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.