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Tuesday, August 15, 2017

PAC Finds 9-1-1 Tape Collected in an Active Criminal Investigation is Not Exempt

The Public Access Counselor (PAC) just issued its 11th binding opinion for 2017. In PAC Op. 17-011, the PAC found a public body in violation of FOIA for denying a request made by a reporter for a 9-1-1 tape involving the death of a child. 

The public body had denied the request based on a number of FOIA exemptions, including that release of the tape would impede an active investigation into the child's death under section 7(d)(vii). That exemption exempts from release records compiled by a law enforcement agency that, if disclosed, would obstruct an ongoing criminal investigation. Although the public body provided a detailed explanation as to why the release of the 9-1-1 call that was made by a person of interest in the criminal investigation could impede that investigation, the PAC rejected that argument, finding that the public body had failed to provide clear and convincing evidence that the tape should be exempt. Interestingly, the PAC made its own determination that the tape was a "limited" part of the criminal investigation.

The PAC also rejected the public body's use of the "private information" exemption. The public body had argued that the audio recording qualified as "biometric information" that is exempt under section 7(1)(b) of FOIA. The PAC rejected that argument, finding that an audio recording of a voice does not constitute a "voiceprint" that would qualify as biometric information since "voiceprint" is defined under state statute as an analysis or measurement of a person's voice.

In my opinion, the PAC's conclusion on the use of the biometric exemption appears consistent with the definition of biometric information, but the PAC may have gone too far in deciding, on a public body's behalf, what records collected as part of a criminal investigation could, if released, obstruct an active criminal investigation. 

Post Authored by Julie Tappendorf


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