Will Florida’s sunshine law thwart the federal government’s censorship of the Orlando nightclub shooter’s 911 call?

UPDATE:

 

The Federal Bureau of Investigation has released a partially censored transcript of Orlando nightclub shooter Omar Mateen’s 911 call in which he pledged allegiance to the Islamic State and said his motive was to tell America to stop bombing Syria and Iraq. I’ve pasted the full version at the end of this post, but here’s the relevant bits:

OD: Emergency 911, this is being recorded.

OM: In the name of God the Merciful, the beneficial [in Arabic]

OD: What?

OM: Praise be to God, and prayers as well as peace be upon the prophet of God [in Arabic]. I let you know, I’m in Orlando and I did the shootings.

OD: What’s your name?

OM: My name is I pledge of allegiance to [omitted].

OD: Ok, What’s your name?

OM: I pledge allegiance to [omitted] may God protect him [in Arabic], on behalf of [omitted].

OD: Alright, where are you at?

OM: In Orlando.

OD: Where in Orlando?
***
2:48 a.m.: First crisis negotiation call occurred lasting approximately nine minutes.

3:03 a.m.: Second crisis negotiation call occurred lasting approximately 16 minutes.

3:24 a.m.: Third crisis negotiation call occurred lasting approximately three minutes.

In these calls, the shooter, who identified himself as an Islamic soldier, told the crisis negotiator that he was the person who pledged his allegiance to [omitted], and told the negotiator to tell America to stop bombing Syria and Iraq and that is why he was “out here right now.” When the crisis negotiator asked the shooter what he had done, the shooter stated, “No, you already know what I did.” The shooter continued, stating, “There is some vehicle outside that has some bombs, just to let you know. You people are gonna get it, and I’m gonna ignite it if they try to do anything stupid.” Later in the call with the crisis negotiator, the shooter stated that he had a vest, and further described it as the kind they “used in France.” The shooter later stated, “In the next few days, you’re going to see more of this type of action going on.” The shooter hung up and multiple attempts to get in touch with him were unsuccessful.

The Justice Department omitted the specific words, so we don’t know if he preferred the terminology ISIS, ISIL, Daesh, or Islamic State. Presumably the person whose name is omitted is Abu Bakr al-Baghdadi, the Islamic State’s leader.

On Sunday, Attorney General Loretta Lynch purported to explain on ABC’s This Week why they would release only the partial transcripts: “I say partial because we’re not going to be, for example, broadcasting his pledges of allegiance. We are trying not to re-victimize those who went through that horror.” That explanation seems so obviously dubious that I wonder if the real concern is not wanting to provide raw materials for ISIS propaganda, except:

But since Florida has an excellent open public records Sunshine law, and the Orlando Police Department is subject to that state law, I suspect my old employer The Miami Herald or some other state news outlet will attempt to get the completed and uncensored version of at least the transcript and maybe the audio very quickly regardless. Federalism!

Here’s what a 2014 manual for law enforcement agencies put out by Florida’s attorney general says about 911 calls. It suggests that the Orlando Police Department will have some arguments to make if they don’t want to put out the full call–they could say it is “active criminal investigative information” or events immediately before/after a killing of a person. So it may take a judge’s order to get it out:

8. Emergency records

a. Emergency “911” records Section 365.171(12)(a), F.S., provides that any record, recording, or information, or portions thereof, obtained by a public agency for the purpose of providing services in an emergency which reveals the name, address, or telephone number or personal information about, or information which may identify any person requesting emergency service or reporting an emergency by accessing an emergency communications E911 system is confidential and exempt from s. 119.07(1), F.S. However, disclosure of the location of a coronary emergency to a private person or entity that owns an automated external defibrillator is authorized in some circumstances, as set forth in the exemption. Section 365.171(12)(b), F.S.

The exemption applies only to the name, address, telephone number or personal information about or information which may identify any person requesting emergency services or reporting an emergency while such information is in the custody of the public agency or public safety agency providing emergency services. Section 365.171(12)(a), F.S. See AGO 93- 60. There is no clear indication that the Legislature intended to include the sound of a person’s voice as information protected from disclosure. AGO 15-01. Moreover, identifying information obtained or created independently of the 911 call, for example from a criminal investigation or offense report created as a result of such investigation, is not exempt under s. 365.171(12)(a), F.S. AGO 11-27.

A tape recording of a “911” call is a public record which is subject to disclosure after the deletion of the exempt information. AGO 93-60. This does not, however, preclude the application of another exemption to such records. Thus, if the “911” calls are received by a law enforcement agency and the county emergency management department, information which is determined by the law enforcement agency to constitute active criminal investigative information may also be deleted from the tape prior to public release. AGO 95-48. See also Inf. Op. to Fernez, September 22, 1997 (while police department is not prohibited from entering into an agreement with the public to authorize access to its radio system, the department must maintain confidentiality of exempt personal information contained in “911” radio transmissions).

Moreover, an audio recording that records the “killing of a person” is confidential and exempt and may not be listened to or copied except as authorized in the exemption. Section 406.136, F.S. The term “killing of a person” is defined to mean “all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.” Section 406.136(1), F.S.

Here is the FBI press release with the partial transcript:

Investigative Update Regarding Pulse Nightclub Shooting

ORLANDO – In order to provide an update on the progress of the investigation into the Pulse nightclub shooting, the FBI is releasing an excerpt from the timeline of events inside the Pulse nightclub during the early morning hours of Sunday, June 12, 2016. Out of respect for the victims of this horrific tragedy, law enforcement will not be releasing audio of the shooter’s 911 calls at this time,nor will law enforcement be releasing audio or transcripts of the calls made by victims at the Pulse nightclub during the incident. Furthermore, the name of the shooter and that of the person/group to whom he pledged allegiance are omitted.

The following is based on Orlando Police Department (OPD) radio communication (times are approximate):

2:02 a.m.: OPD call transmitted multiple shots fired at Pulse nightclub.

2:04a.m.: Additional OPD officers arrived on scene.

2:08 a.m.: Officers from various law enforcement agencies made entrance to Pulse and engaged the shooter.

2:18 a.m.: OPD S.W.A.T. (Special Weapons & Tactics) initiated a full call-out.

2:35 a.m.: Shooter contacted a 911 operator from inside Pulse. The call lasted approximately 50 seconds, the details of which are set out below:

Orlando Police Dispatcher (OD)
Shooter (OM)

OD: Emergency 911, this is being recorded.

OM: In the name of God the Merciful, the beneficial [in Arabic]
OD: What?

OM: Praise be to God, and prayers as well as peace be upon the prophet of God [in Arabic]. I let you know, I’m in Orlando and I did the shootings.

OD: What’s your name?
OM: My name is I pledge of allegiance to [omitted].
OD: Ok, What’s your name?

OM: I pledge allegiance to [omitted] may God protect him [in Arabic], on behalf of [omitted].

OD: Alright, where are you at?

OM: In Orlando.

OD: Where in Orlando?

[End of call.]

(Shortly thereafter, the shooter engaged in three conversations with OPD’s Crisis Negotiation Team.)

2:48 a.m.: First crisis negotiation call occurred lasting approximately nine minutes.

3:03 a.m.: Second crisis negotiation call occurred lasting approximately 16 minutes.

3:24 a.m.: Third crisis negotiation call occurred lasting approximately three minutes.

In these calls, the shooter, who identified himself as an Islamic soldier, told the crisis negotiator that he was the person who pledged his allegiance to [omitted], and told the negotiator to tell America to stop bombing Syria and Iraq and that is why he was “out here right now.” When the crisis negotiator asked the shooter what he had done, the shooter stated, “No, you already know what I did.” The shooter continued, stating, “There is some vehicle outside that has some bombs, just to let you know. You people are gonna get it, and I’m gonna ignite it if they try to do anything stupid.” Later in the call with the crisis negotiator, the shooter stated that he had a vest, and further described it as the kind they “used in France.” The shooter later stated, “In the next few days, you’re going to see more of this type of action going on.” The shooter hung up and multiple attempts to get in touch with him were unsuccessful.

4:21 a.m.: OPD pulled an air conditioning unit out of a Pulse dressing room window for victims to evacuate.

(While the FBI will not be releasing transcripts of OPD communication with victims, significant information obtained from those victims allowed OPD to gain knowledge of the situation inside Pulse.)

4:29 a.m.: As victims were being rescued, they told OPD the shooter said he was going to put four vests with bombs on victims within 15 minutes.

(An immediate search of the shooter’s vehicle on scene and inside Pulse ultimately revealed no vest or improvised explosive device.)

5:02 a.m.: OPD SWAT and OCSO Hazardous Device Team began to breach wall with explosive charge and armored vehicle to make entry.

5:14 a.m.: OPD radio communicationstated that shots were fired.

5:15 a.m.: OPD radio communication stated that OPD engaged the suspect and the suspect wasreported down.

Based on OPD radio communications, there were no reports of shots being fired inside Pulse between the initial exchange of gunfire between responding officers and shooter, and the time of the final breach. During this time, the shooter communicated with an OPD 911 operator and an OPD crisis negotiator, and OPD radio communications reported that victims were being rescued.

The FBI urges the public to provide information about the shooter and any contact they may have had with him. Since the release of the FBI’s Seeking Information poster, the FBI has received thousands of tips. The FBI will investigate every tip.

To provide a tip, please call1-800-CALL-FBI or visit tips.fbi.gov.