A Guide for Handling FOIA
Requests for Records of 911 Calls
under the Virginia Freedom
of Information Act
Prepared by the Virginia Freedom
of Information Advisory Council
Policy Statement of the Virginia Freedom of Information Act
(FOIA)
By enacting this chapter, the General
Assembly ensures the people of the Commonwealth ready access to public records
in the custody of a public body or its officers and employees and free entry to
meetings of public bodies wherein the business of the people is being
conducted. The affairs of government are not intended to be conducted in an
atmosphere of secrecy since at all times the public is to be the beneficiary of
any action taken at any level of government.
Unless a public body or its officers and
employees specifically elect to exercise an exemption provided by this chapter
or any other statute, every meeting shall be open to the public and all public
records shall be available for inspection and copying upon request. All public
records and meetings shall be presumed open, unless an exemption is properly
invoked.[1]
Introduction
What do you do when someone requests a copy of a
911 call record?
FOIA
states that "[r]ecords of any call for service or other communication to
an emergency 911 system or communicated with any other equivalent reporting
system shall be subject to the provisions of this chapter." Va. Code §
2.2-3706 (E). Essentially, this means that 911 call records are subject to FOIA,
but exemptions or prohibitions may apply to the release of some or all of the
information in those records.
First,
remember that the default rule under FOIA is that all public records must be
disclosed upon request unless an exemption in law applies that allows the
record to be withheld. There is no blanket exemption for 911 call records. Just
as with other records, you have to look at the contents and the context to
determine whether the record, or any part of it, is exempt. In order to help
you make those determinations, some of the questions you will want to answer
before responding to a request for 911 call records are outlined in this guide.
Analysis
What is the nature of the call — criminal or
noncriminal?
Criminal
records and noncriminal records are treated differently, so this is the first
determination you make. Each type is addressed separately in this guide.
Criminal Call Records
If the call is criminal in nature, there are many different
exemptions that may apply. A full list of all the possible exemptions is beyond
the scope of this guide, but here are some of the ones most likely to apply to
911 call records:
·
Criminal
investigative files are defined as “complaints, court orders, memoranda, notes,
diagrams, maps, photographs, correspondence, reports, witness statements, and
evidence, relating to a criminal investigation or prosecution.” These files may
be withheld generally, but if the matter is not ongoing, then these records
must be released to certain parties with certain limited exceptions. Va. Code
§§ 2.2-3706 (B)(1) and 2.2-3706.1 (C) and (D).
·
The
identity of any victim, witness, or undercover officer may be withheld. Va.
Code § 2.2-3706 (B)(10) and § 2.2-3706.1 (G).
·
The
identity of any individual providing information about a crime or criminal
activity under a promise of anonymity (i.e., confidential informants) shall not
be disclosed. Va. Code § 2.2-3706 (C).
Noncriminal Call Records
If the records are not about criminal matters, the general rule is
that the call record is open, but you may withhold those portions of the record
that contain personal, medical, or financial information to protect any
person’s safety or privacy. Noncriminal incidents records include compilations
of noncriminal occurrences of general interest to law-enforcement agencies,
such as missing persons, lost and found property, and accidental deaths. Va.
Code § 2.2-3706 (D).
Other Records
Generally, it is our understanding that there usually are various
other records associated with a 911 call record, such as records that identify
which dispatcher took the call and the time the call was received (computer
aided dispatch or "CAD" information). Generally, these records are
not exempt and must be disclosed upon request. Based on experience speaking
with law-enforcement agencies and emergency call centers, it appears that these
records are often kept separately from the audio record or written transcript
of the 911 call itself, but sometimes they are kept together as a single
record. Under FOIA, if a record contains portions that are exempt and portions
that are not, you may only withhold the portions that are exempt. The nonexempt
portions must be released upon request.
Law Enforcment Records Analysis
The following series of questions generally apply to analyze any
request for law-enforcement records, whether it involves 911 calls or other
types of records.
1. Is the matter criminal or noncriminal?
2. If the matter is criminal, is it ongoing? Va. Code § 2.2-3706.1 (A)
provides the following definition: "Ongoing" refers to a case in
which the prosecution has not been finally adjudicated, the investigation
continues to gather evidence for a possible future criminal case, and such case
would be jeopardized by the premature release of evidence.
·
Ongoing:
If the matter is ongoing, the criminal investigative file may be withheld
pursuant to Va. Code §§ 2.2-3706 (B)(1) and 2.2-3706.1 (C).
·
Not
Ongoing: If the matter is not ongoing, the criminal investigative file still
may be withheld from the general public pursuant to Va. Code §§ 2.2-3706 (B)(1)
and 2.2-3706.1 (D), but § 2.2-3706.1 (D) requires criminal investigative files
to be released to certain parties (generally, victims or victims' relatives and
certain parties involved in post-conviction proceedings). However, even when
release is required, certain exemptions such as those to protect the identities
of victims, witnesses, undercover officers, or confidential informants may
still apply. Please see our guide "Law Enforcement Records and the Freedom
of Information Act" for details.
3. If the matter is noncriminal, does the record contain any personal,
medical, or financial information?
·
Yes: If
the record has personal, medical, or financial information, would releasing
that information jeopardize any person’s safety or privacy? If it would, then
you can redact out the personal, medical, or financial information before
releasing the record pursuant to Va. Code § 2.2-3706 (D), but still must
release the rest of the record. Otherwise, if no jeopardy to safety or privacy
would occur, then release the record without redacting it.
·
No:
Release the record if it does not contain any personal, medical, or financial
information.
**************************
Virginia Freedom of Information
Advisory Council
Alan
Gernhardt, Executive Director
Joseph
Underwood, Senior Attorney
Email:
foiacouncil@dls.virginia.gov
Telephone (804) 698-1810
Toll-Free 1-866-448-4100
foiacouncil.dls.virginia.gov
Updated January 2024