Expect some 911 recordings from the Orlando massacre to be released–but it’s not clear when

Photo via Orlando Police Department

Florida’s public records law is strong, and 911 recordings are usually released quickly. So why have two dozen media organizations been tied up in court for the past week in an effort to obtain 911 and other phone recordings related to the June 12 mass shooting at Pulse nightclub in Orlando?

The short answer is that the city has claimed the recordings are exempt from disclosure under state law—a claim the media outlets challenge in their lawsuit. But the added wrinkle is that the US Department of Justice is involved, and it removed the case to federal court on the eve of a state hearing, in what seems to me an attempt to delay any disclosure. After reviewing the court filings and relevant law, I’m sure the media will get at least some of the recordings they’ve requested—I just don’t know when.

To be clear, both local and federal officials have released information about the shooting and law enforcement’s response. This week, the city of Orlando released hundreds of pages of fire records, emails, text messages, and call logs, which were quickly mined by journalists. For their part, the Department of Justice and Federal Bureau of Investigation last week released a timeline of events and a partial transcript of one of the shooter’s 911 calls; after a wave of protests about the redactions, the DOJ released a complete transcript later that day.

But not yet released—and at issue in the lawsuit—are audio recordings of the shooter’s calls with police and other 911 calls, whose contents, the media argue in their complaint, lie “at the core of understanding exactly how events unfolded and will provide critical insight into the propriety of the government’s tactical response.”

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“Between a rock and a hard space”

After the shooting, a number of news organizations requested these recordings from the city. The city denied the requests, claiming that the recordings were exempt from disclosure under state law because they contained information that was part of an active criminal investigation.

When attorneys for the media outlets wrote a letter challenging the denials, the city repeated its claim and cited two more exemptions in state law—one covering personal information in emergency services records, and another covering recordings that depict the “killing of a person.” The city also said, in an oddly casual line, that some of the requested recordings “will no doubt be protected by federal law.”

After another exchange of letters, the news outlets filed a complaint in state court to compel disclosure. This is where, procedurally, the case gets complicated.

Soon after the media lawsuit was filed, the city filed a declaratory judgment action against only the AP, one of the plaintiffs in the media suit, asking the court to rule that the recordings were exempt. The judge consolidated the two cases, and then the city amended its action to add as a defendant the US Department of Justice, which quickly removed the case to federal court. That caused the state court to cancel a hearing Tuesday, the same day the city released the trove of emails, text messages, and call logs.

Apparently the DOJ and FBI, which is leading the investigation, don’t want the recordings released, for now. Attorney General Loretta Lynch said last week that she would be open to releasing them at some point—but not yet.

Jason Zimmerman, an attorney for the city of Orlando, has said the dispute is really between the FBI and the media. “The city … is caught between a rock and a hard space,” he told WMFE, the local public radio station. “So we amended the complaint to include the Department of Justice to give them the opportunity to be heard, and there’s a statute that if the Department of Justice is named in a suit, they can remove it to federal court.

Meanwhile, Carol Jean LoCicero, lead attorney for the news organizations, told me that there isn’t a “solid basis for federal jurisdiction” and that her clients plan to ask the federal court to return the case to state court. She also said that whatever court decides the case, Florida law will apply, because there are only state law issues involved, under the Florida Public Records Act.

I also contacted the US Attorney’s Office for the Middle District of Florida to ask whether state or federal law would apply if the federal court decided the case. Eventually, a public affairs officer told me simply that that would be a matter for the court to decide.

Some of the recordings should be disclosed

To my eye, all of the issues here are covered by Florida law. So with that in mind, what does state law say? The first exemption claimed by the city says that “active criminal investigative information [is] exempt,” while the second says that any record “obtained by a public agency … for the purpose of providing services in an emergency” should not be disclosed if it would reveal certain information, such as a name, address, or telephone number, about the person requesting the services or reporting an emergency.

The third exemption states in pertinent part: “A[n] audio recording that depicts or records the killing of a person is confidential and exempt from” disclosure. And it defines “killing of a person” as “all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.”

Those provisions may apply to portions of the requested recordings. But it’s simply not plausible that every moment of every recording contains active criminal investigative information or identifying information about a person who requested emergency services and/or used the 911 system.

Further, while some recordings may depict a death, the media complaint observes that a timeline released by the FBI mentions no shots fired during a three-hour window. Those claims about when shots were fired are being challenged today by new details in records released by the county sheriff. Still, it seems exceedingly likely that there are recordings, or portions of them, not covered by these exemptions, and state law requires that all non-exempt portions of records be disclosed.

Finally, the media outlets claim that if the court finds that some or all of the requested information is exempt, the media are entitled to it anyway, under a state provision allowing access to exempt records upon a showing of good cause. The media make their case by arguing that disclosure is necessary to evaluate how authorities responded to the shooting, that privacy intrusions would be minimal, and that similar information isn’t available in other public records—ultimately concluding that the good-cause provision “recognizes that the values of open government can at times override the government’s interest in keeping certain records confidential.”

The case that at least some of the recordings should be disclosed is strong, and I expect the court, whichever one it is, eventually to agree. With the case removed to federal court, though, it’s unclear when the first hearing will occur. We’ll be watching how this unfolds.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.