State proposals would limit access to 911 calls

From the Spring 2010 issue of The News Media & The Law, page 14.

This year has been marked by a slew of proposed open-record laws aiming to ban audio recordings of emergency 911 calls from being distributed to the public.

At least six states — Alabama, Alaska, Florida, Kentucky, Ohio, and Wisconsin — have introduced bills since January that would prohibit the dissemination of emergency 911 calls via television broadcasts, radio and the Internet.

In some states, the media can listen to the recordings but not air them; in others only the transcript of such recordings will be available. Open-government advocates believe the bills are a worrying shift away from transparency that could diminish the media’s ability to monitor government agencies.

“By examining 911 calls we can see how the public agencies are doing. If you close those records the public certainly loses the ability to monitor government agencies,” said David Hudson from the First Amendment Center in Nashville.

Alabama and Ohio were two early adopters that provided templates for similar laws in other states.

Alabama has the distinction of answering the first 911 call in the country, and it was the first state this year to restrict access to emergency call recordings. Gov. Bob Riley signed legislation into law April 27 that exempts 911 recordings from being released without a court order.

“You can’t privatize a song or take a song without paying for it,” said Association of County Commissions of Alabama Executive Director Sonny Brasfield, who helped author the state’s bill. “So you shouldn’t be able to get a recording of someone’s voice and utilize it for whatever you like.”

Though the Alabama law bans the release of 911 audio without a court order, it explicitly makes “any written or electronic record detailing the circumstances, response, or other events related to a 911 call” a public record. Transcripts, for example, will be available.

Brasfield says public records advocates should view the law as progress since it codifies that transcripts are public records. Previously, he says Alabama’s districts approached the issue inconsistently, with some releasing transcripts and some not. “There has not been enough media coverage about all the information this legislation explicitly makes public record that previously weren’t released in practice,” he said.

But media advocates disagree. Sharon Tinsley, president of the Alabama Broadcasters Association, says that the attorney general said in 2001 that 911 calls were public record. “Basically he pointed to the fact that there were already policies in place to legally withhold audio if necessary,” Tinsley said.

Broadcasters like Raycom Media, which owns or operates 46 television stations across the country, were likewise unconvinced by Brasfield’s rationale. The company asked other media organizations to write letters to politicians urging them to vote against the legislation because the bill would “take away voice inflection” that can help illustrate a story, said Raycom attorney Ellenann Yelverton.

The law’s proponents say it wasn’t prompted by any specific media report or incident and that it is grounded in a more general concern that broadcasting emergency calls could deter future calls from reaching out during emergencies — a common reason cited by those promoting similar legislation in other states that broadcasters say is unfounded.

“[Privacy] has been their stance all along, but frankly one of the concessions on their side has been to allow transcripts to be released,” Tinsley said. “That transcript would have all of the caller’s information like phone number and address … I don’t think this is really about privacy.”

Brasfield conceded that he doesn’t know of any specific study assessing whether callers would be deterred from placing emergency calls should broadcasting them remain an option. “I would have to find someone to say they didn’t call 911 for fear of the audio being released, it’s almost silly to ask me to do that,” Brasfield said.

A proposed bill in Ohio has stalled in committee pending the results of just such a study.

State Sen. Tom Patton introduced the legislation, which is the second time the Ohio Legislature has considered such a bill. It would prohibit the broadcast of emergency calls — reporters would still be allowed to review the recordings — and levy $10,000 fines against media outlets that did. He says it’s an “arbitrary” figure intended to promote compliance because “if [media] broadcast a 911 call we don’t want to put someone in jail” but do want to encourage compliance in the future.

Patton says his proposal was prompted by reports from family members in the law enforcement community who said they would often not receive 911 calls from certain neighborhoods with high rates of gang violence even when a serious emergency had occurred.

“The gangs in Ohio practice three things,” Patton said. “I call them the ‘Three Rs’ — revenge, retaliation, retribution.”

Media organizations, however, say they are sensitive to the effect broadcasting such information can have.

“Our stations that decide to air a 911 recording don’t do so lightly,” said Christine Merritt, executive vice president of the Ohio Association of Broadcasters. “They consider not only journalism ethics, but they also consider ‘what impact will this have on the audience?’ Transcripts or having a reporter read the transcript on air do not tell a story. If you emphasize a different word and it completely changes the content you miss the nuance and the experience.”

Patton cited several times when crimes occurred on busy streets but sometimes up to 25 minutes would pass before someone called the police. He believes the lull can be attributed to gangs’ threats of retaliation, but concedes there could be other contributing factors.

“Some reporters have said that the lack of 911 calls may actually indicate that the African-American community doesn’t trust the police departments, which may be a valid point,” Patton said.

After complaints from the media, Patton approached a professor at Cleveland State University who was able to estimate that a study examining the reasons why individuals choose not to place an emergency call would cost between $30,000 and $40,000 — money that the state doesn’t have. Patton has promised local reporters that he will put the bill aside until the state is able to conduct the expensive study.

Other states with pending bills have been receptive to the media’s concerns. In Kentucky, the second effort to restrict the broadcast of emergency recording has been stuck in committee since January after representatives conferred with media organizations. Florida House Speaker Larry Cretul said he would “take a breather” on the most restrictive of the proposed bills after he got input from the media.

2010 Bills to ban 911 audio from media review or release