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Federal appeals court denies inmate's claim to 911 tape

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    NMU         VIRGINIA         Freedom of Information         Nov 17, 2000    

Federal appeals court denies inmate’s claim to 911 tape

  • The Fourth Circuit upheld the denial of access to a 911 tape because a provision of state law allows state agencies to regulate information dissemination to inmates.

On Nov. 14, a federal appeals court denied a criminal defendant’s claims that he is entitled under the First Amendment to inspect and copy the audio tape of a 911 call he made claiming that his wife had fallen into a river. The court rejected the defendant’s argument citing a U.S. Supreme Court decision from December 1999.

Herbert Fisher called a Gloucester County emergency dispatcher in 1987 to report that his wife had fallen off a Ware River pier. Four years later, a jury convicted Fisher of second degree murder of his wife Kathryn and he received a 20-year sentence.

Fisher filed a request with the county clerk of court in 1996 for the 911 recording. Fifteen months later, the clerk rejected the request under a provision of the Virginia Freedom of Information Act that denies FOI access to inmates. That provision, added to the state’s FOI Act by amendment, was not in place when Fisher made his initial request. The trial court rejected Fisher’s claim that the First Amendment prevents a state from writing a provision that bars access to inmates.

On appeal, the U.S. Court of Appeals in Richmond (4th Cir.) upheld the trial court, citing the U.S. Supreme Court’s decision in Los Angeles Police Department v. United Reporting Publishing. In that case, the high court found that a statute barring access by commercial requesters to some police records does not restrict expressive speech, but only regulates access to documents, and so it does not violate the First Amendment.

Citing the U.S. Supreme Court’s 1978 decision in Nixon v. Warner Communications, the Virginia high court said denial of access did not violate Fisher’s First Amendment right to documents submitted in the course of a criminal trial, and he had no greater right to the 911 recording than the general public. The Nixon case involved an attempt by news media to gain access to the original Watergate tapes. In Nixon as in Fisher’s case, tapes were played in court and the public was granted access to verbatim transcripts of the tapes.

(Fisher v. King; Wendy Michelle Marantz, Georgetown University Law Center, Washington, D.C.) CC

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