Tull v. Brown, s. 970002
| Docket Nº | Nos. 970002 |
| Citation | 494 S.E.2d 855, 255 Va. 177 |
| Case Date | January 09, 1998 |
| Court | Supreme Court of Virginia |
Page 855
v.
Harold D. BROWN, Sheriff of Surry County.
David STRICKLAND, et al.
v.
Harold D. BROWN, Sheriff of Surry County.
[255 Va. 179] 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.
Page 856
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.
[255 Va. 180] 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[255 Va. 181] 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.
Page 857
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...
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