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June 11, 2013, 1:48 p.m.

Privacy versus transparency: Connecticut bans access to many homicide records post-Newtown

A well-intentioned attempt to shield the families of shooting victims “may have grave consequences for the future of the state’s transparency.”

Editor’s note: Our friends at Harvard’s Digital Media Law Project wrote this interesting post on the new, Newtown-inspired limits on public access to information about homicides in Connecticut. We thought it was worth amplifying, so we’re republishing it here.

digital-media-law-project-dmlp-cmlpAt a time when citizens increasingly call for government transparency, the Connecticut legislature recently passed a bill to withhold graphic information depicting homicides from the public in response to records from last December’s devastation at Sandy Hook Elementary School.

Though secret discussions drafting this bill reportedly date back to at least early April, the bill did not become public knowledge until an email was leaked to the Hartford Courant on May 21. The initial draft of what became Senate Bill 1149 offered wide protection specifically for families of victims of the December 14 shootings, preventing disclosure of public photographs, videos, 911 audio recordings, death certificates, and more.

Since then, there has been a whirlwind of activity in Connecticut. After a Fox reporter brought to the attention of Newtown families a blog post by Michael Moore suggesting the gruesome photos should be released, parents of children lost in the terrible shooting banded together to write a petition to “keep Sandy Hook crime scene information private.” The petition, which received over 100,000 signatures in a matter of days, aimed to “urge the Connecticut legislature to pass a law that would keep sensitive information, including photos and audio, about this tragic day private and out of the hands of people who’d like to misuse it for political gain.”

As this petition was clearly concerned about exploitation by Moore and others, Moore later clarified his position, emphasizing that the photos should not be released without the parents’ permission. Rather, he spoke about the potential significance of these photos if used voluntarily to resolve the gun control debate, in the same manner that Emmet Till’s mother releasing a photo of her son killed by the KKK influenced the civil rights movement.

Like the petitioners, members of the Connecticut legislature responded with overwhelming support for SB 1149. Working into the early hours of June 4, the last day of the legislative session, the state Senate and House approved the bill 33-2 and 130-2, respectively. The bill as approved exempts photographs, film, video, digital or other images depicting a homicide victim from being part of the public record “to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.” The bill particularly protects child victims, exempting from disclosure the names of victims and witnesses under 18 years old. It would also limit disclosure of audio records of emergency and other law enforcement calls as public records, such that portions describing the homicide victim’s condition would not have to be released, though this provision will be reevaluated by a 17-member task force by May 2014.

Though more limited in scope than the original draft with respect of the types of materials that may not be disclosed, this final bill addresses all homicides committed in the state, not only the massacre in Newtown. It was signed by Governor Dannel Malloy within twelve hours of the legislature’s vote and took effect immediately.

From the beginning, this topic has raised concerns with respect to Connecticut’s Freedom of Information Act and government transparency. In addition to being drafted in secrecy, the bill was not subjected to the traditional public hearing process. All four representatives who voted against SB 1149 raised these democratic concerns, challenging the process and scope of this FOI exemption. This blogger agrees that in its rush to appropriately protect the grieving families of Newtown before the session ended, Connecticut’s legislature went too far in promoting privacy over public access to records, namely with respect to the broad extension of the bill to all homicides and limitations on releasing 911 calls.

Though influenced primarily by the plight of those in Newtown, SB 1149 makes no distinction based on the gravity or brutality of the homicide, or any other factor that may relate to the strength of the privacy interest. Instead, it restricts access to traditionally public records for all homicides in the state, reaching far beyond the massacre at Sandy Hook. As the Chief State’s Attorney Kevin Kane said with respect to photographs depicting injuries to victims and recordings of their distress, “it seems to me that the intrusion of the privacy of the individuals outweighs any public interest in seeing these.” Pressure to expand the bill as Kane desired came primarily from advocates of the legislature’s Black and Puerto Rican Caucus. They criticized the fairness of differentiating between the protection owed to Newtown families and that due the families of homicide victims in urban areas, where homicides occur more frequently.

This fairness and equality based argument raises valid concerns about how the legislature is drawing the line between protected and unprotected records: If limited to the shootings at Sandy Hook, then in the future, what level of severity would make visual records of a killing “worthy” of exemption from disclosure? But an all-inclusive exemption like the one Connecticut passed goes too far in restricting the public’s access to important public records. It restricts public access to information so long as a minimal privacy interest is established, regardless of the strength of the interest in disclosure. While restricting the release of photos of the young children who lost their lives this past December is based in a strong privacy interest that far outweighs the public or governmental interest, the same cannot be said for every homicide that has occurred or will occur in the state. The potential lasting consequences of this substantial exemption from the FOIA should not be overlooked or minimized in the face of today’s tragedy.

SB1149 is also problematic in that it extends to recordings of emergency calls. While there is some precedent for restricting access to gruesome photos and video after a tragedy, this is far more limited with respect to audio recordings. Recordings have been made available to the public after many of our nation’s tragic shootings, including the recordings from the first responders to Aurora, 911 calls and surveillance video footage from Columbine, as well as 911 calls from the Hartford Distributors and Trayvon Martin shootings. While a compromise was reached in permitting the general release of these recordings, the bill includes a provision that prevents disclosure of audio segments describing the victim’s condition. Although there is a stronger interest in limiting access to the full descriptions of the child victims at Sandy Hook, weighing in favor of nondisclosure in that limited circumstance, emergency response recordings should be released in their entirety in the majority of homicide cases.

This aspect of the law in particular may have grave consequences for the future of the state’s transparency. Records of emergency calls traditionally become public records and are used by the media and ordinary citizens alike to evaluate law enforcement and their response to emergencies. The condition of the victim is an essential element of evaluating law enforcement response. As the president of the Society of Professional Journalists, Sonny Albarado, noted, “If you hide away documents from the public, then the public has no way of knowing whether police…have done their jobs correctly.” In other words, these calls serve as an essential check on government. As a nation which strives for an informed and engaged citizenry, making otherwise public records unavailable is rarely a good thing and should be done with more public discussion and caution than recently afforded by Connecticut’s legislature.

Connecticut’s bill demonstrates a frightening trend away from access and transparency. Colleen Murphy, the executive director of the Connecticut Freedom of Information Commission, has observed a gradual change in “toward more people asking questions about why should the public have access to information instead of why shouldn’t they.” It has never been easy to balance privacy rights with the freedom of information, and this is undoubtedly more difficult in today’s digital age where materials uploaded to the Internet exist forever. Still, our commitment to self-regulation, progress, and the First Amendment weighs in favor of disclosure. Exceptions should be limited to circumstances, like the Newtown shooting, where the privacy interest strongly outweighs the public’s interest in accessing information. As the Connecticut Council on Freedom of Information wrote in a letter to Governor Malloy, “History has demonstrated repeatedly that governments must favor disclosure. Only an informed society can make informed judgments on issues of great moment.”

Kristin Bergman is an intern at the Digital Media Law Project and a rising 3L at William & Mary Law School. Republished from the Digital Media Law Project blog.

Photo of Connecticut state capitol by Jimmy Emerson used under a Creative Commons license.

POSTED     June 11, 2013, 1:48 p.m.
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