urging lawmakers to table a bill that would exempt tapes of 911 calls from the state's aptly named Government in the Sunshine laws.  While the bill made it out of committee, in one of the bright spots of Sunshine Week (which, by the way, has its origins in Florida), Florida's Speaker of the House decided to suspend efforts to push the privacy bill through the state legislature, because of pressure brought to bear not only by media organizations, but also by members of the public who see the inherent value in the release of such tapes.

Florida's attempt to outlaw the timely release of 911 calls should not be dismissed as an isolated response to a unique incident (although opponents termed the bill the "Tiger Woods Relief Act.")  The Sunshine State was the fourth in recent months where legislation has been introduced to exempt 911 calls from public records laws.  Similar bills are pending in Alabama, Ohio and Wisconsin.  Missouri, Pennsylvania, Wyoming and Rhode Island already have laws on the books.  Proponents of such bills suggest that 911 audio should be kept private for any number of reasons-from making sure callers are not deterred from seeking assistance because their conversations may be made public to preventing the sensationalism that may surround real-life emergencies.

The Alabama House of Representatives passed its bill on February 2, 2009.  The legislation would prohibit the release of 911 tapes without a court order "finding that the  right of the public to the release of the recording outweighs the privacy interests of the individual who made the 911 call or any persons involved in the facts or circumstances relating to the 911 call."  Representative Cam Ward said that "[t]he biggest reason for the bill was because several people had mentioned that their 911 call-ins had been used by criminals, who were involved in a crime that was being reported, to harass the person who made the 911 calls."  The bill does permit the release of 911 transcripts.  The bill has not yet been considered by the Alabama Senate.

Similar legislation remains pending in Wisconsin, where it has been approved by a committee of the state assembly.  That bill was introduced in response to the murder of a University of Wisconsin student whose call supposedly was botched by a 911 dispatcher.  In regard to 911 recordings, the bill would "withhold access under a 'balancing test' that weighs the public interest in withholding access against the strong public interest in providing access."

In Ohio, a Senate Bill specifies that while 911 calls will remain open records, it will be illegal to broadcast them publicly.  Under the new law, if passed, transcripts of 911 calls could still be read or depicted graphically. Violation of the broadcast ban would result in a $10,000 fine.  The bill has not been yet passed by the Ohio Senate.

These attempts to privatize 911 calls are troubling.  Certainly, it is easy to summon sympathy for victims or others who may have to re-live what may be one of the most traumatic or emotional incidents of their lives when they hear their own call for help replayed.  For that reason, news organizations generally make decisions on a case-by-case basis about whether to air a recording, carefully considering questions of taste, privacy, sensitivity and newsworthiness.  But the fact is, there is no expectation of privacy when a person makes a 911 call.  Instead, there is an expectation that the information provided will be recorded and disclosed to the public.

There are, of course, sound reasons for that.  Our citizens have a very keen interest in ensuring that the emergency response system upon which they rely, often in times of the most dire need, is functioning properly.  Our nation's 911 systems are funded by taxpayers, operated by government employees, and intended to facilitate public safety.  If citizens are shielded from information that helps them to evaluate how such calls are handled, they are disserved.  Across the country, the majority of states (Missouri, Pennsylvania, Wyoming and Rhode Island being the exceptions) have recognized the benefits to be gained where the public's right to know includes an ability to monitor the performance of its emergency service and police departments and to hold dispatchers and law enforcement officials accountable.  Transcripts of 911 calls released two months after the fact, as Florida's legislature had suggested, will not replace timely access to actual tapes in making such determinations.     

As Sunshine Week draws to a close, we should take a lesson from the Florida Association of Broadcasters and others who marshalled their forces in that state to preserve the public's ability to get a complete picture of how their government is operating.  Speak out in Alabama, Wisconsin, and Ohio so that none of these states becomes the fifth to  remove 911 tapes from open records laws, and remain vigilant there and elsewhere in protecting the public's right to know.

For more information, please contact Kathleen A. Kirby at 202.719.3360 or kkirby@wileyrein.com.



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