RECORDING CONVERSATIONS ‑- EMERGENCIES ‑- CENTRAL DISPATCH
1. Communications between 911 Central Dispatch and law enforcement or fire personnel are generally not "private communications" under RCW 9.73.030, but in isolated cases could be "private."
2. When a communication to 911 Central Dispatch from a citizen is interrupted or incomplete, a return call from Central Dispatch to the citizen to obtain further information may be recorded without the consent of all parties to the call.
3. RCW 9.73.030(2) permits the recording of a communication from 911 Central Dispatch to a private citizen to warn of imminent danger such as fire, prowlers, or other criminal activity, if one party to the communication consents to the recording.
- - - - - - - - - - - - -
May 20, 1988
Honorable Paul Klasen
P.O. Box 37
Ephrata, Washington 98823
Cite as: AGO 1988 No. 11
Dear Mr. Klasen:
By letter previously acknowledged, you requested the opinion of this office regarding the application of RCW 9.73 [chapter 9.73 RCW] to communications between the "911 Central Dispatch Center"1/
[[Orig. Op. Page 2]] and law enforcement officers, fire fighters, or private citizens. We paraphrase your questions as follows:
1. Are communications between 911 Central Dispatch and law enforcement or fire personnel "private communications" under RCW 9.73.030?
2. When a communication to 911 Central Dispatch from a citizen is interrupted or incomplete, may a return communication by 911 Central Dispatch to the citizen to obtain further information be recorded without consent of all parties?
3. Does RCW 9.73 [chapter 9.73 RCW] prohibit the recording of a communication from 911 Central Dispatch to a private citizen to warn of imminent danger, such as fire, prowlers, or other criminal activity?
We answer your first question in the qualified negative, your second question in the affirmative, and your third question in the negative.
RCW 9.73 [chapter 9.73 RCW] generally prohibits the recording of any "private communication" without the consent of all participants in the communication. Any violation is a gross misdemeanor. RCW 9.73.080. Violation of the statute could also result in a civil action for actual damages, liquidated damages, costs, and reasonable attorney's fees. RCW 9.73.060. Any information gained through a prohibited recording is inadmissible in any court action. RCW 9.73.050.
The relevant portions of RCW 9.73.030 provide:
(1) ... [I]t shall be unlawful for ... the state of Washington, its agencies, and political subdivisions to intercept, or record any:
(a) Private communication transmitted by telephone, [or] ... radio... between two or more individuals ...without first obtaining the consent of all the participants in the communication;
(2) Notwithstanding the provisions of subsection (1) of this section, ... conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, [[Orig. Op. Page 3]] crime, or disaster ... may be recorded with the consent of one party to the conversation.
(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced ... that such communication is about to be recorded...
RCW 9.73.090 provides in part:
(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:
(a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers ...
Thus, the Legislature has created a number of exceptions to the general prohibition against recording private communications. Your questions essentially ask whether particular kinds of communications are "private," and, if so, whether such communications fall within one or more of these exceptions.
Are communications between 911 Central Dispatch and law enforcement or fire personnel "private communications" under RCW 9.73.030?
Your first question deals with communications between 911 Central Dispatch and law enforcement or fire personnel.
A determination of whether such communications are "private" is the necessary first step in responding to your inquiry.
State v. Slemmer, 48 Wn. App. 48, 738 P.2d 281 (1978), involved an appeal of a conviction of first degree theft and securities fraud. The court held that communications among members of an investment club at a club meeting were not "private communications" within the statute; thus, the recording of those communications was properly admitted in evidence. The court stated:
The courts have defined the word private in [RCW 9.73.030] to mean:
[[Orig. Op. Page 3]]
secret...intended only for the persons involved (a conversation)...holding a confidential relationship to something...a secret message; a private communication...secretly: not open or in public.
[State v.]Forrester, [21 Wn. App. 855,] 861, [587 P.2d 179 (1978)] (quotingWebster's Third New International Dictionary (1969));accord, State v. Bonilla, 23 Wn. App. 869, 872, 598 P.2d 783 (1979).
Slemmer, 48 Wn. App. at 52. The court held that the participants did not have a reasonable expectation of privacy because minutes of the meeting were being taken in plain view and the minutes would be available to anyone.
The question then becomes whether the participants in a conversation between 911 Central Dispatch and law enforcement or fire personnel have a reasonable expectation that their conversations are of a private nature. The answer to this question depends on the circumstances of each conversation, but we conclude that the answer is generally "no."
Several factors lead us to this generally negative answer. First, we understand that a large percentage of conversations between 911 Central Dispatch and law enforcement or firefighting officers is radio communication, commonly monitored by other officers and by private citizens owning devices that scan the radio frequencies used by police and fire agencies. In our opinion, the participants in a conversation that can readily be overheard and recorded by the general public do not have a reasonable expectation of privacy in their conversation.
Second, Even where a conversation is not "public" in that it is not monitored or heard by the public, it may be "public" in that the subject of the conversation is strictly of a public business nature. We assume that virtually all conversations between 911 Central Dispatch and public officers are official, public business conversations. While the participants may not expect the general public to monitor such conversations (indeed they may intentionally be using telephone lines which the general public cannot monitor), they still may understand that one party or the other may have a public purpose in recording such conversations. In this sense, they might except the conversations to be recorded and, therefore, the conversations are not "private."
To the extent there were any doubt on this point, the director of the 911 system ( or the sheriff, police chief, or fire chief in question) could inform the regular Central Dispatch users that all calls made to or from 911 Central Dispatch will be [[Orig. Op. Page 5]] recorded as a matter of official policy. In such a case, the participants to conversations are on notice that their conversations are being recorded and, again, have no reasonable expectations of privacy.
In addition,any incoming call may be recorded by the express terms of RCW 9.73.090(1)(a). SeeState v. Johnson, 104 Wn. 2d 179, 703 P.2d 1052 (1985). Thus, if an officer initiates a call to the Dispatch Center, it can lawfully be recorded even if it would otherwise be "private" under RCW 9.73.030.
We do recognize that there may be occasions when none of the factors just discussed is present, and 911 Central Dispatch might on occasion conduct a conversation with law enforcement or fire personnel under circumstances where the parties have a reasonable expectation of privacy as discussed in the statute. To avoid confusion over the recording of conversations, management in the communications system and in the agencies should adopt clear policies, perhaps after full consultation with employees, about the circumstances under which conversations will be recorded.
When a communication to 911 Central Dispatch from a citizen is interrupted or incomplete, may a return communication by 911 Central Dispatch to the citizen to obtain further information be recorded without consent of all parties?
Your second question concerns a return call by 911 Central Dispatch to a private citizen to obtain further information as a follow-up to an earlier contact initiated by the citizen. We assume that the return call is thus directly related to the initial call, in the sense that 911 Central Dispatch needs further information from the citizen to respond adequately to the call.
First, we do not believe the original call by the citizen would be a "private communication" under RCW 9.73.030. Individuals speaking with 911 Central Dispatch cannot have a reasonable expectation that the conversations would be secret or confidential. Such calls are made for the purpose of notifying an agency, not any one individual, of an emergency. SeeState v. Bonilla, 23 Wn. App. 869, 598 P.2d 783 (1979). The center reasonably would be expected to forward the substance of the call to the appropriate agency to provide assistance.
Any return call by the agency likely would be viewed as a continuation of the original call initiated by the citizen. As noted above, any incoming call may be recorded. State v. [[Orig. Op. Page 6]] Johnson, supra. Your question assumes that 911 Central dispatch deems it necessary in some cases to obtain further information regarding the original call by the citizen. The purpose of the return call would not, therefore, be substantially different than the purpose of the original call: to communicate information necessary for an agency to respond to an emergency. It would be absurd to conclude that the Legislature intended to permit only part of such a communication to be recorded. It is a basic rule of statutory construction that statutes should be interpreted so as to avoid absurd consequences. Blondheim v. State, 84 Wn.2d 874, 529 P.2d 1096 (1975).
Focusing on both the original call and the return call, we do not believe a citizen would have a reasonable expectation of privacy in such communications. Therefore, such communications would be outside the statutory prohibition on recording.
Does RCW 9.73 [chapter 9.73 RCW] prohibit the recording of a communication from 911 Central Dispatch to a private citizen to warn of imminent danger, such as fire, prowlers, or other criminal activity?
Your final question concerns the communications center initiating a telephone call to a citizen to warn of an imminent danger, such as fire, prowlers, or other criminal activity.
Initially, we again have substantial doubt that such a call would be held to be "private." A citizen could not have a reasonable expectation of privacy in a call from a public agency warning of imminent danger. It seems unlikely that a court would hold such a call to be "secret" or "confidential." SeeState v. Slemmer,supra; State v. Bonilla, supra.
However, even if such a communication were held to be "private," in our opinion the Legislature has specifically exempted such a call from the statutory prohibition against recording. RCW 9.73.030(2) provides in part that "conversations ...of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster...may be recorded with the consent of one party to the conversation."
While the Legislature obviously was thinking primarily of callsto the authorities when it enacted the language just cited, it is equally clear that there are occasions when the authorities may initiate such "conversations of an emergency nature." The same public policy arguments in favor of permitting emergency calls to be recorded‑-the need for a permanent record to clarify the content of the call if questions arise later‑-are equally [[Orig. Op. Page 7] ] present whether the citizen or the Dispatch Center initiates the call. Thus we conclude that conversations of an emergency nature may be recorded with the consent of one party, no matter who initiates the call.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
NANCY THYGESEN DAY
Assistant Attorney General
*** FOOTNOTES ***
1/All your questions relate to communications with the "911 Central Dispatch Center." In many areas of the state, law enforcement and fire protection agencies have combined their emergency communications systems so that citizens may call a single entity for help. Such a communication center will receive a call for assistance and determine which agency would best be able to respond. We have assumed that such a communication center is staffed by law enforcement or fire personnel and, further, that a call to such a center is the equivalent of a call to a police or fire station.