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Evidentiary 911 tapes not open records

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Evidentiary 911 tapes not open records

  • The South Carolina Court of Appeals ruled that tapes of a 911 call are not open records if they are evidence in a pending criminal trial.

Nov. 21, 2003 — Recordings and transcripts of 911 emergency calls are exempt from disclosure under the South Carolina Freedom of Information Act when they are evidence in a pending criminal trial, a state appeals panel ruled Monday.

Recordings of 911 calls are normally open records in South Carolina.

The three-judge appeals panel upheld a trial court ruling, citing an exemption to the state FOI Act for records “to be used in a prospective law enforcement action.” The court said pending criminal trials fall within that definition.

The case stemmed from the shooting death of a black man, Edward Snowden, by two white police officers in October 2000.

Snowden was allegedly chased and beaten by four white men outside of a North Charleston video store. Snowden retrieved a licensed handgun from his vehicle and fired a warning shot into the ground. When the gun then jammed, the men chased Snowden into the video store, where he tried to hide behind the counter. The police arrived during the altercation in the store, and shot and killed Snowden.

Video store owner Tony Pham called 911 when the altercation began in the parking lot, and remained on the phone with dispatchers throughout the incident.

In June 2001, after reviewing a recording of the 911 call, prosecutors decided not to press charges against the officers. The (Charleston) Post and Courier and Snowden’s family filed FOI Act requests for the recordings to find out what happened and why the officers were not charged.

The city denied the FOI Act requests because the recordings were to be used in the prosecution of the four alleged assailants on charges under the state’s lynching statutes. A Charleston County trial court upheld the city’s decision, but allowed the family access to the recordings for use in a federal civil suit against the city, provided they not disclose the recordings to the public.

“When an innocent man is shot and killed by the very police officers who are sent to protect him, the public has a legitimate right to complete information contemporaneous with the event,” John J. Kerr, attorney for The Post and Courier, said in court documents.

The Boston Globe reported on Sept. 11, 2001, that, according to the police officers’ attorney, Andrew Savage, the officers ordered Snowden to drop his gun. Instead, Savage said, Snowden pointed it at them, and they shot him.

However, Pham told The Globe that the officers made no such demand and fired before Snowden had time to realize they were there.

Although the recordings were made public during the lynching trial, which ended in a mistrial in March 2002, the Court of Appeals agreed to review the case because the issue was “capable of repetition yet evading review.”

Three of the four alleged assailants are currently being retried on lesser assault charges. Charges were dismissed against the fourth, and the U.S. Department of Justice cleared the officers of wrongdoing. The Snowden family settled its wrongful death lawsuit against the city for $69,950 earlier this year.

(Evening Post Publishing Co. v. City of North Charleston; Media Counsel: John J. Kerr, Buist, Moore, Smythe, Charleston) GP

© 2003 The Reporters Committee for Freedom of the Press

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