VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-01-12

March 7, 2012

George S. Webb III, Esq.
Office of the Commonwealth's Attorney
Madison, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of January 19, 2012.

Dear Mr. Webb:

You have asked whether E911 records related to pending criminal cases must be released pursuant to records requests made under the Virginia Freedom of Information Act (FOIA). You indicated that the E911 Operations Center in the Sheriff's Office regularly receives such requests for records that relate to pending criminal cases. You expressed your opinion that such requests appear to attempt to circumvent the limitations on discovery allowed in criminal cases, and generate extra work for emergency response personnel that takes them away from their primary duties.

The general policy of FOIA expressed in § 2.2-3700 is that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked. The definition of public records set forth in § 2.2-3701 includes all writings and recordings ... regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. While a sheriff's office is not a public body for meetings purposes, constitutional officers are expressly included in the definition of public body in § 2.2-3701 for records purposes: For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records. Reading these provisions in the context of your inquiry, E911 records prepared, possessed, or owned by the Operations Center in the Sheriff's Office in the transaction of public business are public records subject to disclosure under FOIA, except to the extent any exemptions apply that allow the record to be withheld.

Regarding your contention that requests for 911 tapes are an attempt to circumvent criminal discovery, I note that the procedure for making and responding to a records request under FOIA is entirely separate from the Rules of Court governing discovery. In considering a civil subpoena duces tecum, this office has previously opined that FOIA governs access to records when requested by a citizen of the Commonwealth or a representative of the media as part of their right of access granted under FOIA. However, in the context of litigation, the Rules govern the procedures for production of records. A subpoena is a court order commanding that certain documents be produced. In the context of a subpoena, a public body would not follow the procedures set forth in FOIA. Even if the same records could also be accessed by a citizen or representative of the media pursuant to a FOIA request, the Rules must be followed once a subpoena has been issued.¹ While not directly on point, the Attorney General has opined that FOIA exemptions do not apply in the context of a subpoena duces tecum issued in a criminal or traffic case,² and the Supreme Court of Virginia has opined that the statutory mandamus remedy set forth in FOIA is separate from the common law writ of mandamus.³ Following these prior opinions and reasoning by analogy, it is clear that a citizen retains the right to make records requests under FOIA even when other mechanisms to obtain records may be available, and that any given request must be handled under the appropriate procedure.

Turning next to the treatment of 911 records under FOIA, the Supreme Court of Virginia addressed access to 911 records held by a sheriff's office in the case of Tull v. Brown.⁴ That case concerned a 911 call about a child who had stopped breathing and subsequently died at a local hospital. The incident was treated as a criminal investigation until an autopsy rule out any criminal activity as the cause of death.⁵ Stating that the "transaction of public business" includes public safety, the Court concluded that the 911 record at issue was an official record subject to FOIA.⁶ However, the Court further concluded the 911 tape was exempt from disclosure under then Code § 15.1-135.1 as a noncriminal incident record. That Code section defined noncriminal incidents records to include records of suicides and accidental deaths, and explicitly stated that the records required to be maintained by this section shall be exempt from the provisions of [FOIA]. The Court in Tull concluded that the 911 call at issue here involved the initially unexplained death of a child. Thus, we conclude that the 911 Tape falls squarely within the exemption set forth in Code § 15.1-135.1(B)(5).⁷ The Tull case can be distinguished from the inquiry you present on both the facts and the law. Factually, the matter at issue in Tull was a death where criminal activity was ruled out, whereas you present the issue of a 911 record concerning a pending criminal matter. Because your inquiry concerns criminal matters rather than a noncriminal incident, the holding of Tull is not dispositive of your inquiry. Regarding the law, former Code § 15.1-135 was recodified without substantive changes as § 15.2-1722 in 1997.⁸ Section 15.2-1722 was subsequently amended in 1999 with the removal of the previous records exemption from § 15.2-1722, and the corresponding addition of a new exemption within FOIA, codified as then subdivision G 1 of § 2.1-342.2:

G. Records kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this section except:
1. Those portions of noncriminal incident or other investigative reports or materials containing identifying information of a personal, medical or financial nature provided to a law-enforcement agency where the release of such information would jeopardize the safety or privacy of any person. ⁹

The current version of that exemption is subsection G of § 2.2-3706:

Records kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this chapter except that those portions of noncriminal incident or other investigative reports or materials that contain identifying information of a personal, medical or financial nature may be withheld where the release of such information would jeopardize the safety or privacy of any person.

Thus the 1999 legislative changes removed the broad exemption for noncriminal incident records that was the basis for the conclusion that the 911 records in Tull were exempt from disclosure in their entirety. Since the 1999 changes, the law has provided only that the custodian may redact from noncriminal incident records identifying information of a personal, medical or financial nature ... where the release of such information would jeopardize the safety or privacy of any person, rather than withholding the entire record. Reading the holding in Tull in light of these subsequent changes to the laws concerning noncriminal incident records, it is clear that a 911 record concerning a noncriminal incident may be redacted as provided under subsection G of § 2.2-3706. However, that conclusion is not dispositive of your inquiry about 911 record concerning pending criminal matters.

Research did not reveal any Virginia Supreme Court opinions addressing the treatment of 911 records under FOIA other than Tull, discussed above. Similarly, research did not reveal any published opinions on the matter from the circuit courts of Virginia or the Office of the Attorney General. This office is aware of a 2006 decision from the Circuit Court for the City of Bristol where the court ordered the release of a 911 tape related to a criminal investigation or prosecution. However, the only published opinion from that case concerns the award of attorney's fees, rather than addressing the underlying legal issues.¹⁰ It is my understanding that the court in that case relied on Tull for its decision; as discussed above, however, the Tull decision is not dispositive of your inquiry concerning pending criminal matters.

There being no specific exemption solely addressing 911 records in a criminal context, there can be no blanket rule that addresses all such records. Whether a 911 record must be released depends upon the context and contents of each such record, and must be determined on a case-by-case basis. It is my general understanding that most, if not all, 911 records either include or have associated with them additional information such as the time the call was placed, the time of the response, the dispatcher who took the call, and other administrative information. That type of information is not usually subject to any exemption and would have to be released. On the other hand, there are various exemptions within § 2.2-3706 that permit records in the criminal context to be withheld, including several items that might be found in a 911 record, such as the identities of victims, witnesses, undercover officers, and confidential informants, as well as witness statements as part of a criminal investigative file.¹¹ Therefore, in conclusion, 911 records are public records subject to FOIA that must be disclosed upon request except to the extent that an exemption, or exemptions, allows for portions to be withheld.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Freedom of Information Advisory Opinion 05 (2003).
²1991 Op. Atty. Gen. Va. 81.
³Cartwright v. Commonwealth Transportation Commissioner of Virginia, 270 Va. 58, 613 S.E.2d 449 (2005).
⁴255 Va. 177, 494 S.E.2d 855 (1998).
⁵Id., 255 Va. at 180, 394 S.E.2d at 856.
⁶Id., 255 Va. at 183, 494 S.E.2d at 858. Further note that FOIA at that time applied to official records, which term was later changed to public records.
⁷Id., 255 Va. 1t 184, 494 S.E.2d at 859.
⁸1997 Acts of Assembly, c. 587.
⁹1999 Acts of Assembly, cc. 703 and 726.
¹⁰Media General v. City of Bristol, 72 Va. Cir. 207 (City of Bristol 2006).
¹¹Criminal investigative files are defined in subsection A of § 2.2-3706 to mean any documents and information including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution, other than criminal incident information.