Tull v. Brown, s. 970002

• Decision Date: 09 January 1998
• Docket Number: Nos. 970002,970003,s. 970002
• Citation: 494 S.E.2d 855,255 Va. 177
• Parties: Judi TULL, et al. v. Harold D. BROWN, Sheriff of Surry County. David STRICKLAND, et al. v. Harold D. BROWN, Sheriff of Surry County. Record
• Court: Virginia Supreme Court

Page 855

494 S.E.2d 855

255 Va. 177

Judi TULL, et al. v. Harold D. BROWN, Sheriff of Surry County.

David STRICKLAND, et al. v. Harold D. BROWN, Sheriff of Surry County.

Record Nos. 970002, 970003.

Supreme Court of Virginia.

Jan. 9, 1998.

Stephen E. Noona (Cynthia E. Cordle; Kaufman & Canoles, on briefs), Norfolk, for appellants in Case No. 970002.

John B. Russell, Jr. (Shuford, Rubin & Gibney, on brief), Richmond, for appellee in Case No. 970002.

Randy D. Singer (Rebecca L. Deloria; Willcox & Savage on briefs) for appellants in Case No. 970003.

John B. Russell, Jr. (Shuford, Rubin & Gibney, on brief), for appellee in Case No. 970003.

Present: All the Justices.

KINSER, Justice:

In this appeal, several news media organizations and their representatives (the Media) challenge the circuit court's denial of their requests under The Virginia Freedom of Information Act (FOIA), Code §§ 2.1-340 et seq., for access to audio tape recordings and related materials (911 Tape) concerning an emergency call to the Surry County 911 Emergency Response System (911 System). ¹ The Surry County Sheriff's Office (SCSO), under the direction of Sheriff Harold D. Brown (Sheriff Brown), operates the system and has custody of the requested information. Because we find that the 911 Tape is an official record that is exempt from disclosure, we will affirm the judgment of the circuit court.

I.

Surry County established the 911 System in October 1995 and funds its operation with public monies. The SCSO serves as the dispatcher for all 911 calls. When such a call comes into the dispatcher's office, which is located in a portion of the SCSO not accessible to the public, the dispatcher advises the appropriate provider of emergency services of the call for assistance and/or dispatches SCSO deputies to the crisis scene.

The SCSO also uses its recording ensemble in conjunction with the 911 System. The recording ensemble consists of two tape decks located in a locked cabinet in the dispatcher's office. Each deck holds a twelve-inch tape reel capable of recording ten channels simultaneously. One tape is used for each 24-hour period, after which the system automatically switches to the other deck. The recorded tape is removed, placed in a locked storage cabinet, and reused after 30 days unless a police officer needs information on it. ² Only Sheriff Brown, his secretary, and the chief dispatcher have the code that allows access to these tapes. The system records not only 911 calls, but also all radio traffic over the SCSO radio network and the State Interdepartmental Radio System, and all incoming and outgoing calls over four SCSO telephone lines. SCSO personnel use these lines for official business including criminal investigations. Finally, the system records all conversations between individuals physically in the dispatcher's office.

On November 21, 1995, the SCSO dispatcher received a 911 call from the home of Wayne and Lisa Rickman concerning a child who had stopped breathing. During the next 20 minutes, there were exchanges between the dispatcher and the 911 caller, and between the dispatcher and various law enforcement and rescue personnel. The child subsequently died at a local hospital, and the SCSO treated the incident as a criminal investigation until an autopsy ruled out any criminal activity as the cause of death.

Beginning on November 27, 1995, because of alleged public concern about the efficiency of the 911 System in responding to this call, Sheriff Brown received several requests from the Media for the 911 Tape made during this incident. Judi Tull, a reporter with The Daily Press, Inc., made the first request, which encompasses all the information sought by the Media under FOIA:

I want to listen to the tape recording made at the county dispatch office, containing conversations involving and related to the call from the home of Wayne and Lisa Rickman to the Surry County 911 system on Tuesday, Nov. 21, 1995. This request includes the call made from the Rickman house to the dispatcher, and any subsequent conversations or calls made by anyone at the dispatch office or other government office in relation to this call. In addition, I am also asking for any written documents or any information stored electronically or magnetically, related to this dispatch call and actions by the dispatcher, including any information stored in a computer or on disc.

In response to the Media's requests, Sheriff Brown denied access to the actual tape. He first claimed that the SCSO is not a public body within the meaning of FOIA but has since stipulated that he is a public official. Sheriff Brown then asserted, as a basis for his denial, that the 911 Tape is not an official record as defined in FOIA. Alternatively, he maintained that, if the 911 Tape is an official record, it is exempt from disclosure under Code § 15.1-135.1(B)(5).

Sheriff Brown did, however, provide the Media with a transcript of the recorded conversations relating to this incident. ³ Because of the repeated requests for access to the actual tape even after he had provided the transcript, Sheriff Brown petitioned the circuit court to declare that the 911 Tape is "not available to the public under the Freedom of Information Act." The Media then filed several petitions for mandamus and injunctive relief. After considering all the evidence presented at a hearing, the circuit court, in an order dated October 2, 1996, granted declaratory judgment for Sheriff Brown after making the following specific findings:

l. The 911 Tapes are not official records subject to FOIA disclosure because the 911 Tapes are not prepared, owned or possessed by the Sheriff in the transaction of public business, as neither the originator nor the recipient of the emergency call would reasonably believe or realize they were transacting public business.

2. The Court further finds that even if the 911 Tapes are official records, they are exempt from FOIA as noncriminal incident reports required to be kept by the Sheriff pursuant to § 15.1-135.1 of the Code of Virginia in the efficient operation of a law enforcement agency; and

3. Finally, the court finds that, if not exempt from FOIA by definition or statutory exemption, mandatory disclosure of the 911 Tapes would not be required because the General Assembly intended to exclude from mandatory disclosure information which, if required to be released, would unconstitutionally interfere with the Sheriff's ability to execute the duties of his office; therefore, such information falls outside the coverage of FOIA by the ruling of the Virginia Supreme Court in Taylor v. Worrell Enterprises, 242 Va. 219 (1991).

The Media appeal.

II.

The policy underlying FOIA and its rules of construction are set forth in Code § 2.1-340.1:

By enacting this chapter the General Assembly ensures the people of this Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted....

This chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exception or exemption from applicability shall be narrowly construed in order that no thing which should be public may be hidden from any person.

See also City of Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 429, 431 (1982). In applying the statute, we have stated that "[t]he Act is simple and direct in its requirements. If the requested document is an 'official record,' ... then it 'shall be open to inspection and copying' except 'as otherwise specifically provided by law'...." Associated Tax Service v. Fitzpatrick, 236 Va. 181, 187, 372 S.E.2d 625, 629 (1988) (quoting Code §§ 2.1-341 and 2.1-342(A)). Accordingly, we must decide whether the 911 Tape is an official record, and if it is, we must then determine whether it is exempt from disclosure.

On the first question, the circuit court ruled that the 911 Tape is not an official record ⁴ because "neither the originator nor the recipient of the emergency call would reasonably believe or realize they were transacting public business." Sheriff Brown expounds on this ruling by arguing that a 911 caller has an expectation that his/her voice and the content of the message will not be available to the public. He also contends that a 911 call affects only an individual and not the community at large.

Sheriff Brown's position is, however, untenable. Even if a 911 caller assumes that the call will remain private, ⁵ the caller's expectation of privacy or claim of confidentiality does not prevent a recording of the call from being prepared "in the transaction of public business." Moreover, Surry County created the 911 System with public funds to provide for public safety. The "transaction of public business" includes public safety. See Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 833 (1980)("[Police power] includes the power to prescribe regulations to promote the health, peace, morals, education and good order of the people."). Indeed, every citizen in Surry County relies on the 911 System, and to say that the operation of the system by the SCSO and Sheriff Brown is not "in the transaction of public business" is simply inaccurate. Furthermore, Sheriff Brown is a...