Police Department denies request for 911 tapes

By PAUL SISSON
NC Times
Apr. 03, 2008

OCEANSIDE ---- The Oceanside Police Department has refused a request from the North County Times to release copies of the 911 emergency tapes recorded during a March 15 incident in which an off-duty San Diego police officer shot a woman and her 8-year-old child during an alleged episode of road rage.

The 911 calls were made to emergency dispatchers by off-duty San Diego police officer Frank White and motorist Rachel Silva, around the time the officer shot Silva and her 8-year-old son in the parking lot of a Lowe's store at Highway 76 and Old Grove Road.

The Oceanside Police Department, which is investigating the incident, has shed little light on the events that led up to the shooting, except to say that White and Silva were involved in a traffic dispute before pulling into the parking lot.

A letter, written by Oceanside City Attorney John Mullen and received by the Times on Friday, denies a request for copies of all 911 tapes recorded during the incident. The letter says the tapes "are part of the investigatory file in this matter and are therefore exempt from the disclosure provisions of the (Public Records Act)."

The letter cites a specific section of the act that allows law enforcement agencies to keep records secret when "the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record."

In the letter, Mullen writes that the 911 tapes "are or contain evidence that is being evaluated as part of the criminal investigation into this matter according to (the Oceanside Police Department.)"

In a telephone interview Monday, Mullen declined to say specifically what statements contained in the recordings might jeopardize investigation of the case. But he did say he does not expect the tapes to remain undisclosed.

"I believe these will be turned over, but not until the investigation is concluded," Mullen said. "When the matter is wrapped up, and the investigation has been turned over to the District Attorney's office, when all of the witnesses have been interviewed, I expect they will be released."

Peter Scheer, executive director of the California First Amendment Coalition and a graduate of Harvard Law School, said Monday that public records law allows a law enforcement agency like the Oceanside Police Department to withhold 911 tapes for certain reasons.

"They're citing the right sections," Scheer said. "They're saying the right things. One might be skeptical about whether their investigation might truly be jeopardized, but, since we're not in the position to know what's on that tape, we can't know if they're telling the truth."

He noted that only a judge would have the authority to review the tapes and determine whether their release would truly jeopardize the investigation.

"For government agencies that refuse to turn over records, the only way to get that decision changed is to take it to court," Scheer said. "It's possible that a judge, listening to those tapes in (chambers) might decide otherwise."

Contact staff writer Paul Sisson at (760) 901-4087 or [email protected]. Comment at nctimes.com.