LISTEN: 911 call involving Duggars released

Youth-court opinion tied to records' delay

FAYETTEVILLE -- Release of a 911 recording under the state's Freedom of Information Act was delayed for almost four months by two letters written by Washington County Juvenile Court Judge Stacey Zimmerman, according to testimony in a hearing Tuesday.

The Northwest Arkansas Democrat-Gazette filed suit to obtain a recording of a May 27 call to Springdale's 911 center. The call involved the Duggar family of Tontitown, the subject of a now-canceled TLC Network show 19 Kids and Counting. The newspaper first filed the request June 9, and sued on Sept. 3 after repeated requests were denied.

 Stacey Zimmerman
Stacey Zimmerman

Washington County Circuit Judge Beth Storey Bryan ruled in the newspaper's favor on all points except its request for attorney fees. Bryan ruled the city was justified in its caution before releasing the recording because of letters Zimmerman wrote to Springdale City Attorney Ernest Cate, advising against the release of records involving children.

"We were confident in our interpretation of the Freedom of Information Act and are pleased with Judge Bryan's ruling in the newspaper's favor," said Brandon Cate of Springdale, attorney for the newspaper.

Springdale also expressed satisfaction with Bryan's ruling.

"As the court testimony demonstrated, the city stood ready to offer the documents to the Northwest Arkansas Democrat-Gazette pursuant to the newspaper's FOIA requests but could not in the light of the orders and communications received from the juvenile court," said Justin Eichmann, an attorney for the city.

Bud Cummins of Little Rock, attorney for the Jane Doe youth who argued against release of recording, had no comment.

Zimmerman was out of town Tuesday and not available for comment, a spokesman for her office said. Zimmerman has previously declined to comment on matters relating to her court, citing confidentiality requirements.

Springdale had released the 911 recording to In Touch magazine of Englewood, N.J., and the magazine had posted the recording online June 10. Yet the city refused to release the same recording after the NWA Democrat-Gazette requested it June 9. "It wasn't the contents of a juvenile case we wanted, but to find out why Springdale changed their approach to the document's release," Rusty Turner, executive editor of the newspaper, said of filing of the lawsuit.

Someone identifying himself as a state Department of Human Services caseworker called the Springdale 911 center on May 27, gave the Duggars' address and said: "We have an investigation, and I guess they're not being cooperative. We have to see the child to make sure the child is all right. So we just need police assistance."

On May 21, Zimmerman had ordered the destruction of all of Springdale's copies of a police report that had been released under Freedom of Information Act earlier. That report revealed that Joshua Duggar, the eldest of the Duggar children, had fondled five victims in their sleep when he was a teenager. Springdale complied with that request that day.

Zimmerman's letters were released Tuesday as a part of the lawsuit. She wrote a three-page, single-spaced letter sent to Springdale on May 27 by both fax and regular mail. This was followed up by an eight-page, single-spaced letter on June 11, the day after In Touch posted a recording of the 911 call.

Zimmerman's letters did not refer to 911 calls, but asked what Springdale's policy was regarding the release of juvenile records and warning the city that many records involving minors were exempt from Freedom of Information Act.

Zimmerman's June 11 letter was a major factor in Springdale's decision against releasing the recording to the newspaper, testified Capt. Ron Hritz of the Springdale Police Department. Zimmerman's letters put Springdale on "the horns of dilemma," Susan Kendall of Rogers, an attorney for the city, told Bryan at the hearing. It could either comply with what it believed to be the obligation of the city to release the record or heed the unofficial but strong views of a sitting judge.

Before the lawsuit was filed, Springdale asked for an advisory ruling from Zimmerman on whether it could release the 911 recording. Zimmerman declared during an Aug. 18 hearing in her court that she could not give an advisory opinion. Attorneys for Springdale mentioned Zimmerman's letters to the city attorney in that proceeding in August. The newspaper filed a new request for those letters that day, and included the demand for the letters in the Sept. 3 lawsuit when that request was not complied with.

In her letters, Zimmerman cites laws that require confidentiality in cases involving children, laws that Bryan ruled Tuesday did not apply to calls made to a 911 emergency call center.

Also, the city had become aware of court orders in the earlier Duggar case, the one involving Joshua, that Zimmerman had issued further orders giving her opinions on the prohibitions against releasing records. The city only became aware of those "supplemental" orders when they arrived attached to a complaint about the release of the records filed with the Springdale Civil Service Commission, Kendall said. The commission later ruled it did not have the authority to rule on the matter.

911 calls are not exempt from public disclosure when those calls involve children, Bryan ruled. Investigators' records involving children are exempt from the Freedom of Information Act, but those exemptions do not extend to emergency calls, Bryan ruled.

"The letters make it clear that the involvement of Judge Zimmerman, outside of her jurisdiction, muddied the waters and complicated things," Turner said after reading the juvenile judge's correspondence to Springdale's city attorney.

"Our intention in pursuing these documents had to do with not only the performance of the city of Springdale, but also with the involvement of an elected judge," Turner said.

Metro on 10/07/2015

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