In Arkansas, who has the authority to release 911 recordings: the county emergency director or each individual public safety answering point?

Plain-English summary

Senator Uvalde Lindsey asked AG Dustin McDaniel about a question that arose in Washington County: the county has five public safety answering points (PSAPs), including one at the sheriff's office. The county also has a Director of Emergency and 911 Services who serves under the County Judge. The question: must every FOIA request for 911 recordings go through that Director, or can each individual PSAP release its own recordings? The AG concluded that under the FOIA's "administrative control" definition of custodian and the structure of the 911 Act (A.C.A. § 12-10-301 et seq.), the head of each operating agency (or his or her designee) is the custodian of that center's 911 recordings. The County Emergency Director, who is appointed under the separate Emergency Services Act (A.C.A. § 12-75-101 et seq.), has no statutory authority over 911 operations and therefore is not the proper custodian. Agency heads can voluntarily agree to coordinate FOIA responses through the Director's office, but no state law requires it.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the AG concluded

The 911 Act regulates operations but not records release.
A.C.A. §§ 12-10-301 to 324 (the Arkansas Public Safety Communications Act of 1985) establishes 911 PSAPs and operating agencies and requires that 911 calls be recorded and retained for at least 31 days (A.C.A. § 12-10-310). The 911 Act does not, however, address the public release of 911 recordings. That is governed by the FOIA.

Under the FOIA, the operating agency head is the custodian.
The FOIA defines "custodian" as "the person having administrative control" of the record. The Arkansas Supreme Court in Fox v. Perroni, 358 Ark. 251 (2004), said that means "the public official or employee who is charged with the responsibility to manage or execute the public affairs or conduct of their office, department or agency." Because each operating agency is responsible for running its 911 Center, and each 911 Center is required by statute to develop and maintain the recording system, the head of the operating agency is the custodian.

The County Emergency Director isn't the right person.
The Washington County Director of Emergency and 911 Services serves under the County Judge as an emergency management coordinator under the Arkansas Emergency Services Act of 1973. The two acts cover different subjects: the Emergency Services Act addresses disasters and major emergencies; the 911 Act addresses individual emergency calls. The Director's coordinator role does not give him operational or supervisory authority over the county's 911 operating agencies. So the Director is not the custodian.

The County Judge has some oversight but not custodial authority.
A.C.A. § 12-10-306(a)(4) makes 911 Center staff subject to the County Judge's authority "through their agency." That oversight may include enforcing the recording requirement, but it does not transfer day-to-day administrative control over the recordings themselves.

Voluntary coordination is fine.
The AG saw no obstacle to each operating agency voluntarily agreeing to route FOIA requests through the Director's office. But any such coordination cannot "constrict rights granted by the FOIA" — for example, by imposing a "three-day policy" or other procedural rules that exceed what the FOIA allows.

Common questions

Q: What is a PSAP?
A Public Safety Answering Point: the location where 911 calls are initially answered. A.C.A. § 12-10-303 defines it as "the location at which 911 calls are initially answered."

Q: What is the difference between a "PSAP" and a "911 Center"?
The 911 Center is the broader operation, including the PSAP plus dispatch and other functions. Per A.C.A. § 12-10-303(13), a 911 public safety communications center is operated 24/7 by an operating agency, includes the PSAP, and dispatches one or more public safety agencies.

Q: Who counts as an "operating agency"?
Per A.C.A. § 12-10-303(16): offices of emergency services, fire departments, and law enforcement agencies of the political subdivision. The county sheriff specifically must concur if he or she is designated as the operating agency.

Q: What is the minimum statutory retention period for 911 recordings?
31 days. The recording must include the date and time of the call, the nature of the problem, and the action taken.

Q: Can a prosecuting attorney get 911 recordings by subpoena?
Yes. A.C.A. § 12-10-306 requires the 911 center staff or supervisor to release "any information in [their] custody or control" to a prosecuting attorney in compliance with a subpoena. That is separate from the FOIA pathway.

Q: If I'm a journalist, who do I send my FOIA request to?
The head of the operating agency that runs the PSAP that handled the call (or that agency's designated custodian). In Washington County's example, that meant the head of any of the five operating agencies — not the County Emergency Director.

Background and statutory framework

The opinion sits at the intersection of three Arkansas statutory regimes: (1) the FOIA, A.C.A. § 25-19-105, which governs public access to records; (2) the 911 Act, A.C.A. § 12-10-301 et seq., which structures emergency communications and identifies the operating agencies; and (3) the Emergency Services Act, A.C.A. § 12-75-101 et seq., which gives the County Judge a separate emergency management coordinator function. Because each statute creates different organizational roles, the question of who controls 911 recordings has to be answered by tracing the chain of operational responsibility under the 911 Act and then asking who is the "custodian" under the FOIA's definition.

Fox v. Perroni's gloss on "administrative control" (the official "charged with the responsibility to manage or execute the public affairs or conduct of their office, department or agency") is what made the analysis decisive: the operating agency head has that managerial responsibility for the 911 Center; the Emergency Director does not.

Citations

Statutes and constitution

• A.C.A. §§ 12-10-301 to 324 (Arkansas Public Safety Communications Act of 1985)
• A.C.A. § 12-10-302(e)(2) (chief executive designates operating agency)
• A.C.A. § 12-10-303(13) (911 public safety communications center defined)
• A.C.A. § 12-10-303(16) (operating agency defined)
• A.C.A. § 12-10-304 (operating agency designation)
• A.C.A. § 12-10-306 (prosecuting attorney access; county judge authority)
• A.C.A. § 12-10-310 (911 recording requirement; minimum 31-day retention)
• A.C.A. § 12-10-323(a)(1)(F) (use of 911 revenues)
• A.C.A. § 25-19-103(1)(A) (FOIA definition of custodian)
• A.C.A. § 25-19-105(a)(2)(A) (right to inspect public records)
• A.C.A. § 12-75-101 et seq. (Arkansas Emergency Services Act of 1973)
• A.C.A. § 12-75-118 (local emergency management offices and coordinator)
• Ark. Const. amend. 55, § 3 (county judge as chief executive)

Cases

• Fox v. Perroni, 358 Ark. 251, 188 S.W.2d 881 (2004) (Arkansas Supreme Court)

Prior AG opinions referenced

• Op. Att'y Gen. Nos. 2003-043, 2000-321, 95-018, 94-225, 94-100, 93-126, 90-236, 89-377

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-147

March 10, 2014

The Honorable Uvalde Lindsey
State Senator
2257 Gentle Oaks Lane
Fayetteville, Arkansas 72703

Dear Senator Lindsey:

This is in response to your request for my opinion on a question arising from the following reported background facts:

Washington County implemented 911 services, pursuant to A.C.A. § 12-10-301 et seq., approximately twenty years ago. A question has arisen as to who has the authority to release 911 recordings. There are five PSAP (public safety answering points) in Washington County, one of which is located at the Sheriff's office. It appears all of these PSAPs also fall within the definition of "911 public safety communication centers."

Against this backdrop, you ask:

Must all requests for release of 911 recordings be authorized by the Director of Emergency and 911 Services, [who is] an employee of the County Judge, or does each individual PSAP, particularly the Sheriff, have the authority to release such information?

RESPONSE

In my opinion, the release of 911 recordings is within the authority of the head of each agency (or his or her designee) that operates a 911 public safety communications center in Washington County. I believe each such agency head could agree to coordinate requests for 911 recordings through the Washington County's Director of Emergency and 911 Services (assuming compliance is otherwise had with the Arkansas Freedom of Information Act). But in my opinion, there is no basis in state law for requiring such a procedure.

DISCUSSION

The Arkansas Public Safety Communications Act of 1985 ("911 Act" or "the Act," A.C.A. §§ 12-10-301 — 324) does not address the matter of the release of 911 recordings. Generally, however, such recordings are subject to inspection and copying under the Arkansas Freedom of Information Act (FOIA). The FOIA states that "[a] citizen may make a request to the custodian to inspect, copy, or receive copies of public records." The "custodian" is defined as "the person having administrative control of that record."

For the reasons explained below, it is my opinion that the head of the agency that operates a 911 public safety communications center (the "operating agency"), or his or her designee, is the person having administrative control of 911 recordings for purposes of being the custodian of those records under the FOIA. Some discussion of the 911 Act is necessary to fully explain this response.

This Act provides for the establishment and operation of emergency dispatching systems by the state's political subdivisions. The chief executive of the political subdivision is authorized to "direct establishment and operation of 911 public safety communications centers," and "designate the location of the center and agency which is to operate the center." This latter agency is called the "operating agency," which is defined as "the public safety agency authorized and designated by the chief executive of the political subdivision to operate a 911 public safety communications center." "Operating agencies" are limited to "offices of emergency services, fire departments, and law enforcement agencies of the political subdivisions."

The Act defines "911 public safety communications center" (hereinafter "911 Center") as follows:

"911 public safety communications center" means the communications center operated on a twenty-four (24) hour basis by one (1) of the operating agencies defined by this subchapter and as designated by the chief executive of the political subdivision which includes the [PSAP] and dispatches one (1) or more public safety agencies.

It is clear from this definition that each 911 Center includes the PSAP, the latter being the "location at which 911 calls are initially answered." I assume this is why you report that all the PSAPs in Washington County also fall within the definition of 911 public safety communication centers. The 911 Act speaks in terms of the operation of the 911 Centers, but those operations necessarily include the PSAPs.

With regard to your specific question concerning 911 recordings, the 911 Act requires that 911 calls received at each PSAP must be recorded and retained for at least thirty-one days. The record must include the date and time of the call, the nature of the problem, and the action taken. The Act does not address the public release of 911 recordings. That is a matter governed by the FOIA, in my opinion. Accordingly, the answer to the question you have posed depends upon which officer or employee has "administrative control" sufficient to render that person a "custodian" for purposes of the FOIA. The FOIA does not define the term "administrative control." However, the Arkansas Supreme Court has approved the following characterization of the term: "...one who has administrative control is that public official or employee who is charged with the responsibility to manage or execute the public affairs or conduct of their office, department or agency."

In my opinion, the relevant agency for purposes of the FOIA is the operating agency. That agency, by definition under the 911 Act, is responsible for operating the 911 Center. And the 911 Center, which includes the PSAP where calls are initially answered, is responsible for ensuring that the 911 calls are properly recorded and retained. Responsibility for those calls is thus squarely within the operating agency's purview. It reasonably follows that the person responsible for managing the operating agency (either the head of the agency or his or her designee) is the person having administrative control of those recordings, and hence the custodian for purposes of the FOIA.

In response to your specific question, I find no basis in either the 911 Act or the FOIA for requiring that all requests for the release of 911 recordings be authorized by Washington County's Director of Emergency and 911 Services (hereinafter "Director"). I assume the Director was appointed by the County Judge as the "emergency management coordinator," pursuant to the Arkansas Emergency Services Act of 1973 (A.C.A. § 12-75-101 et seq.). In that position, he acts for and on behalf of the County Judge "to manage and coordinate the functions, duties, and activities of the established local office of emergency management." The latter office performs or coordinates functions as necessary for response to, and recovery from, disasters and major emergency occurrences, and for the operation of public safety information networks.

The contingencies addressed by the Emergency Services Act are plainly distinct from the emergency aid that is the focus of the 911 Act. The Director consequently would appear to have no supervisory or operational authority over Washington County's 911 operating agencies by virtue of his position as coordinator under the Emergency Services Act.

I have also considered whether the Director's authorization for the release of 911 recordings might be required by virtue of some assignment of authority from the County Judge. The Director serves under the County Judge's "direction and control," and it appears that the County Judge has some degree of authority over Washington County's 911 Centers. The precise nature and extent of that authority is not specified, but presumably it includes ensuring that the 911 system is properly established and operating, and that any specific requirements of the Act are met. This would seemingly include the requirement that 911 calls be recorded and retained. But the County Judge is not charged with primary duties or responsibility in that regard. Rather, it clearly falls to the 911 Center — and hence the operating agency — to develop and maintain a system for those recordings. I believe it reasonably follows that the administrator of the 911 Center has administrative control of the 911 recordings for purposes of the FOIA, and that neither the County Judge nor his appointee has authority over the recordings' release in response to FOIA requests.

While I thus conclude that the release of 911 recordings is within the authority of the head of the operating agency, or his or her designee, I will note that I see no obstacle to each agency head agreeing to coordinate requests for 911 recordings through the Washington County's Director of Emergency and 911 Services. One important caveat attends this observation, however. Any such agreement or procedure in this respect may not in any fashion constrict rights granted by the FOIA.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh