Q: A county supervisor called 911 to report what he described as an assault with several punches thrown at him. The local police department investigated and determined witnesses saw no punches thrown. After some delay, the city attorney has released the police investigative documents. Thus far, they have refused to release transcripts of the phone call(s) to report it. The city attorney is claiming that releasing the transcripts may have a chilling effect on other citizens calling the police. Is there an AG opinion or case law we can guide him to that will explain his error and compel release of the transcripts?
A: We are not aware of a case that specifically says that tapes of 911 calls or similar calls to law enforcement must be released, but there are two cases that touch on the subject
In the first case, the Court of Appeal ordered the City of Fontana to pay attorneys fees under the Public Records Act to an individual to whom the superior court ordered the City to release two tapes of telephone calls between the City’s police department and another law enforcement agency because the City considered portions of the tapes “embarrassing and irrelevant.” Fontana Police Dep’t v. Villegas-Banuelos, 74 Cal. App. 4th 1249, 1251 (1999). Among other things, the Court of Appeal said that the “Appellant was legally entitled to the unedited tapes which Fontana refused to produce until ordered to do so by the trial court.” Id. at 1252.
In the second, decided two years after Fontana, the California Supreme Court held that the PRA did not require the release of certain “records … concern[ing] a citizen’s call to report a possible crime and the depatment’s response thereto.” Haynie v. Superior Court, 26 Cal. 4th 1061, 1064 (2001). The Supreme Court held that the exemption in Government Code section 6254(f) for “records of investigations,” like the exemption in the same section for “records of complaints” to law enforcement, allows law enforcement to withhold the records completely (although they may have to release certain specific information that is in the records, but not the records themselves. Id.; see Willaims v. Superior Court, 5 Cal. 4th 337 (1993).
The agency here could claim that tapes of 911 or similar calls are “records of complaints” or, conceivably “records of investigations” and thus exempt under Haynie. In fact, the California Attorney General has held that “mug shots” are investigative records exempt from the mandatory disclosure requirements of the PRA under Government Code section 6254(f), and thus law enforcement can decide whether to release them or not. 86 Ops. Cal. Atty Gen. 132. It is not inconceivable that the AG or a court might take the same view of 911 tapes like the type you describe.