States move to exclude 911 recordings from public record

Noting a trend to keep 911 records from the public, Citizen Media Law Project blogger Justin Silverman argues that there is a compelling public interest in allowing access to the records in the interest of shining light on the performance of public safety officers . He says laws can guarantee access and still protect the identity of those deserving privacy. -db

Citizen Media Law Project
April 1, 2010
By Justin Silverman

When a grizzly bear mauled bicyclist Petra Davis two years ago in an Anchorage park, she called 911 from her cell phone, barely able to speak: “Please help … bear,” she struggled to say. “I can’t talk.” A fellow biker quickly came to her rescue, grabbing her cell phone and calling again for help: “I have a young girl here who was mauled by a bear and who is in pretty bad shape,” Peter Bassinger told the operator. “We need paramedics.”

Davis, then 15 years old, lay in a dark trail, bloodied, bitten and in the words of one witness, suffering “the most significant traumatic injuries that I’ve ever seen.” With the help of paramedics on the phone, Bassinger helped stabilize Davis until a rescue team arrived. The young biker survived and her story quickly made its rounds online and on television, including NBC’s Today Show, during which she was heralded a hero.

Both 911 calls (audio here and here) are compelling. Listening to Bassinger direct paramedics to his remote location while at the same time flagging down other bicyclists and tending to Davis’s wounds is sensational — but that, unfortunately, is why the Alaska state legislature doesn’t want the recording to be heard. A bill now being debated would make the broadcasting of 911 calls illegal, a measure to protect the privacy of victims and their families.

“The private, excruciating moments in the lives of individuals who call 911, they’re splashed all over the airwaves for the public to hear,” said Jennifer Senette, an aide to the bill’s author, Rep. Kurt Olson. “That’s not necessarily because there’s any significant public value — it’s kind of because it brings in the ratings.”

Alaska House Bill No. 415 allows the transcripts of such emergency calls to be disclosed, but prohibits the actual recordings from being broadcast on any medium. Those who do so are subject to a $10,000 fine. Several states exclude emergency recordings from public records altogether: Missouri,Pennsylvania, Rhode Island and Wyoming. Alabama, Ohio and Wisconsin are considering restrictions as well. These public record exemptions appear to be part of a larger, concerning trend, one that favorsindividual privacy rights over the public’s right to information. The bill being debated in Alaska is particularly problematic because rather than amending the state’s public records law, it simply fines those who broadcast legally obtained protected speech. That means, for example, an individual would be fined for posting his own 911 call on Facebook or sites similar to this one could no longer provide real emergency recordings to operators in training.

Still, privacy interests loom large and the desire to spare victims and their families from unnecessary grief following a tragedy is understandable. Consider the well-publicized case of Linda Casey. She dialed 911 after finding her daughter beaten to death in the driveway of their North Carolina home. Later that day, Casey heard the recording on the local news during which she repeatedly screamed “Oh, God.” She vomited upon hearing her voice. “This was not only the most painful thing I have ever been through, it should have been the most private,” Casey said.

Despite such sympathetic cases, 911 recordings are in the public interest and should continue to be disclosed. They provide an important check on public safety and law enforcement officers. They are also essential to the way a journalist tells a story. A transcript doesn’t reflect emotion — or in many cases, incompetence — the same way audio does. Only by listening to the recording can one fully understand the scope of Adrainne Ledesma’s 911 call from last year, for example. On paper, the operator’s insistence that the 17-year-old not swear on the phone could be confused with an intention to calm the teenager down. But when actually listening to him scold her for using the word “fuck” as her father suffered a seizure, it becomes clear that the operator was the one speaking inappropriately. Whether caused by maliciousness, apathy or poor training, 911 operators can fail to serve their communities. It is necessary for the public to know when they do and to what extent. Only with the recordings can there be a full understanding of these failures. Professional journalists have a code of ethics. How and when an emergency recording is used should be left to their discretion.

There will undoubtedly be those who abuse the right to these recordings or use them in unethical ways. This site, for example, features a 911 call made by an elderly woman who is murdered while on the phone. It’s chilling and it’s creepy and it’s definitely not what the site calls “entertainment.” Prurient interests will prevail sometimes, but that’s a necessary price to pay for information of public interest.

There are existing mechanisms that states can use to protect the privacy of individuals while minimizing any burden on the public’s right to the recordings. In making a case for not disclosing 911 calls, Daniel Solove of Concurring Opinions points to two cases that favor privacy interests and keep public record policies malleable. In Whalen v. Roe, 429 U.S. 589 (1977), the U.S. Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but all the “individual interest in avoiding disclosure of personal matters.” The 6th Circuit held in Kallstrom v. City of Columbus, 136 F.3d 1055 (1998), that a city couldn’t disclose the addresses, phone numbers, financial information, Social Security numbers and other personal information of police officers because it violated the officers’ constitutional right to information privacy. The fact that a state designates information as public record, Solove wrote, doesn’t immunize its constitutional obligations not to violate the privacy rights of its citizens.

These cases clearly support privacy interests and allow states to edit recordings and transcripts before disclosing them. Many states do this. Without identifying information, the privacy of nearly all 911 callers is protected. Unless the 911 call is made by a recognizable figure or involves unique circumstances, it’s not likely media outlets would seek on their own the identities of those involved. They’re not newsworthy. The ability to edit out personal information from the recordings seems to adequately protect most 911 callers while still allowing access. Some states also temporarily withhold any 911 call that is connected to a current investigation. Though the public interest in a crime and need for the recordings is greatest when the investigation is current, the audio is ultimately released. These are reasonable accommodations.

There’s nothing reasonable, however, about Alaska Bill No. 415. Recordings are kept out of the public’s reach altogether and there is essentially a “fee” when media outlets broadcast those recordings they do obtain. A bedrock First Amendment principle is that “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order,” and the Supreme Court has held in similar circumstances that imposing a publication ban on the media is “too precipitous a means of advancing” the state’s interest in protecting the privacy of victims. Florida Star v. B.J.F., 491 U.S. 524, 534-37 (1989). Alaska is considering a bill with an incredibly broad scope. That’s a heavy burden on speech for a law that isn’t likely to protect privacy interests anyway. With transcripts still being released, the information that may violate a person’s sense of privacy is still made public.

It seems the only things to be removed from the public by Bill No. 415 is the broadcasting of a 911 caller’s voice and, of course, journalistic discretion. Because transcripts will still be released, whose privacy is really being protected? Not that of Petra Davis. Although Alaskan legislators pointed to her case to justify the bill, the teenager voluntarily gave up her privacy when she made the television appearance. With victims like Davis on the public stage, the government shouldn’t be deciding how to tell their stories.

Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School.

Copyright 2010 Citizen Media Law Project