Pro Publica reports that the number of states prohibiting release of 911 calls is on the rise.

In 2019, four states — Massachusetts, New York, Tennessee, and Texas — have considered bills restricting access to 911 calls. If the bills are enacted into law, these states will join twelve other states that currently prohibit access.

Opponents of these laws explain that 911 calls involving accidents, medical emergencies, mass shootings, and natural disasters "have provided insight into the workings of public safety systems and, in some cases, revealed critical failings." The calls represent "the primary sources of information for the public to learn what happened and what government officials did in response, allowing the public to evaluate" whether the 911 system is properly functioning.

Supporters point to the privacy interests of the callers, invoking phrases like "tabloid journalism." They argue that those interests are superior to the public interest and that there is no "greater affront to dignity than permitting others to listen to the anguish that is embodied in such communication."

Access to 911 calls has been a recurring issue in open records disputes presented to the Kentucky attorney general's open records staff. In general, public agencies resisting disclosure argue that the calls are protected from disclosure by the privacy exception (KRS 61.878(1)(a)), the ongoing law enforcement exception (KRS 61.878(1)(h)), and the preliminary documents exception relating to "correspondence with a private individual." KRS 61.878(1)(i)).

The novel interpretation of the latter exception is found in a 2000 Court of Appeals opinion, Bowling v Brandenburg, in which the court upheld the denial of a request for a 911 call made by the individual who was the subject of the call after he threatened to kill his wife and other family members. The 911 caller was his nephew.

The court focused on the factual context in which the case arose — domestic violence — and the likelihood of voice identification.

It's a fact driven analysis — as it should be — and limited to the facts "in this case."

https://caselaw.findlaw.com/ky-court-of-appeals/1172668.html

Many law enforcement agencies and emergency dispatch centers construed Bowling as a license to withhold all 911 calls.

It was not.

Nine years after Bowling, the Court of Appeals ruled that a county 911 center improperly withheld a 911 call relating to a murder/suicide. In Marshall County v Paxton Media Group, the Court distinguished Bowling, reasoning that "the caller's privacy interest and possible desire to avoid embarrassment did not lessen the public's right to know the contents of the 911 tape recording, and the release of the record of the call was not prohibited"

The court found "no merit" in the county's "cursory claim that the record of the oral 911 call falls within the scope of the KRS 61.878(1)(i) exemption applicable to 'preliminary drafts, noted, correspondence with private individuals."

https://cases.justia.com/kentucky/court-of-appeals/2009-01-23-2008-CA-0…

In 2009 and 2010, Senator John Schickel sponsored a bill aimed at prohibiting access to 911 calls, except upon court order, but providing for the release of transcripts of the calls. Schickel asserted that the law would prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final, pleas of victims.

http://kentuckyopengovernmentblog.blogspot.com/2009/12/

https://www.wuky.org/post/pre-filed-bills-represent-mixed-bag-next-sess…

The bills failed in 2009 and 2010 due, at least in part, to the overwhelming opposition of the Kentucky Press Association and the Kentucky Broadcasters Association.

There appear to have been no subsequent attempts to limit access to 911 calls legislatively.

Again, any attempt to do so would amount to nothing more than a solution looking for a problem.

https://www.poynter.org/reporting-editing/2009/when-legislators-interfe…

As noted, access to 911 calls is a recurring issue in appeals to the attorney general. The open records staff has made an earnest effort to weigh the competing public and private interests in disclosure of each call.

In those cases that reflect a system failure, such as the 911 calls placed just after an incident at a remotely located church in Jefferson County in which a two year old child was accidentally struck by his four year old sister's t-ball bat, the staff approved partial redaction. Those portions of the multiple calls that captured efforts to resuscitate the grievously injured child were properly withheld, the staff concluded, but those portions of the 911 calls that captured the inability of the 911 operators to locate the church and dispatch responders had to be disclosed.

https://ag.ky.gov/orom/20081/08ORD188.doc

In another case, the staff approved the nondisclosure of a victim's call, in its entirety, that was placed immediately after she witnessed her husband's murder and was abducted by the murderer who attempted to rape her, and, having failed, committed suicide in her presence. Local law enforcement authorities released virtually all of their investigative files, satisfying the public's right to know. The staff found no public interest superior to the victim's privacy interest.

https://ag.ky.gov/orom/20001/00ORD162.doc

Conversely, in cases where 911 operators have engaged in gross neglect of their duties, the staff has found that refusal to disclose the recordings constituted violations of the open records law.

https://ag.ky.gov/orom/20021/02ORD092.doc

Of course, the vast majority of cases fall somewhere between these extremes. The proper interpretation and application of existing exceptions to the open records law, and the tests that have been established by the court for interpreting and applying these exceptions, yield the correct result.

We should therefore resist efforts to join the growing number of states that prohibit access to 911 calls and trust in a time tested analysis of the law that adequately protects privacy interests while ensuring the public's right to know.