III. The 911 System and Discoverability of Records:
A. Legislative History
California Government Code Section 53100 a.k.a. (The Warren – 911 – Emergency Assistance Act): established a state-wide 3-digit system that in the mid-70’s replaced thousands of local emergency numbers directed to local law enforcement, fire and other emergency services under the guise of improving public safety through a more efficient call system.
B. The modern system
Almost all law enforcement agencies in California are working with some form of C.A.D. (Computer Aided Dispatch) that integrates the 911 log-system by documenting the call from its source, time, date, nature of the call and priority. All have a notation system for how the call was handled including what emergency services were dispatched and a general notation section that documents the subsequent call updates.
1. General Complications with the Wireless System:
a. In 2006, the wireless 911 system in California as a whole received 8 Million calls in 2006.
b. Historically the California Highway Patrol handled all 911 wireless calls. Today they continue to handle roughly 75% of those calls.
c. There is some movement to correct the over-burdened system. Presently there are roughly 300 local law enforcement agencies that are now fielding wireless 911 calls.
d. Longest wait times in 2006 to 911 dispatch centers:
i. 27 minutes Los Angeles County.
ii. 16 minutes Bay Area.
iii. 47 minutes Ventura County
The state standard is for 90% of 911 calls to be answered in 10 seconds!
If your case then involves a 911 call you may have to trace the source.
Example:
• A driver calls in an injury accident on her cell phone from a city street in San Mateo.
• The call will be routed to the CHP dispatch center in Vallejo and put on hold. Once answered and recorded by CHP dispatchers, the call will be transferred to the San Mateo Police Department.
• Only then will San Mateo Police dispatch determine the nature of the call to dispatch a San Mateo Police officer to the scene.
• The call may also be transferred again to Fire Department response and Ambulance.
Result for the Lawyer:
Given this present circumstance the record keeping for the call may be in a variety of locations. The CHP dispatch may have the only record of the original call. Frequently this original caller is a witness to the accident but is not necessarily a witness who is later identified in the subsequent police report.
2. Distinctions between local land line 911 system and CHP 911 system
Keep in mind that the local 911 system is generally superior to the wireless CHP 911 system on a variety of fronts.
Local System –
a. The land-line is rarely overloaded for call delays.
b. The system has a direct link to the address source of the call. This is usually one of the methods a dispatcher/supervisor can use to run a search related to calls generated from a particular residence over a historical period of time or phone number to answer an inquiry or subpoena.
c. Rarely does the system pass the call on to another agency outside the city from which the call is generated so tracking is less of an issue.
CHP System –
a. The single advantage is that by nature it is wireless.
b. System is seriously overloaded.
c. The content and quality of materials contained within the call log is likely to be far more limited than that of a local 911 system.
d. If the CHP dispatcher was not successful in obtaining the name and contact information from the original caller the lawyer will be gifted with another layer of red tape and subpoena’s to obtain the personal information of the caller.
e. CHP is likely to be a by the book organization whereas you may find that local agencies may be somewhat more relaxed in following strict guidelines related to the release of call-log information.
C. State Requirements for Record keeping: the voice-call and the log-entry
1. Audio voice 911 call:
California Government Code 26202.6 and 34090.6 audio recordings including the 911 system may be destroyed after 100 days.
2. 911 Call Log:
34090.6 of the Government Code appears to be interpreted by local law enforcement as authority to destroy 911 logs after 2 years.
Result for the lawyer:
Each agency is functioning by their own standard operating procedure. Therefore it must be addressed on a case-by-case basis and one must presume the records must be obtained immediately.
Examples of local law enforcement record retention:
San Francisco Police Department
Voice call – 3 years (but started in March of 2005)
Call Log – 3 years
San Rafael Police Department
Voice call – 180 days
Call Log – Permanent (they retain records indefinitely)
San Jose Police Department
Voice call – 14 months
Call Log – 7 years
Lessons Learned:
a. Value – Immediately determine value of the voice call and call log(s).
b. Notice – Put the agency on notice by letter and phone call that both the voice call(s) and call log(s) are maters of present or future litigation and they are required to retain those records for the entirety of the litigation process per. California Government Code Sections 26202.6 and 34090.6.
b. Preservation – Get those records in hand as quickly as possible to ensure their preservation.
D. The law and privacy / confidentiality considerations
1. The subpoena request
Generally, I have found that law enforcement agencies will not contest the request for records from an interested party in a filed case when the record request addresses the specific instances of the litigation in question. However, if you are asking the agency to produce records for a range of dates or calls privacy issues could arise.
Example of Subpoena Language:
“Please provide copies of all 911 logs generated from the address of 13 Satan Way, Fontana, CA 92335 from May 4, 2004 to the present.”
2. The mixed results
Making an all inclusive broad brush request can potentially get complicated if the source address has residents who are not named parties to the litigation; such as a nursing home with multiple residents. Other residents who are non-parties may be calling the 911 for reasons that are completely unrelated to your case. Again, this is a case by case basis and the product you receive will largely be based on the systems being used, the skill of the person making the search and what internal protocols they may be following before they release the documents requested.
Sit back and wait for the result.
3. Statutory considerations
In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state – Government Code Section 6250.
4. California Public Records Act and the balance between public need and confidentiality
Judicial decisions interpreting the California Public Records Act (CPRA) seek to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy. Copley Press, Inc. v. Superior Court (2006) 48 Cal.Rptr.3d 183, 39 Cal.4th 1272, 141 P.3d 288, on remand 2006 WL 3190280, unpublished.
5. Burden is on the Agency
California Public Records Act (CPRA) exemptions are to be narrowly construed, and the government agency opposing disclosure bears the burden of proving that one or more apply in a particular case. County of Los Angeles v. Superior Court (Axelrad) (App. 2 Dist. 2000) 98 Cal.Rptr.2d 564, 82 Cal.App.4th 819, review denied.
E. Approach to Subpoena 911 call logs
The basics
1. What am I after and why do I want it?
2. Call the dispatch center, ask for the custodian of records and follow the procedures outlined above.
a. I am not on the dark side (sound familiar?)
b. We have a common interest to get the bad guy.
c. Get them emotionally involved.
d. “Can you please help me?”
e. “I know I need to write a subpoena can you tell me how you want it to read to make it easier on you and make sure that I am getting what I need.”
f. Tell them it is going in the mail today.
g. Address it to that person.
h. You will get what you want because the person on the other end likes to hammer bad guys too.
F. Make friends or else
The bottom line – enemies are just enemies who want nothing more than to see you drown in an inch of water. Friends, even just made, will help if there is common ground and mutual interests. It is your job to find those connectors.
