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Monday, December 19, 2022

911 Calls Not Automatically Exempt But Public Body Not Required to Create Transcript of 911 Call for FOIA

In August 2019, the Edgar County Watchdogs (ECW) filed two separate FOIA requests with a County Sheriff’s Office seeking 911 call records and other records regarding the Office's  response to several incidents at a local park. The Sheriff's Office denied the 911 records, based on FOIA exemption 7(1)(d)(iv) that the recordings contained confidential statements made by individuals filing complaints with or providing information to law enforcement. ECW then sued the Sherriff’s Office alleging it had improperly and willfully and intentionally denied ECW's FOIA requests and failed to conduct an adequate search.

After the circuit court conducted an "in camera" inspection of the recordings, the court concluded that the "tonal qualities" of the victim statements in the 911 recordings were exempt because disclosure would unavoidably reveal victim identities. However, the court ordered the Sheriff’s Office to provide ECW with unredacted versions of the victim statements contained in the written police reports corresponding to the 911 calls and to provide ECW with either a "masked" version of the calls or a transcript of the calls. 

On appeal, the Sherriff’s Office argued that the circuit court erred when it found that the 911 recordings were not exempt, claiming that (1) 911 recordings (in any form) should be exempt from disclosure because the content of the call reveals the caller’s identity or alternatively (2) that masking the audio or creating a transcript of the recording constitutes the creation of a new record, which the Sherriff’s Office is not required to do under FOIA. 

In Edgar County Watchdogs v. Will County Sherriff’s Office, the Appellate Court rejected the Sherriff’s Office argument that all 911 recordings should be automatically exempt. Instead, the Appellate Court held that only those portions of calls that would unavoidably disclose the identity of the person who filed the complaint or provided the information to law enforcement would be exempt under FOIA exemption 7(1)(d)(iv).

The Appellate Court also rejected the Sherriff’s Office argument that providing ECW with an altered recording that would disguise the caller’s voice required them to create a new record. The Court determined that using computer software to mask caller voices in the responsive 911 recordings is similar to deleting exempt information from a record or scrambling a record, neither of which constitute the creation of a new record. However, the Appellate Court agreed with the Sheriff's Office that it should not be required to prepare and produce a transcript of the calls, since that would require the Sheriff's Office to create a new record that was not already maintained by that office.

The opinion contains two separate opinions concurring in part and dissenting in part from the majority opinion that are interesting to read. One of these opinions would require the Sheriff's Office to provide a transcript and the other opinion would find that the calls were exempt from FOIA.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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