Present: All the Justices 

JUDI TULL, ET AL. 

v. Record No. 970002 

HAROLD D. BROWN, SHERIFF OF SURRY COUNTY 

OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 9, 1998 

DAVID STRICKLAND, ET AL. 

v. Record No. 970003 

HAROLD D. BROWN, SHERIFF OF SURRY COUNTY 

FROM THE CIRCUIT COURT OF SURRY COUNTY 

Robert G. O’Hara, Jr., Judge 

 In this appeal, several news media organizations and their 

representatives (the Media) challenge the circuit court’s denial 

of their requests under The Virginia Freedom of Information Act 

(FOIA), Code §§ 2.1-340 et seq., for access to audio tape 

recordings and related materials (911 Tape) concerning an 

emergency call to the Surry County 911 Emergency Response System 

(911 System).1 The Surry County Sheriff’s Office (SCSO), under 

the direction of Sheriff Harold D. Brown (Sheriff Brown), 

operates the system and has custody of the requested information. 

 Because we find that the 911 Tape is an official record that is 

exempt from disclosure, we will affirm the judgment of the 

circuit court. 

 

 1 The lower court consolidated several petitions for 

mandamus and injunctive relief with a declaratory judgment 

action. Judi Tull, The Daily Press, Inc., W. Alec 

Cunningham, Times Publishing Company, Brian M. Rafferty, 

Chesapeake Publishing Corporation, David Strickland, and 

WAVY-TV filed the petitions for mandamus. Harold D. Brown, 

Sheriff of Surry County, filed the application for 

declaratory judgment. 
 I. 

 Surry County established the 911 System in October 1995 and 

funds its operation with public monies. The SCSO serves as the 

dispatcher for all 911 calls. When such a call comes into the 

dispatcher’s office, which is located in a portion of the SCSO 

not accessible to the public, the dispatcher advises the 

appropriate provider of emergency services of the call for 

assistance and/or dispatches SCSO deputies to the crisis scene. 

 The SCSO also uses its recording ensemble in conjunction 

with the 911 System. The recording ensemble consists of two tape 

decks located in a locked cabinet in the dispatcher’s office. 

Each deck holds a twelve-inch tape reel capable of recording ten 

channels simultaneously. One tape is used for each 24-hour 

period, after which the system automatically switches to the 

other deck. The recorded tape is removed, placed in a locked 

storage cabinet, and reused after 30 days unless a police officer 

needs information on it.2 Only Sheriff Brown, his secretary, and 

the chief dispatcher have the code that allows access to these 

tapes. The system records not only 911 calls, but also all radio 

traffic over the SCSO radio network and the State 

Interdepartmental Radio System, and all incoming and outgoing 

calls over four SCSO telephone lines. SCSO personnel use these 

lines for official business including criminal investigations. 

Finally, the system records all conversations between individuals 

physically in the dispatcher’s office. 

 

 2 Sheriff Brown agreed to preserve the 911 Tape at issue 

in this case. 
 On November 21, 1995, the SCSO dispatcher received a 911 

call from the home of Wayne and Lisa Rickman concerning a child 

who had stopped breathing. During the next 20 minutes, there 

were exchanges between the dispatcher and the 911 caller, and 

between the dispatcher and various law enforcement and rescue 

personnel. The child subsequently died at a local hospital, and 

the SCSO treated the incident as a criminal investigation until 

an autopsy ruled out any criminal activity as the cause of death. 

 Beginning on November 27, 1995, because of alleged public 

concern about the efficiency of the 911 System in responding to 

this call, Sheriff Brown received several requests from the Media 

for the 911 Tape made during this incident. Judi Tull, a 

reporter with The Daily Press, Inc., made the first request, 

which encompasses all the information sought by the Media under 

FOIA: 

 I want to listen to the tape recording made at the 

county dispatch office, containing conversations 

involving and related to the call from the home of 

Wayne and Lisa Rickman to the Surry County 911 system 

on Tuesday, Nov. 21, 1995. This request includes the 

call made from the Rickman house to the dispatcher, and 

any subsequent conversations or calls made by anyone at 

the dispatch office or other government office in 

relation to this call. In addition, I am also asking 

for any written documents or any information stored 

electronically or magnetically, related to this 

dispatch call and actions by the dispatcher, including 

any information stored in a computer or on disc. 

 In response to the Media’s requests, Sheriff Brown denied 

access to the actual tape. He first claimed that the SCSO is not 

a public body within the meaning of FOIA but has since stipulated 

that he is a public official. Sheriff Brown then asserted, as a 

basis for his denial, that the 911 Tape is not an official record 
as defined in FOIA. Alternatively, he maintained that, if the 

911 Tape is an official record, it is exempt from disclosure 

under Code § 15.1-135.1(B)(5). 

 Sheriff Brown did, however, provide the Media with a 

transcript of the recorded conversations relating to this 

incident.3 Because of the repeated requests for access to the 

actual tape even after he had provided the transcript, Sheriff 

Brown petitioned the circuit court to declare that the 911 Tape 

is “not available to the public under the Freedom of Information 

Act.” The Media then filed several petitions for mandamus and 

injunctive relief. After considering all the evidence presented 

at a hearing, the circuit court, in an order dated October 2, 

1996, granted declaratory judgment for Sheriff Brown after making 

the following specific findings: 

 l. The 911 Tapes are not official records subject to 

FOIA disclosure because the 911 Tapes are not prepared, 

owned or possessed by the Sheriff in the transaction of 

public business, as neither the originator nor the 

recipient of the emergency call would reasonably 

believe or realize they were transacting public 

business. 

 2. The Court further finds that even if the 911 Tapes 

are official records, they are exempt from FOIA as 

noncriminal incident reports required to be kept by the 

Sheriff pursuant to § 15.1-135.1 of the Code of 

Virginia in the efficient operation of a law 

enforcement agency; and 

 3. Finally, the court finds that, if not exempt from 

FOIA by definition or statutory exemption, mandatory 

disclosure of the 911 Tapes would not be required 

because the General Assembly intended to exclude from 

mandatory disclosure information which, if required to 

be released, would unconstitutionally interfere with 

 3 A court reporter prepared the transcript after listening 

to the separate channels on the tape and integrating the 

various recordings into one document. 
the Sheriff’s ability to execute the duties of his 

office; therefore, such information falls outside the 

coverage of FOIA by the ruling of the Virginia Supreme 

Court in Taylor v. Worrell Enterprises, 242 Va. 219 [, 

409 S.E.2d 136] (1991). 

The Media appeal. 

 II. 

 The policy underlying FOIA and its rules of construction are 

set forth in Code § 2.1-340.1: 

 By enacting this chapter the General Assembly 

ensures the people of this Commonwealth ready access to 

records in the custody of public officials and free 

entry to meetings of public bodies wherein the business 

of the people is being conducted. . . . 

 This chapter shall be liberally construed to 

promote an increased awareness by all persons of 

governmental activities and afford every opportunity to 

citizens to witness the operations of government. Any 

exception or exemption from applicability shall be 

narrowly construed in order that no thing which should 

be public may be hidden from any person. 

See also City of Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 

429, 431 (1982). In applying the statute, we have stated that 

“[t]he Act is simple and direct in its requirements. If the 

requested document is an ‘official record,’ . . . then it ‘shall 

be open to inspection and copying’ except ‘as otherwise 

specifically provided by law’ . . . .” Associated Tax Service v. 

Fitzpatrick, 236 Va. 181, 187, 372 S.E.2d 625, 629 (1988) 

(quoting Code §§ 2.1-341 and 2.1-342(A)). Accordingly, we must 

decide whether the 911 Tape is an official record, and if it is, 

we must then determine whether it is exempt from disclosure. 

 On the first question, the circuit court ruled that the 911 

Tape is not an official record4 because “neither the originator 

 

 4 Code § 2.1-341 defines "official records" as: 
nor the recipient of the emergency call would reasonably believe 

or realize they were transacting public business.” Sheriff Brown 

expounds on this ruling by arguing that a 911 caller has an 

expectation that his/her voice and the content of the message 

will not be available to the public. He also contends that a 911 

call affects only an individual and not the community at large. 

 Sheriff Brown’s position is, however, untenable. Even if a 

911 caller assumes that the call will remain private,5 the 

caller’s expectation of privacy or claim of confidentiality does 

not prevent a recording of the call from being prepared “in the 

transaction of public business.” Moreover, Surry County created 

the 911 System with public funds to provide for public safety. 

The “transaction of public business” includes public safety. See

Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 833 

(1980)(“[Police power] includes the power to prescribe 

regulations to promote the health, peace, morals, education and 

good order of the people.”). Indeed, every citizen in Surry 

County relies on the 911 System, and to say that the operation of 

the system by the SCSO and Sheriff Brown is not “in the 

 

 [A]ll written or printed books, paper, letters, 

documents, maps and tapes, photographs, files, 

sound recordings, reports or other material, 

regardless of physical form or characteristics, 

prepared, owned, or in the possession of a public 

body or any employee or officer of a public body in 

the transaction of public business. 

 5 But see Cincinnati Enquirer v. Hamilton County, 662 

N.E.2d 334, 337 (Ohio 1996) ("There is no expectation of 

privacy when a person makes a 911 call. Instead, there is an 

expectation that the information provided will be recorded 

and disclosed to the public."). 
transaction of public business” is simply inaccurate. 

Furthermore, Sheriff Brown is a public official, see Va. Const. 

art. VII, § 4, and acts in that capacity when managing the 911 

System. Thus, we conclude that the 911 Tape is an official 

record under FOIA. See State v. Cain, 613 A.2d 804, 809 (Conn. 

1992); State v. Gray, 741 S.W.2d 35, 38 (Mo. App. 1987); 

Cincinnati Enquirer, 662 N.E.2d at 337. 

 Even though we find that the circuit court erred in holding 

that the 911 Tape is not an official record, we agree that the 

tape is exempt from disclosure under Code § 15.1-135.1 as 

“noncriminal incidents records.” This section requires a sheriff 

to maintain “adequate personnel, arrest, investigative, 

reportable incidents, and noncriminal incidents records necessary 

for the efficient operation of a law-enforcement agency” and 

makes such records exempt from disclosure under FOIA. Code 

§ 15.1-135.1(A). “Noncriminal incidents records” are defined as 

“compilations of noncriminal occurrences of general interest to 

law-enforcement agencies, such as missing persons, lost and found 

property, suicides and accidental deaths.” Code § 15.1-

135.1(B)(5). 

 The Media challenge the circuit court’s application of this 

exemption for several reasons. First, the Media argue that the 

911 Tape is not a law enforcement record because Surry County, 

not the SCSO, created and funds the 911 System, and Sheriff Brown 

is merely the tape’s custodian. However, the SCSO operates the 

911 System during the performance of its traditional law 

enforcement responsibilities. The fact that Sheriff Brown 
carries out this service on behalf of the county does not make 

the 911 Tape any less a law enforcement record. Furthermore, 

Code § 15.1-135.1 directs a sheriff to maintain, “in addition to 

other records required by law,” other enumerated records 

“necessary for the efficient operation of a law-enforcement 

agency.” One such type of record is “noncriminal incidents 

records.” Code § 15.1-135.1(A). 

 The Media, however, assert that the 911 Tape does not fall 

under “noncriminal incidents records” because it is not a 

compilation. According to the Media, the 911 Tape is only raw 

data and not an orderly report or summary created by assembling 

raw data, i.e., a compilation. Nonetheless, we conclude that the 

tape is a grouping of electronically gathered information and 

thus a “compilation.” The tape at issue in this case is not just 

a recording of the conversation between the 911 caller and the 

dispatcher. Rather, it is a recording on multiple channels of 

all radio traffic handled through the SCSO’s dispatch office in 

addition to conversations occurring on SCSO’s four telephone 

lines and conversations between individuals physically in the 

dispatcher’s office. In short, all activity occurring in the 

dispatch office as well as that on the four telephone lines is 

compiled on this tape. 

 Finally, the Media argue that the 911 Tape is not the kind 

of “noncriminal incidents” included in this exemption. Yet, 911 

calls frequently concern suicides or accidental deaths, which are 

two of the specific examples included in Code § 15.1-135.1(B)(5). 

 Even the 911 call at issue here involved the initially 
unexplained death of a child. 

 Thus, we conclude that the 911 Tape falls squarely within 

the exemption set forth in Code § 15.1-135.1(B)(5). Contrary to 

the Media’s argument, the fact that Sheriff Brown voluntarily 

provided a transcript of the specific 911 call does not waive his 

right to deny access to the actual tape under this exemption.6 

See Westminster-Canterbury v. City of Virginia Beach, 238 Va. 

493, 503, 385 S.E.2d 561, 566 (1989) ("[E]stoppel does not apply 

to the state or to local governments when acting in a 

governmental capacity."); see also Litchfield Plantation Co., 

Inc. v. Georgetown County Water and Sewer District, 443 S.E.2d 

574, 575 (S.C. 1994) (holding that FOIA exemptions not waived by 

public body's failure to respond). 

 For these reasons, we will affirm the judgment of the 

circuit court.7

Record Number 970002 -- Affirmed.

Record Number 970003 -- Affirmed.

 

 6 Likewise, the fact that Sheriff Brown recycles the tapes 

does not affect their exemption under FOIA. 

 7 In light of this decision, we do not address the media's 

remaining assignment of error. We also do not decide whether 

the 911 Tape would be exempt under other subsections of Code 

§ 15.1-135.1(B) since Sheriff Brown did not rely on those 

subsections in denying the Media's requests. See Code § 2.1-

342(A)(2).