Erie County must provide 911 records

Erie County must provide 911 recordings to the plaintiffs in a lawsuit filed by the widow of a man who died in his car during a winter storm after a 911 dispatcher told him help was on the way.

The Appellate Division of state Supreme Court, Fourth Department, affirmed a ruling by state Supreme Court Justice John L. Michalski who ordered the county to provide the 911 records to attorneys for Jacqueline Abate.

Abate filed a lawsuit against Erie County after her husband, Donald Abate, died inside his vehicle during a major snow storm in November 2014.

After getting stuck on a road in Alden, Donald Abate called 911 at 3:50 a.m. Nov. 18, 2014, to ask for help. The dispatcher told him to stay in his car “and assured him that help would be forthcoming,” according to the Fourth Department decision written by Justice Patrick H. NeMoyer.

“Help did not arrive, however, until 1:37 a.m. on the following day (Nov. 19, 2014). By that point, it was too late – the decedent had tragically died, still stranded inside his vehicle,” according to the five-page decision.

As part of the discovery process in the case, Abate’s attorney sought the 911 records pertaining to Abate, along with 911 records for other people stranded at eight other locations near where Abate was stranded.

The county provided the 911 records for Abate, but refused to disclose the other records, arguing that they were exempt from disclosure under County Law Section 308 (4).

Michalski disagreed and granted the plaintiff’s motion. The county appealed “and we conclude that the order should be affirmed,” NeMoyer wrote.

According to County Law Section 308 (4): Records of calls to the 911 system “shall not be made available to or obtained by any entity or person, other than that municipality’s public safety agency, another government agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provision of emergency services.”

The county claims that language is absolute, but NeMoyer wrote in the decision that 911 records are often provided as part of the discovery process in criminal cases.

The law is not as a restriction on discovery, but “a narrow carve out that exempts 911 records from requests under the Freedom of Information Law and similar sunshine regimes,” NeMoyer wrote.