1 of 2 DOCUMENTS
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TENNESSEE
Opinion No. 99-022
1999 Tenn. AG LEXIS 29
February 9, 1999
SYLLABUS:
[*1]
Confidentiality of 911 Tapes Being Used in Pending Criminal Investigations.
REQUESTBY:
BILL CLABOUGH
State Senator, 8th District
309 War Memorial Building
Nashville, TN 37243-0208
QUESTION:
Can 911 tape recordings of telephone communications and radio transmissions be withheld from public disclosure
when a criminal investigation involving such recordings is being conducted? If so, does this include withholding the
recordings from defense attorneys, media and persons directly involved in or the subject of the investigation.
OPINION
A 911 tape made or received by a state or local government agency in connection with the transaction of its official
business would be a public record open for inspection pursuant to Tenn. Code Ann. § 10-7-503 and copying pursuant to
Tenn. Code Ann. § 10-7-506, "unless otherwise provided by state law." Tennessee court rules of procedure, which have
the force and effect of state law, as well as applicable statutes or common law, may provide an exception to the Public
Records Act. The availability of the tape must, therefore, be determined on a case-by-case basis.
OPINIONBY:
PAUL G. SUMMERS, Attorney General and Reporter; MICHAEL E. MOORE, Solicitor General; PETER M.
COUGHI AN, [*2] Assistant Attorney General
OPINION:
ANALYSIS
Section 10-7-503 of Tennessee Code Annotated provides that "all state, county and municipal records . . . shall at all
times, during business hours, be open for personal inspection by any citizen of Tennessee . . . unless otherwise provided
by state law." Tenn. Code Ann. § 10-7-503(a). The proper test in determining whether material is a public record is
whether it was made or received pursuant to law or ordinance or in connection with the transaction of official business
by any governmental agency. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991).
This office has previously opined that, under Griffin, a 911 tape made or received by a state or local government
agency in connection with the transaction of its official business would be a public record open for inspection pursuant
Page 2
1999 Tenn. AG LEXIS 29, *
to Tenn. Code Ann. § 10-7-503 and copying pursuant to Tenn. Code Ann. § 10-7-506, unless otherwise provided by
state law. n1 Op. Tenn. Atty. Gen. 93-65 (November 29, 1993)(copy attached); see also Memphis Publ. Co. v. City of
Memphis, 871 S.W.2d 861 (Tenn. 1994)(enforcing a broad interpretation [*3] of the term "records").
n1 The definition of a "public record" expressly includes sound recordings such as a 911 tape. Tenn. Code
Ann. § 10-7-301(6).
In Tenn. Code Ann. § 10-7-504, the General Assembly has provided exceptions to the public availability of
records. No exception for "911 tapes" per se appears in this statute. The exceptions set forth in Tenn. Code Ann. § 10-7504 are not exclusive, however, and statutes, rules and the common law dealing with the subject matter in question also
must be examined when determining whether a 911 tape is available as a public record.
In Appman v. Worthington, 746 S.W.2d 165, 166 (Tenn. 1987), for example, the Tennessee Supreme Court held that
the Tennessee Rules of Criminal Procedure have the force and effect of state law. See also Ballard v. Herzke, 924
S.W.2d 652, 662 (Tenn. 1996) (applying same holding to the rules of civil procedure). The Court in Appman held that
documents in an active criminal case [*4] which would not be subject to discovery and inspection under Tennessee
Rule of Criminal Procedure 16 are not subject to inspection under the public records act. 746 S.W.2d at 166. The Court
reasoned that the protection in Rule 16 of certain material from discovery constituted an exception to the Public Records
Act. Id. Thus, if the 911 tape is part of an active criminal prosecution, the Tennessee rules of discovery may impact
whether it can be disclosed.
In addition to Tennessee court rules, state statutes may also prevent disclosure under the public records act. For
example, if the tape is part of an investigative record of the Tennessee Bureau of Investigation, Tenn. Code Ann. § 107-504(a)(2) requires that the "information in such records shall be disclosed to the public only in compliance with a
subpoena or an order of a court of record."
Finally, the common law may affect availability of a 911 tape. For example, the common law recognizes a privilege
for investigative records relating to pending criminal prosecutions. See, e.g., Jennings v. Johnson, 480 F.Supp. 47 (E.D.
Tenn. 1979) (common law prevents discovery of TBI [*5] records in an open criminal case).
Therefore, whether a defendant, the public or the media must be given access to a 911 tape which is part of a
pending criminal investigation would hinge upon whether the record was excepted from public disclosure under rule,
statute or common law. That question can only be answered on a case-by-case basis.
OFFICE OF THE ATTORNEY GENERAL OF TENNESSEE
93-65
1993 Tenn. AG LEXIS 67
November 29, 1993
Status of "911 tapes" under Public Records Act
QUESTION
Whether "911 tapes," which are not part of an ongoing police investigation, are open to the public.
OPINIONS
It is the opinion of this Office that, generally, a 911 tape made or received by a state or local governmental agency
in connection with the transaction of its official business would be a public record open for inspection in accordance
with T.C.A. § 10-7-503. We have found no state law providing otherwise for "911 tapes" per se. Because the content;
of a 911 tape may vary, however, along with the facts and circumstances surrounding a particular tape, each request to
inspect a 911 tape should be examined on a case-by-case basis.
ANALYSIS
Page 3
1999 Tenn. AG LEXIS 29, *
Section [*6] 10-7-503 of Tennessee Code Annotated provides that "all state, county and municipal records . . . shall
at all times, during business hours, be open for personal inspect on by any citizen of Tennessee . . . unless otherwise
provided by state law." T.C.A. § 10-7-503(a) (Supp. 1993). The proper test in determining whether material is a public
record Is whether it was made or received pursuant to law or ordinance or in connection with the transaction of official
business by any governmental agency. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991). Application of
this test requires an examination of the circumstances. Id.
The Emergency Communications District Law is found at T.C.A. § § 7-86-101, et seq. The General Assembly has
declared the number 911 as the primary emergency telephone number in Tennessee. T.C.A. § 7-86-102(a) (Supp.
1993). A county or municipal legislative body may create an emergency communications district by resolution or by
ordinance, and establishment of the district is subject to a vote "for" or "against" by voters within the boundaries of the
proposed district. T.C.A. § 7-86-104 (1992). A district created under [*7] the law is deemed to be a municipality.
T.C.A. § 7-86-106 (1992). The powers of an emergency communications district are vested in its Board of Directors.
Id. The Board is responsible for creating an emergency communications service that has the capability of utilizing at
least one of four methods in response to emergency calls. T.C.A. § 7-86-107 (1992). These methods and their statutory
definitions are as follows:
'Direct dispatch method' means a 911 service in which a public service answering point, upon receipt of a telephone
request for emergency services, provides for the dispatch of appropriate emergency service units and a decision as to the
proper action to be taken;
T.C.A. § 7-86-103(2) (Supp. 1993); T.C.A. § 7-86-107(a)(1).
'Referral method" means a 911 service in which a public safety answering point, upon the receipt of a telephone
request for emergency services, provides the requesting party with a telephone number of appropriate public safety
agencies or other providers of emergency services;
T.C.A. § 7-86-103(5); T.C.A. § 7-86-107(a)(2).
'Relay method' means a 911 service in which a public safety answering point, upon receipt of a telephone request
for emergency [*8] services, notes the pertinent information from the caller and relays such information to the
appropriate public safety agency or other agencies or other providers of emergency service for dispatch of an emergency
unit;
T.C.A. § 7-86-103(6); T.C.A. § 7-86-107(a)(3).
'Transfer method' means a 911 service in which a public safety answering point, upon receipt of a telephone request
for emergency services, directly transfers such request to an appropriate public safety agency or other provider of
emergency services;
T.C.A. § 7-86-103(10); T.C.A. § 7-86-107(a)(4).
The Emergency Communications District Law does not use the term "911 tape" that is used in the opinion request.
From the statutes above, we assume that a "911 tape" is an audio tape recording of a telephone request for emergency
services. We further assume for purposes of this opinion that the tape recording is lawfully made by a state or local
governmental agency in connection with the transaction of its official business. It would appear from the statutes, for
example, that the governmental agency making the recording might be serving as a "public service answering point,"
"public safety agency," or "provider of emergency services" [*9] as those terms are used in T.C.A. § 7-86-103. See
generally, Op. Tenn.Atty.Gen. U91-154 (December 4, 1991) (opining on the legality of a district's recording 911
telephone calls). In our opinion, a 911 tape made in accordance with those assumptions would be a public record open
for inspection pursuant to T.C.A. § 10-7-503 and copying pursuant to T.C.A. § 10-7-506, unless otherwise provided by
state law. The definition of a "public record" expressly includes sound recordings. T.C.A. § 10-7-301(6) (1992).
The General Assembly has provided exceptions to section -503's rule of openness in T.C.A. § 10-7-504 (1992). No
exception for "911 tapes" per se appears in this statute. The exceptions set forth in § 10-7-504 are not exclusive, and
statute; dealing with the subject matter in question also must be examined when analyzing a question under the Public
Records Act. Thus, we also have examined the Emergency Communications District Law, and no confidentiality is
provided by these statute for a telephone request to number 911 for emergency service.
As your opinion request contemplates, the answer to whether a 911 tape is open for public inspection could vary;
however depending upon [*10] the facts and circumstances of the particular tape in question. In Appman v.
Page 4
1999 Tenn. AG LEXIS 29, *
Worthington, 746 S.W.2d 165 (Tenn. 1987), the Court held that records of a certain investigation were not available for
inspection under the Public Records Act because the records were relevant to a pending criminal prosecution. Also, for
example, the General Assembly, has provided that "all records concerning reports of child sexual abuse" shall be
confidential in order to protect the child and persons responsible for the child's welfare, and such records may only be
disclosed as authorized by statute. T.C.A. § 37-1-612 (1991). It is conceivable that a request for emergency services to
number 911 could also constitute a record concerning a report of child sexual abuse, depending upon the contents of the
call. Similarly, some other provision of state law might provide otherwise than for public inspection of a particular 911
tape, depending upon the contents of the call, and the facts and circumstances surrounding a particular tape that has
been requested.
In summary, it appears generally that a 911 tape made or received by a state or local governmental agency in
connection with [*11] the transaction of its official business would be a public record open for inspection in accordance
with T.C.A. § 10-7-503. We have found no state law providing otherwise for "911 tapes" per se. Because the contents
of a 911 tape may vary, however, along with the facts and circumstances surrounding a particular tape, each request to
inspect a 911 tape should be examined on a case-by-case basis.
Requested by: The Honorable Keith Westmoreland, State Representative, Room 214, War Memorial Building,
Nashville, TN 37243-0102
CHARLES W. BURSON, Attorney General and Reporter (ANDY D. BENNETT, Associate Chief Deputy
Attorney General; GINA J. BARHAM, Deputy Attorney General)
2 of 2 DOCUMENTS
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TENNESSEE
93-65
1993 Tenn. AG LEXIS 67
November 29, 1993
SYLLABUS:
[*1]
Status of "911 tapes" under Public Records Act
REQUESTBY:
CHARLES W. BURSON, Attorney General and Reporter (ANDY D. BENNETT, Associate Chief Deputy
Attorney General; GINA J. BARHAM, Deputy Attorney General)
OPINION:
QUESTION
Whether "911 tapes," which are not part of an ongoing police investigation, are open to the public.
OPINIONS
It is the opinion of this Office that, generally, a 911 tape made or received by a state or local governmental agency
in connection with the transaction of its official business would be a public record open for inspection in accordance
with T.C.A. § 10-7-503. We have found no state law providing otherwise for "911 tapes" per se. Because the content;
of a 911 tape may vary, however, along with the facts and circumstances surrounding a particular tape, each request to
inspect a 911 tape should be examined on a case-by-case basis.
ANALYSIS
Section 10-7-503 of Tennessee Code Annotated provides that "[a]ll state, county and municipal records . . . shall at
all times, during business hours, be open for personal inspect on by any citizen of Tennessee . . . unless otherwise
provided by state law." T.C.A. § 10-7-503(a) (Supp. 1993). The proper test in determining [*2] whether material is a
public record Is whether it was made or received pursuant to law or ordinance or in connection with the transaction of
official business by any governmental agency. Griffin v. City of Knoxville, 821 S.W.2d 921, 924 (Tenn. 1991).
Application of this test requires an examination of the circumstances. Id.
The Emergency Communications District Law is found at T.C.A. § § 7-86-101, et seq. The General Assembly has
declared the number 911 as the primary emergency telephone number in Tennessee. T.C.A. § 7-86-102(a) (Supp.
1993). A county or municipal legislative body may create an emergency communications district by resolution or by
ordinance, and establishment of the district is subject to a vote "for" or "against" by voters within the boundaries of the
proposed district. T.C.A. § 7-86-104 (1992). A district created under the law is deemed to be a municipality. T.C.A §
7-86-106 (1992). The powers of an emergency communications district are vested in its Board of Directors. Id. The
Board is responsible for creating an emergency communications service that has the capability of utilizing at least one
of four methods in response to emergency [*3] calls. T.C.A. § 7-86-107 (1992). These methods and their statutory
definitions are as follows:
Page 6
1993 Tenn. AG LEXIS 67, *
'Direct dispatch method' means a 911 service in which a public service answering point, upon receipt of a telephone
request for emergency services, provides for the dispatch of appropriate emergency service units and a decision as to the
proper action to be taken;
T.C.A.§ 7-86-103(2) (Supp. 1993); T.C.A § 7-86-107(a)(1).
'Referral method" means a 911 service in which a public safety answering point, upon the receipt of a telephone
request for emergency services, provides the requesting party with a telephone number of appropriate public safety
agencies or other providers of emergency services;
T.C.A. § 7-86-103(5); T.C.A. § 7-86-107(a)(2).
'Relay method' means a 911 service in which a public safety answering point, upon receipt of a telephone request
for emergency services, notes the pertinent information from the caller and relays such information to the appropriate
public safety agency or other agencies or other providers of emergency service for dispatch of an emergency unit;
T.C.A. § 7-86-103(6); T.C.A. § 7-86-107(a)(3).
'Transfer method' means a 911 service in which a public [*4] safety answering point, upon receipt of a telephone
request for emergency services, directly transfers such request to an appropriate public safety agency or other provider
of emergency services;
T.C.A. § 7-86-103(10); T.C.A. § 7-86-107(a)(4).
The Emergency Communications District Law does not use the term "911 tape" that is used in the opinion request.
From the statutes above, we assume that a "911 tape" is an audio tape recording of a telephone request for emergency
services. We further assume for purposes of this opinion that the tape recording is lawfully made by a state or local
governmental agency in connection with the transaction of its official business. It would appear from the statutes, for
example, that the governmental agency making the recording might be serving as a "public service answering point,"
"public safety agency," or "provider of emergency services" as those terms are used in T.C.A. § 7-86-103. See
generally, Op.Tenn.Atty.Gen. U91-154 (December 4, 1991) (opining on the legality of a district's recording 911
telephone calls). In our opinion, a 911 tape made in accordance with those assumptions would be a public record open
for inspection pursuant [*5] to T.C.A. § 10-7-503 and copying pursuant to T.C.A. § 10-7-506, unless otherwise
provided by state law. The definition of a "public record" expressly includes sound recordings. T.C.A. § 10-7-301(6)
(1992).
The General Assembly has provided exceptions to section -503's rule of openness in T.C.A. § 10-7-504 (1992). No
exception for "911 tapes" per se appears in this statute. The exceptions set forth in § 10-7-504 are not exclusive, and
statute; dealing with the subject matter in question also must be examined when analyzing a question under the Public
Records Act. Thus, we also have examined the Emergency Communications District Law, and no confidentiality is
provided by these statute for a telephone request to number 911 for emergency service.
As your opinion request contemplates, the answer to whether a 911 tape is open for public inspection could vary;
however depending upon the facts and circumstances of the particular tape in question. In Appman v. Worthington, 746
S.W.2d 165 (Tenn. 1987), the Court held that records of a certain investigation were not available for inspection under
the Public Records Act because the records were relevant to a pending criminal prosecution. [*6] Also, for example,
the General Assembly, has provided that "all records concerning reports of child sexual abuse" shall be confidential in
order to protect the child and persons responsible for the child's welfare, and such records may only be disclosed as
authorized by statute. T.C.A. § 37-1-612 (1991). It is conceivable that a request for emergency services to number 911
could also constitute a record concerning a report of child sexual abuse, depending upon the contents of the call.
Similarly, some other provision of state law might provide otherwise than for public inspection of a particular 911 tape,
depending upon the contents of the call, and the facts and circumstances surrounding a particular tape that has been
requested.
In summary, it appears generally that a 911 tape made or received by a state or local governmental agency in
connection with the transaction of its official business would be a public record open for inspection in accordance with
T.C.A. § 10-7-503. We have found no state law providing otherwise for "911 tapes" per se. Because the contents of a
911 tape may vary, however, along with the facts and circumstances surrounding a particular tape, each [*7] request to
inspect a 911 tape should be examined on a case-by-case basis.
Page 7
1993 Tenn. AG LEXIS 67, *
Requested by: The Honorable Keith Westmoreland, State Representative, Room 214, War Memorial Building,
Nashville, TN 37243-0102