Are 911 emergency call recordings public records that anyone can request in Maryland?

Plain-English summary

The chairman of Maryland's Emergency Number Systems Board asked whether tape recordings of calls to 911 emergency centers were subject to disclosure under the Maryland Public Information Act (PIA), and if so, whether any circumstances would allow or require withholding a recording.

The Attorney General concluded that 911 call recordings were "public records" under the PIA's broad definition, since local 911 centers are government agencies and the recordings are made in connection with public business. From there, the opinion worked through the PIA's specific exceptions. Any portion of a recording containing medical or psychological information, such as a caller's description of an injured or ill person's symptoms, had to be withheld under the PIA's mandatory medical-information exception. Recordings of calls for police assistance were treated as part of an "investigatory file compiled for a law enforcement purpose," which gave the custodian discretion to withhold a recording, but only if disclosure would be contrary to the public interest, not as an automatic bar. All other 911 recordings, the opinion concluded, had to be disclosed on request, subject only to the PIA's rarely used court-ordered nondisclosure procedure for records whose release would cause substantial injury to the public interest.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a member of the public request the recording of a specific 911 call in Maryland?
Under this 1986 opinion, generally yes: the Attorney General concluded 911 recordings are public records that must be disclosed on request, unless a specific PIA exception applied to that particular recording.

Would a 911 recording containing details about a caller's medical condition be released to the public?
No. The opinion concluded the PIA required a custodian to withhold any part of a recording containing medical or psychological information about an individual, regardless of who requested it.

Could a police department refuse to release a 911 recording just because a call led to a police response?
Not automatically. The opinion found that police-assistance recordings fell within a discretionary, not mandatory, exception, so a custodian could withhold one only upon concluding that disclosure would be contrary to the public interest.

Background and statutory framework

Maryland established its 911 system by statute in 1979 to give citizens quick access to police, fire, and ambulance services statewide, with the Emergency Number Systems Board overseeing local systems and requiring that all incoming calls be electronically recorded. The Public Information Act, in turn, defines "public record" broadly to include tape recordings made by a government unit in connection with public business, so the opinion found the 911 tapes squarely covered.

The opinion then worked through the PIA's layered exception scheme. It found the general "privileged or confidential" exception inapplicable, since no common-law privilege or independent confidentiality statute protected 911 calls generically. It found the PIA's list of automatically protected record categories did not include 911 recordings. It applied the mandatory medical-information exception to the portions of calls describing an ill or injured person's symptoms or condition, reasoning that a tape must be reviewed and redacted rather than withheld in full. It analyzed the discretionary law-enforcement exception, drawing on federal Freedom of Information Act case law construing an analogous "investigatory file" exception, and concluded that calls for police assistance qualify as part of an investigatory file because they trigger a police response, but that classification only opens the door to discretionary withholding tied to the public interest, not automatic secrecy. Because the requester's identity and intended use of a public record generally cannot affect disclosure under the PIA, the opinion noted that when the requester was not the person whose call was involved, the various privacy-related exceptions could be construed somewhat more liberally to protect against an unwarranted invasion of privacy.

Citations

Statutes:

• Article 41, §204H-1 through 204H-8 of the Maryland Code (establishing the 911 Emergency Telephone System)
• Article 41, §204H-1(d) and (e) (purpose and designation of 911 as the primary emergency number)
• Article 41, §204H-1(b) and (c) (General Assembly's findings on emergency telephone confusion)
• Chapter 730, Laws of Maryland 1979 (enacting the 911 system statute)
• COMAR 12.11.03.05E and F (minimum requirements including recording of incoming 911 calls)
• §10-402(c)(4) of the Courts Article (exempting 911 call recording from the wiretapping prohibition)
• SG §10-611(f) (definition of "public record," including tape recordings)
• SG §10-612(a) (PIA's purpose of affording public access to government information)
• SG §10-612(b) (construction favoring inspection absent unwarranted invasion of privacy)
• SG §10-613(a) (general duty of a custodian to permit inspection)
• SG §10-611(c) (definition of "custodian")
• SG §10-611(e) (definition of "person in interest")
• SG §10-615 (mandatory withholding of privileged, confidential, or otherwise legally protected records)
• SG §10-616 (list of automatically protected record categories)
• SG §10-617(b) (mandatory withholding of medical or psychological information)
• SG §10-617(c) (withholding of sociological information, if defined by custodian regulation)
• SG §10-618(a) (discretionary withholding contrary to the public interest)
• SG §10-618(f)(1)(i) and (ii) (records of investigations; investigatory files for law enforcement purposes)
• SG §10-618(f)(2) (harms relevant to the public-interest determination)
• SG §10-619(a) (court-ordered temporary nondisclosure procedure)
• SG §10-614(b)(3) (notice requirements upon denial of a disclosure request)
• Article 27, §739 (nondisclosure of expunged police records)
• Article 27, §735(e) (definition excluding investigatory files from the expungement provision)
• COMAR 12.11.02.02M(2)(a) and (g) (example definition of "sociological data" for parole and probation records)
• 5 U.S.C. §552(b)(7) (federal FOIA law-enforcement records exception)
• 7 U.S.C. §2020(e) (federal statute limiting disclosure of food stamp recipient information)

Cases:

• A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26 (1983)
• Superintendent, Maryland State Police v. Henschen, 279 Md. 468 (1977)
• 61 Opinions of the Attorney General 702, 705 (1976)
• 66 Opinions of the Attorney General 98, 103 (1981)
• 64 Opinions of the Attorney General 236, 241-43 (1979)
• 63 Opinions of the Attorney General 543, 547 (1978)
• NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221-22 (1978)
• Evans v. Department of Transportation, 446 F.2d 821, 824 (5th Cir. 1971)
• Luzaich v. United States, 435 F. Supp. 31, 34, aff'd per curiam, 564 F.2d 101 (8th Cir. 1977)
• Faulk v. State's Attorney, 299 Md. 493, 506 (1984)
• Cranford v. Montgomery County, 300 Md. 759, 780 (1984)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC INFORMATION

911 System—Recordings Of All 911 Calls Are "Public Records" Generally Subject To Disclosure, But Portions Of The Recordings Are Within Certain Exceptions To Disclosure.

April 4, 1986

Mr. John G. Rouse, III
Chairman, Emergency Number Systems Board

You have requested our opinion on whether tape recordings of calls to 911 Emergency Telephone System centers are subject to the disclosure requirements of the Maryland Public Information Act (the "PIA") and, if so, whether there are any circumstances under which disclosure may or must be denied.

For the reasons stated below, we conclude that:

1. Recordings of calls to 911 Emergency Telephone System centers are "public records" under the PIA.

2. The portion of any recording that contains medical or psychological information about an individual may not be disclosed.

3. Recordings of calls for police assistance may be withheld from disclosure, but only if disclosure would be contrary to the public interest.

4. All other recordings must be disclosed upon request, except in the extraordinary situation in which a court is asked to withhold otherwise available information.

This opinion confirms the substance of a prior advice letter on this issue. Letter from Dennis M. Sweeney, Deputy Attorney General, to Russell E. Wroten, Chief of Police of Cambridge, Maryland (June 26, 1984).

I
911 Emergency Telephone System

The 911 Emergency Telephone System was established in Maryland by Chapter 730 of the Laws of Maryland of 1979. That statute, now codified at Article 41, §§204H-1 through 204H-8 of the Maryland Code, was enacted in response to the General Assembly's finding of a need "to eliminate delays [in citizens' summoning appropriate emergency aid] caused by lack of familiarity with emergency numbers and by understandable confusion in circumstances of crisis." Article 41, §204H-1(d). The General Assembly "recognize[d] that [emergency] assistance is almost always summoned by telephone and that a multiplicity of emergency telephone numbers exist[ed] throughout the State and within any one county" and expressed its "concer[n] that avoidable delays in reaching appropriate emergency aid [were] occurring to the jeopardy of life and property." Article 41, §204H-1(b) and (c). To that end, the General Assembly established the number 911 as "the primary emergency telephone number for the State of Maryland." Article 41, §204H-1(e).

As of July 1, 1985, a 911 system was in operation in Baltimore City and in each of Maryland's counties. Maryland thus became the second state to have a 911 system in effect state-wide. As it happens, Maryland was preceded by our good neighbor Delaware, which has, of course, historically prided itself on being the "first state."

The 911 system in each jurisdiction provides citizens with easy emergency access to police, fire fighting, and emergency ambulance services. When the 911 number is dialed, the caller automatically reaches a public safety answering point operated around the clock in the county where the call is made. Personnel at that answering point determine the nature of the emergency and route the call to the appropriate agency for response or directly dispatch the needed assistance.

The county systems are overseen by the Emergency Number Systems Board, which must approve all local plans for the installation or expansion of 911 systems and review and coordinate their operation. The minimum requirements for 911 systems established by the Board include electronic recording, with playback capability, of all incoming calls. COMAR 12.11.03.05E and F. The tapes themselves are physically maintained in the local 911 emergency communication centers. The taping of such emergency telephone calls is lawful, notwithstanding the general prohibition against wiretapping, under §10-402(c)(4) of the Courts Article.

II
Public Information Act Disclosure Requirements

The PIA, codified at §§10-611 through 10-628 of the State Government Article ("SG" Article), is designed to afford the public a general right of "access to information about the affairs of government and the official acts of public officials and employees." SG §10-612(a). To that end, the PIA requires that, "[e]xcept as otherwise provided by law, a custodian shall permit a person or governmental unit to inspect any public record at any reasonable time." SG §10-613(a).

A "public record" is any documentary material, expressly including a tape recording, that "is made by a unit or instrumentality of the State government or of a political subdivision or received by the unit or instrumentality in connection with the transaction of public business." SG §10-611(f). Thus, the PIA applies to all the records of every agency that carries out governmental functions, whether on the State or local level. See A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26 (1983).

In light of the PIA's broad scope, there is no question that the 911 emergency centers operated by the counties are governmental agencies subject to the PIA and that the tape recordings of telephone calls to those centers are public records within the meaning of the PIA. Thus, unless the recordings are specifically exempted from the PIA's disclosure requirements, they must be made available to anyone who requests them. Superintendent, Maryland State Police v. Henschen, 279 Md. 468 (1977). See also 61 Opinions of the Attorney General 702, 705 (1976) (clerk of court may not deny access to marriage records, regardless of their intended use by person seeking inspection).

The "custodian" of a public record is the governmental officer or employee who is responsible for keeping the public record or who actually has physical custody and control of the record. SG §10-611(c). Because the Emergency Number Systems Board does not itself operate any 911 system nor receive physical custody of any of the local systems' tapes, it is not the custodian of those tapes. Therefore, any request for access to those tapes must be directed to the local government officials or employees who operate the 911 systems in the various political subdivisions.

III
Exceptions to Disclosure

A. Introduction

Despite the PIA's general purpose to permit broad public access to public records, the Act contains a number of provisions that require or permit a custodian to deny requests for inspection of records. Those exceptions should, as a general matter, be construed narrowly, to promote public access to information about governmental activities.

At the same time, the PIA recognizes that the public's right to information is counterbalanced by the right to privacy of individuals who are subjects of governmental records. SG §10-612(b) accordingly provides that, "unless an unwarranted invasion of the privacy of a person in interest would result, [the PIA] shall be construed in favor of permitting inspection of a public record." The "person in interest" with regard to a public record is any person who is the subject of the records, or that person's designee or legal representative. SG §10-611(e). Particular calls for emergency assistance might well reveal intimate personal information about the caller or others. In those circumstances, we think that releasing the record to anyone other than the person in interest would be "an unwarranted invasion of [that person's] privacy." Consequently, when the applicant seeking disclosure of such a call is not the person in interest, the PIA's exceptions can and should be construed somewhat more liberally than would otherwise be the case.

B. Privileged or Confidential Records

Public records must be withheld from disclosure to the extent that (i) the information they contain is made "privileged or confidential" by law or (ii) inspection of a particular record would be contrary to State or federal law, the rules adopted by the Court of Appeals, or a court order. SG §10-615. However, none of those exceptions applies to the recordings of calls made to 911 centers. While callers might prefer that their calls be kept confidential, the requirement that "privileged or confidential" records be withheld from public inspection, by its terms, applies only to records protected by common-law or statutory privileges, such as the attorney-client or psychiatrist-patient privilege, or by other confidentiality requirements. See, e.g., 66 Opinions of the Attorney General 98, 103 (1981); 64 Opinions of the Attorney General 236, 239 (1979). Nor does any federal or State law or court rule generally prevent inspection of calls to 911 centers. Cf. 7 U.S.C. §2020(e) (limiting disclosure of information concerning food stamp recipients).

Article 27, §739 prohibits disclosure or review of expunged police records pertaining to a criminal proceeding. However, those records by definition do not include "investigatory files [or] police work-product records used solely for police investigation purposes." Article 27, §735(e). That exclusion clearly encompasses records of calls for police assistance.

C. Other Personal Records

The PIA itself requires that certain enumerated records not otherwise made confidential be withheld from public inspection. SG §10-616. However, records of calls for emergency assistance are not included in that list of protected records. Records of calls to 911 centers are therefore not automatically and wholly exempt from disclosure under that section.

D. Personal Information

1. Medical and psychological information

The PIA requires that certain specific types of information be withheld from public disclosure. SG §10-617(b) requires a custodian to "deny inspection of the part of a public record that contains medical or psychological information about an individual." In our view, statements concerning an injured or ill person's symptoms or condition, provided to a 911 center operator for the purpose of obtaining appropriate emergency medical care, are "medical or psychological information" that must be withheld.

The inclusion of such information in a public record does not preclude public access to the entire record, however, it is only the part that contains the protected information that must be withheld. Therefore, if access to a tape is requested, the tape must be reviewed to determine whether portions of it contain information that must be deleted before the tape's release. We direct your attention also to SG §10-614(b)(3), under which an applicant must be given prompt written notice of the reasons and authority for any denial of a disclosure request and of the procedures for review of the denial that are available to the applicant.

2. Sociological information

SG §10-617(c) requires that "sociological information" be withheld, if, but only if, "the official custodian has adopted rules or regulations that define sociological information for purposes of this subsection." Although the PIA does not provide further guidance, the apparent intent is to permit the protection of the kind of personal information that a person would disclose only under the conditions of confidentiality that customarily attend sociological studies. Thus, for example, the Department of Public Safety and Correctional Services has defined "sociological data," with respect to parole and probation authorities, as including "[p]ersonal relationships, beliefs, values, etc.," and "[r]eligious preference and attendance." COMAR 12.11.02.02M(2)(a) and (g). The Emergency Number Systems Board might wish to consider the preparation of a model regulation along these lines.

E. Discretionary Nondisclosure

In addition to requiring that certain records or information be withheld from public inspection, the PIA also grants custodians discretion to deny inspection of particular parts of specified records if inspection by the applicant "would be contrary to the public interest." SG §10-618(a). That section, like SG §10-616, applies only to the records specifically there designated. Those include "records of investigations conducted by ... a State's attorney, ... a police department, or a sheriff" and "an investigatory file compiled for any other law enforcement ... purpose." SG §10-618(f)(1)(i) and (ii). In our view, recordings of calls to 911 centers for police assistance generally are not "records of an investigation conducted by" a law enforcement agency, but they are part of "an investigatory file compiled for any other law enforcement ... purpose."

1. Records of investigations

In 63 Opinions of the Attorney General 543, 547 (1978), this office concluded that arrest logs are not "records of investigations" because they "merely reflect the end result of a police investigation. They contain no information whatever concerning the actual investigation." At the same time, the Attorney General noted that "should such records contain such investigatory material, they may very well be subject to the [SG §10-618(f)(1)(i)] exception." Id. The same is true, in our opinion, of records of calls to 911 centers for police assistance.

A call to a 911 center does not directly convey any information to law enforcement officials. The centers are not themselves part of any of the agencies enumerated in SG §10-618(f)(1)(i), and the 911 operator who takes a call simply dispatches needed police assistance to the location indicated. Only on rare occasions do law enforcement officials review the recording of such a call as part of an investigation. Thus, like arrest logs, records of calls to 911 centers ordinarily "contain no information whatever concerning the actual investigation" conducted by a law enforcement agency. Should the record of a call actually be used in an investigation, however, it would be a record of the investigation.

2. Investigatory files

However, we think that records of calls for police assistance are part of "an investigatory file compiled for any other law enforcement ... purpose," within the meaning of SG §10-618(f)(1)(ii). Those calls trigger an investigation, at least to the extent of a police response to ascertain whether further law enforcement action is needed. In our view, the recorded complaint that triggers such an investigation is part of an "investigatory file." And the records of calls to 911 centers are compiled for the law enforcement purpose of ensuring that police assistance is promptly dispatched in an emergency.

Federal courts construing the analogous exception in the Freedom of Information Act (the "FOIA") have held that letters triggering agency investigations are covered by that exception. E.g., Evans v. Department of Transportation, 446 F.2d 821, 824 (5th Cir. 1971) (letter inquiring how to bring pilot's abnormal behavior to attention of proper authorities was part of investigatory file); Luzaich v. United States, 435 F. Supp. 31, 34, aff'd per curiam, 564 F.2d 101 (8th Cir. 1977) (unsolicited anonymous tip advising Internal Revenue Service to audit taxpayer was investigatory record). As originally enacted, the FOIA exception authorized nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 221-22 (1978). It now authorizes nondisclosure of "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would" harm specified governmental interests. 5 U.S.C. §552(b)(7). Under the FOIA, the term "investigatory records" is narrower than "investigatory files." See 437 U.S. at 229-30.

The Court of Appeals has held that FOIA decisions are persuasive as to the interpretation of the PIA. Faulk v. State's Attorney, 299 Md. 493, 506 (1984). Hence, Maryland courts would, we think, likewise conclude that the records of complaints that trigger investigations constitute "an investigatory file," whether they are embodied in tape recordings or written communications.

However, the conclusion that 911 calls for police assistance are an "investigatory file compiled for [a] law enforcement purpose" does not by itself mean that the recordings may be withheld. First, if the applicant is a person in interest, nondisclosure is authorized only to the extent that disclosure would cause one of the harms specified in SG §10-618(f)(2). See generally 64 Opinions of the Attorney General 236, 241-43 (1979) (discussing grounds for nondisclosure of investigatory records). Moreover, any other person is entitled to access unless the custodian has reason to conclude that inspection of the record "would be contrary to the public interest." SG §10-618(a). In considering "the public interest," the custodian should also take account of the harms specified in SG §10-618(f)(2). See Attorney General's Office, Public Information Act Manual 28 (4th ed. 1985). In particular, the custodian should consider whether the information on the recording is such that disclosure would "constitute an unwarranted invasion of personal privacy."

F. Court-Ordered Nondisclosure

Finally, the PIA provides for temporary denial of inspection of any public record when "the official custodian believes that inspection would cause substantial injury to the public interest." SG §10-619(a). The official custodian must petition the circuit court for an order permitting continued nondisclosure within 10 days of the original denial under this section. The person who sought access to the record must be notified of that action and has the right to appear and be heard in the court's proceeding on the petition.

The governmental entity in such a proceeding bears the burden of proving that disclosure would do substantial injury to the public interest. Cranford v. Montgomery County, 300 Md. 759, 780 (1984). Moreover, meeting that burden of proof may be difficult, for the PIA generally "shall be construed in favor of permitting inspection of a public record." SG §10-612(b). This "extraordinary" procedure is very rarely invoked. See Public Information Manual at 35.

IV
Conclusion

In summary, it is our opinion that:

1. Recordings of calls to 911 Emergency Telephone System centers are "public records" under the PIA.

2. The portion of any recording that contains medical or psychological information about an individual may not be disclosed.

3. Recordings of calls for police assistance may be withheld from disclosure, but only if disclosure would be contrary to the public interest.

4. All other recordings must be disclosed upon request, except in the extraordinary situation in which a court is asked to withhold otherwise available information.

Stephen H. Sachs
Attorney General
Emory A. Plitt, Jr.
Assistant Attorney General
C. J. Messerschmidt
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice