KEEPING IT CONFIDENTIAL
August 9, 2013
By Scott Freitag
The Maine Legislature’s Judiciary Committee in May recommended against passing a bill to alter the state’s law as it applies to the confidentiality of information in 9-1-1 emergency call transcripts.
The bill, sponsored by Sen. David Burns, a retired state trooper, expands current law to include restrictions on “information or records that relate to a pending law enforcement investigation or a pending criminal prosecution.” Illegal disclosure would result in a Class E misdemeanor.
The legislative debate coincided with a judge’s March ruling to withhold transcripts of emergency calls relating to the murder of two teenagers on Dec. 29, 2012. The judge ruled that there was a “reasonable possibility” public disclosure could influence potential witnesses and, consequently, prejudice the case. The judge’s ruling on the confidentiality issue is on appeal.
A central question was the right of silencing transcripts by making them exclusive property of law enforcement. The Judiciary Committee more or less decided, by its vote of 8–3, to hold off until the case is decided; they took a wait-and-see attitude expressed by one member of Maine’s Judiciary Committee, who said, “Until we know what they’re doing, I just don’t want to make a wrong move.”
We’ve had a similar case in Utah that, because the case was closed, forbid the disclosure of various police reports, maps, interview transcripts, and 9-1-1 tapes.
Does the name Susan Powell ring a bell? She disappeared from her home in West Valley City, Utah, in 2009. Her body has never been found. No charges were ever filed. Her husband Josh was long suspected in her disappearance. Last year, Josh killed himself and the couple’s two young sons in a house fire in Washington State. Josh’s brother Michael, who police now believe helped Josh dispose of Susan’s body, committed suicide in February. There are no other direct suspects left.
The 9-1-1 call placed on Dec. 7, 2009, and released May 20, 2013, is haunting, at least for those of us familiar with the case. The caller—Josh’s mother Terri Powell—asks the calltaker for a welfare check at the home of her son, daughter-in-law, and their two children. Terri is on her way to the house following reports from the daycare provider that no one answers her knocks on the door. No one is picking up the phone. Despite snowfall overnight, there are no tire tracks on the driveway. The calltaker tells her response is on their way, and that ends the 4-minute, 20-second call. Later that evening Josh and the two boys return from a supposed camping trip; there is no sign of Susan.
My point is not the specific reason the call was restricted from public access. But, rather, I am questioning the authority to hold 9-1-1 calls confidential. The issue is not handled the same in each state, and, according to the National Conference of State Legislatures (NCSL), six states keep 9-1-1 calls confidential and six states place restrictions on the release of 9-1-1 calls or the information contained in them.
All states follow federal laws contained in the Health Insurance Portability and Accountability Act (HIPAA) in relation to health records and other privacy laws.
What are the options?
A policy without restriction on 9-1-1 public access, except those protected under federal law, does compel a greater sense of accountability, at least according to one side of the debate. For example, Freedom of Information Act advocates claim restrictions make it harder to track response times, and without the restrictions, the public and media maintain a 9-1-1 watchdog position.
In addition, and this is a plus for EMS response, telling the “whole story” could dispel a “mistake” media “exposes” or a judgment made by people without knowledge about how 9-1-1 operates.
On the other hand, responders have sat in favor of restrictions necessary to law enforcement investigations and to protect people from reprisal when making a 9-1-1 call that could jeopardize their security. Victim rights advocates promote restrictions to protect victims of domestic violence.
A second issue involves the ability to maintain confidentiality.
Current E9-1-1 systems are closed, single purpose systems, contrary to the multiple entities capable of sharing NG9-1-1 systems. As the National Emergency Number Association (NENA) points out in its NG9-1-1 Transition Policy Brief #6, Next Generation 9-1-1 will be part of a larger system shared with general government, private sector entities, and other public safety services/agencies. The amount and types of information available will easily exceed current systems.
This is not a one-size-fits-all decision. Each state must decide the confidentiality requirements that work for the good of the public and the good of response. Would the call from Terri Powell put us any closer to the truth if it had been released to the public at the time her daughter-in-law disappeared?
Michael Shepherd, Committee votes against making 911 call transcripts confidential, Kennebec Journal, May 14, 2012, accessed May 22, 2013, at www.kjonline.com/news/Committee-votes-against-making-911-call-transcript...