Viewpoint - May 4, 2011

Editorial: Time to unlock secret 911 tapes

The city of Menlo Park has long taken the position that 911 tapes are not public records and never will be, based on a narrow reading of the law that was established to make more such records available to the public.

In the latest case, Vickie Smothers simply asked to review the 911 call she made on April 9 after a racially tinged road-rage encounter on Ravenswood Avenue. Her request was denied, as was a public records request filed by the Almanac, which published a story about the incident last week.

In denying both requests, City Attorney Bill McClure said Menlo Park treats 911calls as investigatory records, saying their release is exempt under a portion of Government Code section 6254(f), and adding that the tapes do not have to be released even after an investigation is closed.

The only times 911 tapes are released, Mr. McClure said, are in certain traffic cases, or when the recording is requested by subpoena or a discovery request as part of a lawsuit.

However, the Almanac found an exception. In 2002, the city released a 911 call as a courtesy to the couple who made it, after a dispatcher mislabeled the incident as domestic violence. The couple said they later gave the tape to a lawyer representing a client suing the city for police brutality.

Menlo Park's policy stands out for all the wrong reasons, compared with Palo Alto's and Mountain View's, as well as San Mateo County's. Those agencies do release 911 tapes on a case-by-case basis. Also, San Bruno released related 911 calls after a PG&E gas pipeline exploded last year when ABC News filed a public records request.

When the state Legislature approved the California Public Records Act, the intent was clear: "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."

The act lists a few exceptions, but the overriding thrust is to release all records to the public, including law enforcement records, which are summarized in Section 6254(f) of the act. The exemption cited by Menlo Park says "... unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation."

It is unfortunate that Menlo Park has declared the exception to be the rule, establishing a policy that no 911 recordings will be released. This blanket refusal, even to the person who made the 911 call, is wrong, and should be changed.

For example, in the case of Ms. Smothers, a respected addiction counselor in East Palo Alto who was named to the San Mateo County Women's Hall of Fame in 2003, the city denied her request to hear the 911 tape, saying it was inappropriate in light of the city's non-disclosure policy.

But Peter Scheer, staff attorney for the First Amendment Coalition, a watchdog group that advocates for open meetings and records, said the city needed to cite a specific reason for denying Ms. Smothers' request.

"They must point to an exemption or other legal authority for withholding records. It can be conclusory. They don't have to explain or elaborate. But saying 'it's not our policy' doesn't cut it," Mr. Scheer said.

If an open investigation could be harmed by releasing a 911 tape, it makes sense for the police to withhold it. But how can that be the case here? Ms. Smothers' request came after a frightening road-rage incident in the city on April 9, when she said she was tailgated by a man driving a black SUV beginning on Ringwood Avenue and continuing to Ravenswood Avenue.

At the Laurel Street intersection, the man yelled racial epithets at Ms. Smothers, who is black, and ultimately used his car to block her from moving forward. At this point, she says, the white man got out of his car holding a stick or club in his hand, threatening to kill her, and kept shouting obscenities before eventually leaving the scene. After finding her cell-phone battery dead, she took refuge at a restaurant and called 911.

Back in 2002, the city did release a recording of a 911 call. We see no reason why Menlo Park should not release 911 records on a case-by-case basis, similar to Palo Alto, Mountain View, and San Mateo County. We doubt that there is a legitimate reason in most cases to withhold the calls.

Instead of hurting the investigation, in the current case, it's possible that releasing the recording could jog the memory of someone who witnessed the road-rage incident and could give police more information to find the offender.


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