Confidentiality: Restricting Public Access to 9-1-1Voice Recordings and Data Base Information

Confidentiality: Restricting Public Access to 9-1-1Voice Recordings and Data Base Information

by Colonel Ernest E. Ricci

The 1996 session of the Rhode Island General Assembly produced two billswhich, if they become law, will directly bear upon public access to 9-1-1voice recordings and data base information.

The Senate bill sponsored by Senator Bradford Gorham (R-Foster) passedboth chambers of the assembly overwhelmingly. The bill is expected to receivethe Governor’s approval. The Gorham bill, which has been strongly criticizedby the press and labeled “secrecy legislation,” will restrict9-1-1 voice tape recordings to use primarily by public safety agenciesto ensure the accurate dispatching of the emergency services.

Public access to 9-1-1 tapes will be afforded only by written consentof the person whose voice is the subject of the recording, or by orderof a court. Public safety officials who may require copies of 9-1-1 voicetapes for investigative or training purposes will be able to obtain copiesthrough an administrative subpoena process and they must insure the confidentialityof the tape’s contents. The bill is clearly not intended to ban media orpublic access but rather it will control access so as to confine the usesof 9-1-1 tapes to the purpose for which they were created: a public safetytool to better serve the emergency needs of the caller. In addition, thebill would allow the 9-1-1 caller to weigh the expectation of privacy tobe associated with the call content.

The decision to release the voice recordings or waive confidentialityrests with the person whose voice is on the 9-1-1 tape. Should the callerchoose to make the 9-1-1 call content public, the caller may do so. But,if on the other hand, the caller does not wish to expose his/her 9-1-1transaction to the public, the caller would withhold authorization to releasethe tape. The privacy expectation of the caller is held paramount to thepublic’s “need to know” unless the confidentiality of the tapeis challenged in court and a subsequent order to release is issued.

The second bill, which was introduced in the Rhode Island House of Representativesby 9-1-1 Authority Chairman Representative Peter Kilmartin (D-Pawtucket)and which also received overwhelming support, would protect 9-1-1 database information. Presently Rhode Island Enhanced 9-1-1 enabling legislationdefines what constitutes data base information and holds specific database information as confidential. That data base information which attachesto unpublished telephone subscribers, namely the names, addresses and telephonenumbers of that class of subscriber, is confidential. This bill focusesprimarily upon computer-generated printouts of 9-1-1 data base information.The Kilmartin bill would embrace all telephone subscriber information,whether published or unpublished, and control release of that information.

The sponsors of both bills and their supporters offer that the billsare no more than a necessary means in an effort to balance the public’sright to know and the individual’s quite proper right to privacy. Theycite concerns that crimes may not be reported by both witnesses and victimsif they know that their voice-taped report could be played on the six o’clocknews. Aside from the criminal activity aspect of their concerns, they pointout that many emergency medical requests processed by 9-1-1 are privateand personal and should not be readily available to anyone who may wishto know why the ambulance rushed Mrs. Jones to the hospital. Of course,if Mrs. Jones was the victim of a crime, law-enforcement agencies wouldrelease appropriate details to the press at appropriate times.

The representatives of the media have an entirely different view ofthe legislative intent of the bills and one wonders whether they may bereporting on two altogether different bills. They report that the billswill “place a barrier of secrecy” on the 9-1-1 system; they reportthat “opponents” feel that the bills will “. . . short changecitizens who have a right to expect full accountability of the 9-1-1 system.”

One would have to exceed the elastic limit to stretch a privacy rightsissue to one of public agency accountability. The private citizen whosevoice is recorded while reporting an emergency is the one who chooses torelease or not to release the tape, not the agency which produced the recording.A caller who is dissatisfied with any aspect of the emergency service providedwould certainly not want to withhold the tape which would support his/hercomplaint. The public will certainly know when any public safety agencyfalls short of its public expectations.

Nonetheless, the accountability issue was considered fair game, notonly because of its intended arousal of public indignation, but becausethe press had associated the stimulus for the 9-1-1 confidentiality legislationto an incident which occurred last year involving a public official. Ifindeed that incident was a factor, it was generated by the irresponsibleuse of that 9-1-1 tape by the media. This briefly was the substance ofthe call:

A woman called 9-1-1 to report an alleged domestic assault. The suspect,her husband, is a state public official. He had left the house and shewas alone with her young son while making her call. The call was emotional;domestic assault is a priority concern in Rhode Island; the accused isa public figure — all the ingredients for a great talk show topic andfront page newspaper article. And why not? Shouldn’t the public be madeaware of an alleged violation of a public law, a violation reported toa public agency?

Opponents of any restriction of access to 9-1-1 records would answeran unequivocal yes — the public has a right to know. Now, Rhode Island9-1-1 has certainly processed dozens of reported domestic assaults duringthe last year, just as emotion packed, more brutal, and at least as newsworthyfrom the standpoint of the public’s right to know. Those cases resultedin charges and convictions. The matter involving the public official didnot, as the police found no probable cause to bring charges. Why did dozensof 9-1-1 calls escape the scrutiny of the press? Why didn’t the publichave a right to know about those cases? Perhaps it was because the mediaused its discretion as determined by reader or viewer interest. The subscriberwill tune in to a TV channel or buy a copy of a newspaper containing astory centered around a public official accused of having committed a crime,but if the accused is an ordinary Joe, it’s not newsworthy.

So what “public right to know” is the press talking about?The public’s right to know of the prevalence of crime, or the public’sright to know when a public figure is accused of having committed one?

Apparently it is not the report of a crime in general that generatesthe public’s right to know, but rather the party or parties involved. Whensomeone calls 9-1-1 for emergency services, that person is facing, in manycases, a private and personal event in his/her life and does not expectthat the content of the call will exceed the confines of the emergencyservice agency(s) responding. That applies to private and public personsas well.

No one else in town needs to know why the ambulance took Mrs. Jonesto the hospital for an emergency appendectomy unless Mrs. Jones wishesto tell them. Even if Mrs. Jones is a public official, isn’t her medicalproblem personal and private unless she chooses to make it public? Granteda domestic assault complaint is not analogous to an emergency medical report– different levels of privacy or public right to know would attach. Butsome criminal complaints would require confidentiality.

Take, for example, someone who calls 9-1-1 to report a suspected childabuse incident by a neighbor. Should the identity of the caller be divulgedby 9-1-1 or by the investigating agency? How many potential witnesses wouldbe discouraged from coming forward with criminal information if the answeris in the affirmative.

No one, public official or private individual alike, who is any wayinvolved in this delicate issue intends to hamper the free press from usingits influence to direct public interest in government affairs. This issuein not about public agency or government accountability. The bills havenothing to do with blocking media access to 9-1-1 operations; the billshave nothing to do with protecting public officials who may betray publicconfidences and/or commit public crimes.

On the contrary, the bills are about protecting a strong social interestin having a person communicate what is on his/her mind without fear thathe/she will be subjected to embarrassment, humiliation, harassment, orany form of retribution, particularly when what is on that person’s mindis the need for emergency services irrespective of the caller’s positionin that community.

Most would agree that communications between citizens and the publicsafety agencies which serve them should be treated as privileged communications– not absolute privilege, but conditional, or qualified privilege.

Who should determine what factors qualify the privilege? The personwho could be adversely affected by the contents of the communication, andthe court — not the public safety agencies and not the news media. Shouldthe person have reason to believe that certain information is being withheldto conceal an injustice then the press may simply petition the court foran order to release the information. The question of who has the greatestneed to know or whose best interest release of the information will servewill be decided by an impartial judge after hearing arguments from theparties concerned.

That is exactly what the Rhode Island legislation will provide. Thepeople of Rhode Island should feel very comfortable with that process,particularly those who use public safety services through the 9-1-1 system.