TULL, et al. v. BROWN

TULL, et al. v. BROWN


January 9, 1998
Record No. 970002




Record No. 970003





Robert G. O’Hara, Jr., Judge
Present: All the Justices

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.


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

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
, 242 Va. 219 [, 409 S.E.2d 136] (1991).

The Media appeal.


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.
, 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 public official, see Va.
Const. art. VII, ? 4,
and acts in that capacity when managing the 911 System. Thus, we
conclude that the 911 Tape is an official record under FOIA. See
State v. Cain, 613 A.2d 804, 809 (Conn. 1992); State v.
, 741 S.W.2d 35, 38 (Mo. App. 1987); Cincinnati
, 662 N.E.2d at 337.

Even though we find that the circuit court erred in holding
that the 911 Tape is not an official record, we agree that the
tape is exempt from disclosure under Code ? 15.1-135.1 as
"noncriminal incidents records." This section requires
a sheriff to maintain "adequate personnel, arrest,
investigative, reportable incidents, and noncriminal incidents
records necessary for the efficient operation of a
law-enforcement agency" and makes such records exempt from
disclosure under FOIA. Code ? 15.1-135.1(A).
"Noncriminal incidents records" are defined as
"compilations of noncriminal occurrences of general interest
to law-enforcement agencies, such as missing persons, lost and
found property, suicides and accidental deaths." Code ? 15.1-135.1(B)(5).

The Media challenge the circuit court’s application of this
exemption for several reasons. First, the Media argue that the
911 Tape is not a law enforcement record because Surry County,
not the SCSO, created and funds the 911 System, and Sheriff Brown
is merely the tape’s custodian. However, the SCSO operates the
911 System during the performance of its traditional law
enforcement responsibilities. The fact that Sheriff Brown carries
out this service on behalf of the county does not make the 911
Tape any less a law enforcement record. Furthermore, Code ? 15.1-135.1 directs a
sheriff to maintain, "in addition to other records required
by law," other enumerated records "necessary for the
efficient operation of a law-enforcement agency." One such
type of record is "noncriminal incidents records." Code
? 15.1-135.1(A).

The Media, however, assert that the 911 Tape does not fall
under "noncriminal incidents records" because it is not
a compilation. According to the Media, the 911 Tape is only raw
data and not an orderly report or summary created by assembling
raw data, i.e., a compilation. Nonetheless, we conclude that the
tape is a grouping of electronically gathered information and
thus a "compilation." The tape at issue in this case is
not just a recording of the conversation between the 911 caller
and the dispatcher. Rather, it is a recording on multiple
channels of all radio traffic handled through the SCSO’s dispatch
office in addition to conversations occurring on SCSO’s four
telephone lines and conversations between individuals physically
in the dispatcher’s office. In short, all activity occurring in
the dispatch office as well as that on the four telephone lines
is compiled on this tape.

Finally, the Media argue that the 911 Tape is not the kind of
"noncriminal incidents" included in this exemption.
Yet, 911 calls frequently concern suicides or accidental deaths,
which are two of the specific examples included in Code ? 15.1-135.1(B)(5).
Even the 911 call at issue here involved the initially
unexplained death of a child.

Thus, we conclude that the 911 Tape falls squarely within the
exemption set forth in Code ? 15.1-135.1(B)(5).
Contrary to the Medias
argument, the fact that Sheriff Brown voluntarily provided a
transcript of the specific 911 call does not waive his right to
deny access to the actual tape under this exemption.[6] See Westminster-Canterbury
v. City of Virginia Beach
, 238 Va. 493, 503, 385 S.E.2d 561,
566 (1989) ("[E]stoppel does not apply to the state or to
local governments when acting in a governmental capacity.");
see also Litchfield Plantation Co., Inc. v. Georgetown
County Water and Sewer District
, 443 S.E.2d 574, 575 (S.C.
1994) (holding that FOIA exemptions not waived by public body’s
failure to respond).

For these reasons, we will affirm the judgment of the circuit

Record Number 970002 — Affirmed.
Record Number 970003 — Affirmed.





[1] The lower court consolidated
several petitions for mandamus and injunctive relief with a
declaratory judgment action. Judi Tull, The Daily Press, Inc., W.
Alec Cunningham, Times Publishing Company, Brian M. Rafferty,
Chesapeake Publishing Corporation, David Strickland, and WAVY-TV
filed the petitions for mandamus. Harold D. Brown, Sheriff of
Surry County, filed the application for declaratory judgment.

[2] Sheriff Brown agreed to
preserve the 911 Tape at issue in this case.

[3] A court reporter prepared the
transcript after listening to the separate channels on the tape
and integrating the various recordings into one document.

[4] Code ? 2.1-341 defines
"official records" as:

[A]ll written or printed books, paper, letters, documents,
maps and tapes, photographs, files, sound recordings, reports
or other material, regardless of physical form or
characteristics, prepared, owned, or in the possession of a
public body or any employee or officer of a public body in
the transaction of public business.

[5] But see Cincinnati
Enquirer v. Hamilton County
, 662 N.E.2d 334, 337 (Ohio 1996)
("There is no expectation of privacy when a person makes a
911 call. Instead, there is an expectation that the information
provided will be recorded and disclosed to the public.").

[6] Likewise, the fact that Sheriff
Brown recycles the tapes does not affect their exemption under

In light of this decision, we do not address the media’s
remaining assignment of error. We also do not decide whether the
911 Tape would be exempt under other subsections of Code ? 15.1-135.1(B) since
Sheriff Brown did not rely on those subsections in denying the
Media’s requests. See Code ? 2.1-342(A)(2).