Is Disclosing a 911 Call to the Public a Privacy Violation?
posted by Daniel Solove
Whenever there’s a story these days about an emergency 911 call, the call is often disclosed to the public. Recently, there was news of yet another public disclosure of a 911 call, this time a call by a woman who witnessed the suicide of Marie Osmond’s son.
I’ve long thought that the public disclosure of 911 calls violates the privacy of the callers. Many 911 calls involve people calling for medical reasons, and matters about their physical or mental health are discussed in the call. Doctors and nurses are under a duty of confidentiality, so why not 911 call centers, especially when people are revealing medical information?
The call about Osmond’s son was by a witness. But suppose a person who attempted suicide called 911 and asked for an ambulance. This would reveal highly sensitive medical information about the person and the fact the person attempted suicide.
Recently, the Associated Press ran a story on the issue of public disclosure of 911 calls:
Linda Casey dialed 911 and screamed, “Oh, God!” over and over again into the phone after finding her daughter beaten to death in the driveway of their North Carolina home.
Later that day, she heard the 911 recording on the local news and vomited.
“This was not only the most painful thing I have ever been through, it should have been the most private,” she said in an e-mail.
Because of situations like Casey’s, lawmakers in Alabama, Ohio and Wisconsin are deciding whether to bar the public release of 911 calls.
Missouri, Pennsylvania, Rhode Island and Wyoming already keep such recordings private. But generally, most states consider emergency calls public records available on request, with exceptions sometimes made for privacy reasons or to protect a police investigation.
AP, States Eye Ban on Public Release of 911 Calls (Feb. 23, 2010).
Since I blogged recently about the constitutional right to information privacy, it readily comes to mind in this context. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.” This latter interest — the constitutional right to information privacy — is recognized by most federal circuit courts.
In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the 6th Circuit held that a city couldn’t disclose the addresses, phone numbers, financial information, Social Security numbers, and other personal information of police officers, as required by Ohio’s Public Records Act, because it violated the officers’ constitutional right to information privacy. The fact that a state designates information as a public record doesn’t immunize it from its constitutional obligations not to violate the privacy rights of its citizens.
Thus, despite the fact that states make 911 calls available to the public, I believe there’s an argument that doing so violates people’s constitutional right to information privacy.
And normatively, unless there’s a compelling reason, 911 calls shouldn’t be released absent the caller’s consent. Of course, one might argue that public disclosure of the calls is important for the public to vet how well the 911 operators respond to calls, but this would not likely be impeded by first obtaining people’s consent to release the call. I would think that if 911 operators didn’t handle the call well, most people would consent to disclosure so the 911 center could be held accountable.
Moreover, performance could be more accurately measured by studying the calls more systematically rather than releasing particular calls (typically about celebrities or highly-publicized incidents).
Far too often, 911 calls are made available for the prurient interest and entertainment of the public. I don’t think hearing the calls adds much to public discourse. In my view, in most cases, the balance tips toward keeping the calls confidential.
March 10, 2010 at 9:57 pm
Posted in: Constitutional Law, First Amendment, Privacy, Privacy (Medical)
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Responses (5)
Gerard Magliocca - March 11, 2010 at 6:09 am
I agree 100% Dan. I’ve always wondered about why state law mandates their release. There are some cases where it might be a good idea — when you’re looking for a suspect, let’s say — but most of the time making that information public is useless.
Justin - March 11, 2010 at 9:41 am
See NY Times Co. v. City of N.Y. Fire Dep’t, 829 NE2d 266, 270-71 (NY 2005) (holding that private 911 callers’ component of the recordings, but not necessarily the operators’ half of the conversation, were protected from release under state FOIL).
Adam - March 11, 2010 at 1:39 pm
It is time to bring this practice to an end. Invariably 911 calls involve the most unspeakable tragedies that people suffer in life. The callers are desperate and the things they are describing are extremely private. By calling 911, you are not consenting to those horrible and extremely private moments in your life to be played on the local news.
What states should do is pass a law treating these calls as privileged, much like the physician-patient or attorney-client privilege. The rationale is the same, that is protecting the privacy of the communication encourages people to seek help and to be open with the 911 operator, doctor or lawyer so the best possible assistance can be rendered.
Keeping 911 Recordings Public and Online « - April 1, 2010 at 1:09 pm
[...] to information privacy. The fact that a state designates information as public record, Solove wrote, doesn’t immunize its constitutional obligations not to violate the privacy rights of its [...]
Lorna - May 10, 2010 at 9:40 pm
@3/Adam – If states pass laws making 911 calls privileged information, then what happens to the press “check” on the government agencies that are involved in response to the 911 calls? I agree that most of the time when a 911 tape is played on TV, it is for prurient reasons. However, there have been times where such tapes have shown the incompetence of the 911 operators. These 911 operators are public employees. The press is the public’s advocate — its ears and eyes — in making sure government acts in the public’s interest. If you shield these calls from all press scrutiny, you allow incompetent government employees the ability to hide.
Perhaps a compromise could be reached where 911 tapes are not automatically released but can be accessed for private listening by the media. The press could have the right to petition a court for their release if there were a compelling public interest in their disclosure. In the interim, written transcripts could be made available.
Just some ideas for ways to mediate this conflict between two conflicting rights (privacy and the public’s right to know what the heck its government is doing).
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