Posted on January 26, 2011 by Charles Coble

New Effort to Restrict Access to 911 Calls in North Carolina

As the 2011 session of North Carolina's General Assembly kicks off this week, we see the first (and likely not the last) salvo seeking to curtail access to public records in North Carolina.  Representatives of the Durham Police Department have persuaded the N.C. Association of County Commissioners to lobby the legislature to revise North Carolina's Public Records Act so that it no longer provides unfettered access to 911 tapes.  Instead, police departments would have to provide only written transcripts of recordings or recordings that obscure or distort the caller's voice.

As currently drafted, N.C. Gen. Stat. s. 132-1.4(c)(4) specifically provides for access to 911 recordings, stating that the following "shall be public records":

The contents of "911" and other emergency telephone calls received by or on behalf of public law enforcement agencies, except for such contents that reveal the name, address, telephone number, or other information that may identify the caller, victim, or witness.

Such tapes offer an important newsgathering source for media organizations, not just with respect to criminal conduct and emergency events but also with respect to the performance of 911 call operators.

The motivation for seeking a change in this law is apparently a particular instance in which a 911 call was aired on television, and the caller was recognized by voice and subsequently stopped cooperating with Durham police after being threatened.  The problem with this approach to lawmaking is that it would have access to 911 records for everyone turn on the peculiarities of an exceptional circumstance.  We've seen this same sort of argument made before with respect to autopsy records, and we've reported on similar rationales given for restricting access to 911 calls in other jurisdictions.  These arguments allow the tail to wag the dog when it comes to access to government records.

The argument in this particular case also ignores the presence of a safety valve.  In this case, if a police department truly felt that a cooperating witness would be placed in harm's way if a 911 recording were made available, the department could seek a court order under N.C. Gen. Stat. s. 132-1.4(e) to restrict access to the recording and to permit the department instead to provide a written transcript of the call.  Thus, the law as currently written has a mechanism for addressing the truly exception situations in which the Durham police department's concern is triggered, while preserving unrestricted access in the vast majority of cases in which that concern does not arise.  The General Assembly should retain this sensible approach.

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Posted on January 25, 2011 by Charles Coble

U.S. Supreme Court Denies Cert in Fair Report Case

Among the cases for which the United States Supreme Court denied certiorari Monday was the case of Salzano v. North Jersey Media Group. The Court's decision not to accept the case for review allows an important fair report decision issued earlier this year by the New Jersey Supreme Court to stand.

As we previously reported, the opinion of New Jersey's highest appellate court overturned a lower court ruling that imposed a troubling limitation on the fair report privilege.  The privilege is a critical component of the battery of defenses reporters and news organizations have to fend off defamation and privacy claims.  Pursuant to the privilege, if a reporter provides a fair and substantially accurate account of information appearing in an official government record or matters discussed in a government proceeding, the reporter will not face liability even if the official information proves to be incorrect.  Without it, reporters would be forced to go behind official records and official statements, which would chill reporting on the business of government.

The Salzano case involved a media report upon a filing made in a bankruptcy matter.  Despite the fact that the filing -- which instituted a legal claim against the debtor -- was newsworthy, as were the allegations made by the bankruptcy trustee in that filing, the intermediate appellate court in New Jersey held that the fair report privilege had no application.  It reasoned that the privilege should protect only reports made of final decisions in civil proceedings, not initial allegations.

The New Jersey Supreme Court rejected that reasoning with strong language affirming the importance of the fair report privilege:

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters. Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so. Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception. A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The U.S. Supreme Court's decision yesterday means that the Salzano decision will continue to stand as an important bulwark against efforts to undermine the scope and application of the fair report privilege.

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