Editorial: Decision On Newtown 911 Tapes Requires A Delicate Balance

The Connecticut Law Tribune

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Currently before trial Judge Eliot Prescott is the issue of whether the Freedom of Information Commission's (FOIC) unanimous decision releasing the tapes of the 911 calls from the Sandy Hook Elementary School on Dec. 14, 2012 was proper. The Associated Press had sought the tapes in part to examine the police response to the massacre that sent officers from multiple agencies racing to the school.

As everyone sadly knows, that massacre left 20 first-graders and six educators dead. If the recordings are released, the AP says it would then review the content and determine what, if any of it would meet the news cooperative's standards for publication. Danbury State's Attorney Stephen Sedensky had argued that although 911 calls are typically released, they should not be released now because they are part of an ongoing criminal investigation.

The Freedom of Information Commission rejected that categorical argument concluding that the state had failed to establish that the calls would be used in a prospective law-enforcement action and that their release would damage that action. Sedensky also argued that the tapes were covered by state laws making child abuse records confidential and by the new law passed in response to the killings permitting police to withhold certain emergency audio transmissions. The FOIC similarly rejected those arguments, ruling that the child abuse statute protected records involving abuse by persons entrusted with the care or welfare of a child, and that the new law applied only to audio transmissions by first responders, not members of the public. Sedensky has appealed the FOIC's decision claiming that the tapes are protected and that matter is still pending.

In June, the legislature did enact legislation that prevented the public release of crime scene photos and video evidence depicting a homicide victim if those records constitute an "unwarranted invasion of personal privacy" of the victim or the victim's surviving family members. The new law also created a one-year moratorium on the release of certain portions of audiotape and other recordings in which the condition of a homicide victim is described. The legislation did not, however, include 911 emergency calls.

The Task Force on Victim Privacy and the Public's Right to Know has until Jan. 1, 2014 to offer recommendations to the general assembly to consider in the new legislative session. Some of the families of the victims have testified in support of a compromise that would allow members of the media to get a written transcription of the emergency calls. They maintain that the emotional impact the tapes would have on families and the fact that there is no doubt about who committed the crime support their argument that the tapes should not be released in their case. They also remain concerned that the tapes, along with other evidence likely to be released at a later time, would live forever on the Internet and be used by people with various political agendas.

The need to inform people about newsworthy items, to help ensure that 911 operators and emergency personnel are doing what they need to do, and the need to locate and identify a 911 caller are just a few of the more obvious arguments in support of release of 911 tapes generally. The need to protect the caller's identity, as in cases of sexual assault, or out of concern of retaliation, are just two examples of instances commonly referenced to favor protection.

There is, however, another argument that is not routinely articulated in support of release — audio and all — and that is because it makes us uncomfortable, because it makes us face the reality of what we are capable of. Sometimes we need to see the ugliness for exactly what it is. Sometimes people do need to hear those sounds. We needed to see the hundreds of pictures from the concentration camps, and we needed to see the atrocities of My Lai as well as carnage depicted by the photo of 9-year-old Kim Phuc running naked from an aerial napalm attack. These are things that were not sanitized by edits. All these things are offensive, not merely because they are graphic in nature but because of what they represent. But we needed to see them because we needed to know; we must never forget lest we repeat ourselves; we must combat claims of propaganda; we must own up to atrocities of war and evaluate whether the ends justify the means, etc.

In the case of 911 tapes, calls not by first responders but by victims, the question remains: does anyone really need to hear them? We lawyers can all imagine how 911 calls can be grist for the cross-examination mill when the identified caller takes the stand. This, as well as the above referenced considerations, demonstrates why there are no bright-line rules. Victims of the Sandy Hook Elementary School massacre told the Connecticut task force that they don't want the 911 tapes released, saying no one needs to hear the sounds from that day. They contend that no one needs to hear and thus bear witness to the brutality of the ambient sounds of the shootings or the cries of the victims.

It would be better no doubt to have this debate in a purely academic posture and not before the Task Force on Victim Privacy and the Public's Right to Know, formed precisely in response to the Newtown massacres. These are complicated issues for which there is no easy answer. The nature of the legal system, our political system and the crafting of public policy require a balance of conflicting needs and points of view. As part of the dialogue, uncomfortable must be considered. We should not shy away from identifying and debating all of them. It's possible that we may even need to air things that are painful in order to conclude that going forward we do not need to see or hear the horrors. Open and honest debate, often painful, achieves balanced solutions that unfortunately leave many unsatisfied.

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