A.H. Belo Corp. v. Mesa Police Department

TIMMER, Judge,

dissenting.

¶ 21 The Majority holds today that while Dominic and his family do not have a privacy interest in the information expressed in the 911 tape, as evidenced by Mesa’s production of the transcript, they possess such an interest in the emotion produced by the call that is sufficient to overcome the strong presumption favoring disclosure of the tape. Because I agree with the trial court that Mesa failed to overcome this presumption by specifically demonstrating how disclosure would detrimentally affect any privacy interests of Dominic and his family, I respectfully dissent.

¶22 Mesa sufficiently rebutted the presumption compelling production of the tape only if it specifically demonstrated how disclosure would detrimentally affect the privacy interests of Dominic and his family. Cox Ariz. Publ’ns, Inc., 175 Ariz. at 15, 852 P.2d at 1198. The Majority reasons that Mesa overcame the presumption by introducing evidence from Dominic’s mother that broadcast of the tape would interfere with her family’s healing process, because a public airing of the tape would remind them of that painful day. See supra ¶ 12.

*189¶ 23 Like the trial court judge, I do not dispute or minimize the emotional impact that airing the tape would have on Dominic and his family. In light of the emergency nature of 911 calls, however, it is difficult to imagine a call that would not stand as a “painful reminder” to any listener who was the subject of a request for assistance or related to such a person. Yet, as Mesa concedes, 911 tapes are public records, which must be presumptively produced under the Public Records Act unless and until the legislature exempts them from disclosure. Under the Majority’s view announced today, Mesa and other cities can shield every 911 tape from inspection if its release would be emotionally upsetting to someone involved in a call. But such a sweeping exemption would contravene the strong policy favoring open disclosure and access to public records. Id. Consequently, something more than a desire by a victim’s family to avoid painful reminders of a tragic day must be demonstrated before the presumption is overcome. Such evidence is lacking in this case.

¶ 24 The majority of this nine minute tape contains Walsh’s frantic requests for assistance and a 911 operator’s efforts to calm her and collect information. Intermittently, Dominic is heard making faint cries and breathing sounds. The tape does not reveal any graphic details concerning the crime, and Mesa has not directed us to any private or confidential information on the tape that, if revealed, would subject Dominic or his family to retaliation, humiliation, public ridicule, or other substantial and irreparable harm if aired to the public. See Carlson, 141 Ariz. at 491, 687 P.2d at 1246 (recognizing that limits on disclosure are needed to prevent substantial and irreparable public or private harm in appropriate cases); Bowling, 37 S.W.3d at 788 (same); cf. United States Dep’t of State v. Wash. Post Co., 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982) (a purpose of the Freedom of Information Act is to prevent disclosure of files containing “intimate details” and “highly personal” information, which would constitute a “clearly unwarranted invasion” of privacy). Moreover, Dominic’s mother did not testify that she wished to shield the content of the 911 tape from public scrutiny. Indeed, she agreed that Mesa appropriately released the transcript containing the information imparted by Walsh. Rather, she objected to release of the tape because she and her family wished to avoid hearing it played.

¶25 The desire by Dominic’s family to avoid listening to the 911 tape is understandable. It is not, however, sufficient to overcome the strong presumption favoring production of the tape. Consequently, I would stop the analysis at this point without balancing the interests of public disclosure against that of Dominic and his family and considering whether the transcript adequately served the public’s inspection needs. See supra ¶10.

¶ 26 The public may inspect and copy governmental records under our open records law “ ‘without limitation as to the reason or reasons for which the inspection is undertaken.’ ” Bolm v. Custodian of Records of the Tucson Police Dep’t, 193 Ariz. 35, 39, ¶ 10, 969 P.2d 200, 204 (App.1998) (citation omitted). We should therefore resist the temptation to become “super editors” for the media and base a production decision on our view of how public information should be disseminated in our communities. Unless the legislature passes a law excepting all 911 tapes from production under the Public Records Act, governmental entities should not withhold production of such tapes solely because their broadcast would serve as painful reminders to victims and their families of distressing events. Because the tape in this case does not fall within a statutory or common law exception sufficient to overcome the strong presumption favoring public disclosure, I would affirm.