See, 042419 WVAGO, AGO 042419

Case DateApril 24, 2019
CourtWest Virginia
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...

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