The Honorable Lucas J. See
AGO 042419
No. 042419
West Virginia Attorney General Opinion
State of West Virginia Office of the Attorney General
April 24, 2019
The
Honorable Lucas J. See
Hardy
County Prosecuting Attorney
204
Washington Street, Room 104
Moorefield,
WV 26536
Dear
Prosecuting Attorney See:
You
have asked for an Opinion of the Attorney General regarding
the ability of a prosecutor's office to receive initial
computer aided dispatches ("CADs") that are
maintained by county 911 call centers. This Opinion is being
issued pursuant to West Virginia Code § 5-3-2, which
provides that the Attorney General "may consult with and
advise the several prosecuting attorneys in matters relating
to the official duties of their office." To the extent
this Opinion relies on facts, it is based solely on the
factual assertions in your correspondence with the Office of
the Attorney General.
The
Hardy County 911 Center ("911 Center") is a county
answering point, or "a facility to which enhanced
emergency telephone system calls for a county are initially
routed for response and where county personnel respond to
specific requests for emergency service." W.Va. Code
§ 24-6-2(2). Whenever the 911 Center dispatches a
law-enforcement officer in response to a call, it generates
an initial CAD. An initial CAD is used to "track calls,
register times and make notations regarding emergency
events." Owner-Operator Indep. Drivers Ass'n,
Grain Valley, MO v. PIFERSServ. Cntr, LLC, 2016 WL
691602, *3 (W.Va. Pub. Serv. Comm'n Feb. 3, 2016). In
your letter, you explain that you asked the 911 Center to
send copies of all initial CADs to your office, as well as to
the officer, so that your office can "keep up with
officer contacts with people who may be on probation or have
safety plans, etc." and more easily "interface with
urgent information changes or concerns." The 911 Center,
however, has declined to provide the initial CADs to your
office.
Your
letter raises the following legal question:
Does a county answering point have a legal obligation to
provide a prosecuting attorney with copies of all initial
CADs?
We
conclude that West Virginia law gives a county answering
point discretion to release this information to a prosecuting
attorney, but that disclosure is only mandatory in limited
circumstances.
Discussion
West
Virginia Code § 24-6-13(a) provides that "[a]ll
calls for emergency service reporting alleged criminal
conduct which are recorded electronically, in writing or in
any other form are to be kept confidential." A county
answering point, however, "may release information to
bona fide law-enforcement agencies, the prosecuting attorney
of a county or a United States Attorney pursuant to a lawful
criminal investigation." Id. § 24-6-13(d).
The 911 Center relied on this statutory provision to refuse
your office's request for all initial CADs in Hardy
County. And because "the word 'may' is
permissive and not mandatory," Butler v.
Tucker, 187 W.Va. 145, 149 n.4, 416 S.E.2d 262, 266 n.4
(1992); see also Syl. pt. 1, Pioneer Pipe,
Inc. v. Swain, 237 W.Va. 722, 791 S.E.2d 168
(2016), the 911 Center is correct that it had discretion
under Section 24-6-13(d) to decline your office's
request. Nevertheless, two sections of the West Virginia Code
may override this discretion in certain circumstances.
First,
the statute governing information available to a
multidisciplinary investigative team ("MDIT") may
require disclosure of initial CADs in certain circumstances.
The MD1T scheme is designed to "[p]rovide[] a system for
evaluation of and coordinated service delivery for children
who may be victims of abuse or neglect and children
undergoing status offense and delinquency...