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Refusal to release 911 tapes debated

Cops fear 'chilling effect'; others back public right to know

Published January 12, 2006 at midnight

Denver police officials have refused to release the tapes of 911 calls in two recent cases in which the department's actions have been called into question - thrusting the city into the midst of a growing debate about the right to know and the right to privacy.

In both cases - one in which a man was left in a coma after an altercation with officers and one in which a father questioned the time it took help to arrive for his dying son - Denver police declined requests for the 911 tapes.

In each case, department administrators cited the same reason: that the tapes were part of an ongoing investigation and that releasing them could have a "chilling effect" on the willingness of people to call 911.

Police Chief Gerry Whitman defended the determination in the two recent cases, noting that in other instances the department has made the tapes public. But he also said he is increasingly concerned about the potential for retaliation against people who call 911.

"People need to realize that if they call the police that that information is going to be used for police purposes," Whitman said. "If they're going to call on their neighbor, they don't need to fear their neighbor going down and getting a copy of the tape - so it will have a chilling effect."

Charles Davis, an associate professor at the University of Missouri School of Journalism and director of the National Freedom of Information Coalition, said this was the first time he had heard that argument.

"The chilling effect argument is a novel one," Davis said. "I've heard the straight-on privacy argument. I've heard the tabloidization of 911 calls one. But I've not heard the chilling effect one."

Davis said 911 tapes are an important tool to help people understand whether their public agencies are doing their jobs.

"Access to 911 tapes has told lots and lots of stories about accountability, about response times, about the actions of public officials," Davis said. "We've used 911 tapes to tell a lot of stories about how well police officials are doing their job."

Past 911 tapes shed light

Colorado is no exception.

Without the public dissemination of a 911 tape, motorists might not have learned that someone called for help in May 2004 after seeing a bridge girder hanging at an odd angle over Interstate 70. A dispatcher misunderstood the call, sending a road crew to examine a traffic sign. The girder collapsed 74 minutes after the 911 call, killing an Evergreen couple and their young daughter.

Without a tape, the public might not have known that last June an Aurora 911 dispatcher told a caller "that's not my problem" as the caller attempted to report an apartment fire. The comment was part of a pattern of conduct that officials concluded led to a two-minute delay in the response of firefighters. The dispatcher lost his job over the incident.

And without a tape, the public might not have known that in July 2001 police dispatchers in Colorado Springs failed to notify an officer after five separate calls from motorists that a car was speeding the wrong way on Interstate 25. The sixth 911 call - seven minutes after the first - reported that the car had slammed into another vehicle, killing a man.

In each case, tapes of the 911 calls were made public within days of the incidents.

At the root of the question is Colorado law, which governs access to the records of government agencies. The Colorado Open Records Act grants the public access to a large swath of documents held by government agencies, while at the same time directing that some materials, like personnel files, be kept confidential.

The Colorado Criminal Justice Records Act covers many of the documents used by law enforcement agencies. That law gives police some leeway to withhold information in cases that are the subject of ongoing investigation.

But while those same records would presumably be made available once an investigation is complete, Whitman could not say whether the tapes in either of the recent cases will ever be made public.

Whitman said he did not believe Denver's stance was unique.

"I think what you'll find is most people don't release those," Whitman said.

But officials from several other law enforcement agencies all said the same thing: They treat each request individually.

"Generally speaking, we treat those as pretty much public record," said Arvada police spokeswoman Susan Rossi Medina.

"To be honest with you, we've denied very few (requests), and it's not any one thing," said Colorado Springs police Lt. Rafael Cintron.

He said in one incident, the city concluded it could legally withhold the tape of an incident in which a police officer suffered a medical condition and then requested help on the radio. "That's the only one that I can even recall us denying," Cintron said.

And Lakewood police spokesman Steve Davis said that if "no damage" is done to an investigation, the department would release a 911 tape.

"If we're working a homicide we haven't made an arrest on, and we're working it as an open, active investigation, we might not," Davis said.

Possible chilling effect

The privacy question is a relatively new one in the public records arena.

Most recently, the Colorado Supreme Court rejected the argument from the parents of Columbine killers Eric Harris and Dylan Klebold that writings and other materials taken from their homes could not be made public because they amounted to private property.

But a privacy claim in a 911 tape raises different questions.

One privacy-rights advocate said she could see arguments on both sides.

"Unfortunately, the privacy excuse has been used by government agencies to restrict access to agency records," said Beth Givens, director of the Privacy Rights Clearinghouse in San Diego. "On the other hand, in the case of 911 calls, I can understand the privacy argument.

"Individuals might not want to call 911 knowing that the record of the call could be obtained by the media, or for other purposes, later on. Many calls to 911 involve very sensitive personal matters, like domestic violence."

Cindy Southworth, director of technology at the Washington D.C.-based National Network to End Domestic Violence, also said that the fears expressed by Whitman are genuine.

"We don't want a woman to be listening to the radio the next day and hearing the traumatic details of her 911 call on the radio," Southworth said. "It would have a distinct chilling effect on victims calling for help if they knew the entire community was going to hear their 911 call in verbatim detail."

She said, however, that she could see a logical middle ground, such as the release of a partial tape or transcript that would both give the public the ability to judge law enforcement agencies and protect those calling for help.

At the same time, First Amendment advocates argued that there are times when the public's interest outweighs that of an individual.

"We as a society are eventually going to have to come to a moment of time where scrutiny of public processes, like a 911 response, is a good thing - an inherently good thing," said the University of Missouri's Davis. "Yes, it can be abused. Yes, it can be misused. Those are bad things.

"But the overall value to transparency outweighs that."

'What do they have to hide?'

In both of the recent cases, families questioned the conduct of Denver police officials.

In November, Thomas Charles "T.C." Armstrong was severely injured and left in a coma after a confrontation with police officers. Department officials have denied any wrongdoing and said that Armstrong attacked an officer.

In the December incident, Antonio Parker alleged that officials were slow to respond to his 911 call after he discovered his young son wasn't breathing.

When the Rocky Mountain News requested that tape, the newspaper included a signed release from Parker in which he gave his permission for the release of his 911 call.

That fact stunned Tom Kelley, a First Amendment attorney in Denver.

"That's ridiculous," he said. "That's not a whistle-blower situation. If you are going to try to use that as a justification, you can't do it on a blanket basis.

"The case of the father claiming the response is slow is a classic example where there is no whistle-blower and darn good reason for the public to want to know."

Len Ackland, a journalism professor at the University of Colorado, echoed that sentiment.

"What do they have to hide?" he said. "That's the big question that always comes up when there are these kinds of claims for confidentiality.

"It's absurd and they shouldn't be allowed to get away with it."

Cole Finegan, acting chief of staff for Denver Mayor John Hickenlooper, said the request for the 911 tapes will be considered later this week when administration officials gather to discuss a number of open records issues.

In all cases, people have the right to take public agencies to court to fight for the release of records.

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