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Forum editorial: 911 tapes are public records

Fargo police should tread carefully before making a scapegoat of an employee who released a 911 audio tape to a Forum reporter. The employee, who is not a police officer, responded to a request from the reporter and, according to the director of the dispatch center, did not violate policy and will not be punished. That’s the right instinct in this matter, even as the Police Department conducts an internal investigation in order to assign blame.

The dustup over the tape involves an open homicide investigation. There has been no indication, as yet, that the release has significantly affected the case.

Changes in the way police and dispatch centers handle 911 tapes and transcripts were approved a few years ago by the North Dakota Legislature. Lawmakers acted on recommendations of an attorney general’s task force (The Forum was a participant) that was charged with adjusting open records law to protect identities of people making 911 calls, and, in part, to avoid sensationalizing the content of calls by broadcasters. It was a reasonable compromise between open records and privacy.

However, 911 tapes and transcripts still are public records. The law allows holders of the records discretion regarding when and how much to release to the public. In most cases, police and other agencies decline to release tapes, but sometimes will provide a transcript. The problem is that police can withhold even a transcript if they say an investigation is ongoing. An “investigation” can remain open for as long as police say it’s open, which means a transcript might never be released.

Furthermore, since the recording might not be available, a police-prepared transcript could be redacted or otherwise altered, and the public and media would have no way of knowing.

The attorney for the North Dakota Newspaper Association, Jack McDonald, knows more about the evolution, application and interpretation of open records/meetings laws than anyone in the state, with the possible exception of Attorney General Wayne Stenehjem, who has been a champion for open government all his public life. McDonald interprets the law with regard to 911 calls as allowing the public to listen to any recordings and receive a transcript. He disputes police claims that the calls are investigatory documents.

“You can’t take what’s a public record,” he says, “and make it confidential … because you’re using it for an investigation.”

That’s the right take on this matter. And it’s one very good reason the employee who released a tape to a reporter should not be made a scapegoat.

Forum editorials represent the opinion of Forum management and the newspaper’s Editorial Board.

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