The Honorable Paul R. Bosson Prosecuting Attorney Eighteenth Judicial District, East 501 Ouachita Avenue Hot Springs, AR 71901

Dear Mr. Bosson:

This is in response to your request for an opinion on whether 911 tapes are subject to the Arkansas Freedom of Information Act ("FOIA") (A.C.A. §§ 25-19-101 to -107). You state that there are two separate scenarios regarding this question, one where there is an aircraft crash and one where the 911 tapes are part of a criminal investigation.

Please note that I have enclosed copies of several opinions previously issued by this office which address various issues involving 911 recordings and related information. Ops. Att'y Gen. 94-120, 94-100, 93-126, and 90-236. As concluded therein, it is my opinion that calls recorded by a publicly supported 911 public communications center generally constitute public records under the FOIA. Thus, as a general matter, in the absence of an exception, 911 tapes are open to public inspection and copying.

With regard, specifically, to tapes that are part of a criminal investigation, consideration must be given to the so-called "law enforcement" exemption under the FOIA. Under A.C.A. § 25-19-105(b)(6) (Supp. 1993), "[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity" are specifically exempted from public inspection. The Arkansas Supreme Court has stated in this regard that "if a law enforcement investigation remains open and ongoing it is one meant to be protected as `undisclosed' under the act." Martin v. Musteen,303 Ark. 656, 660 799 S.W.2d 540 (1990). As noted in Opinion 90-236 (copy enclosed), this exemption may come into play in connection with recorded 911 calls. This will, however, require a case-by-case evaluation of the call(s) to determine whether they are in fact part of such "undisclosed investigations." Op. Att'y Gen. 90-236 at 2; see also Op. Att'y Gen.94-100 at n. 2.

Regarding disclosure of taped material "where there is an aircraft crash," I cannot provide an opinion on this matter in the absence of more information concerning the particular facts and circumstances. There is, generally, no provision in the Arkansas FOIA addressing such a scenario. The possibility of a specific exemption, such as the law enforcement exemption, would of course have to be considered. Consultation with the FAA (Federal Aviation Administration) may also be advisable.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh