Senate President Blasts FOI Restrictions; Others Say Post-Newtown Bill Strikes Balance

March 12, 2014

The state Senate’s top leader escalated his criticism Monday of proposed legislation which, in reaction to the 2012 Newtown school killings, would significantly restrict citizens’ right to obtain law enforcement records such as tapes of 911 emergency calls, crime photos and identities of witnesses.

Senate President Pro Tempore Donald E. Williams Jr., D-Brooklyn, urged rejection of the legislation at two legislative committees’ public hearings, during which privacy advocates, including lawyers for the 26 Newtown victims’ families, debated with freedom-of-information activists over two essentially identical bills to restrict public disclosure.

“This legislation is unnecessary. It is not only counterproductive — it is destructive,” Williams said in separate appearances before both the judiciary and government administration committees.

“If enacted, this would result in an unprecedented denial of previously available information, with no necessary relation to witnesses being threatened or endangered, and no relation to the security of an investigation,” Williams said. “It is a suppression of information for its own sake.”

The bills were recommended by a legislative task force formed last year to study Newtown-related issues of privacy versus disclosure, in reaction to some Newtown victims’ families requests that records never be released. Williams had signaled his opposition to the task force’s ideas in a Courant interview on Feb. 5, the first day of the 2014 legislative session, but on Monday he escalated his rhetoric, even quoting Lincoln.

“Abraham Lincoln said, ‘Let the people know the facts and the country will be safe,'” Williams said. “Years later Walter Lippmann said, ‘The theory of a free press is that the truth will emerge from free reporting and discussion, not that it will be presented perfectly and instantly in any one account.'”

Williams controls the agenda in the Democrat-controlled Senate — and he said he’ll oppose any Senate vote on the legislation. “It would be my strong advice to our caucus that we not take this up,” Williams told reporters outside a hearing room.

But the Senate leader’s testimony was far from the last word. Several freedom-of-information advocates agreed with him — but a number of officials and citizens said that the bills recommended by the 17-member “Task Force on Victim Privacy and the Public’s Right to Know” strike the right balance between the public’s right to know and victims’ privacy.

Chief State’s Attorney Kevin Kane, the state’s top prosecutor and a member of the task force, said the government has dual obligations. One, he said, is to protect the public’s right to “information about the governmental bodies, so that the public can evaluate the performance of those bodies” — and the other “is to treat people with dignity and respect.”

The proposed legislation accomplishes both, Kane said. It’s “very precise” — dealing with “visual portrayals of the injuries or the conditions of a body of the victim of a homicide,” and with “recordings containing … the frightened, scared, emotional calls of a 911 caller … reporting that they are about to be murdered. … And we’ve literally had their murders recorded on tape.”

Police investigating crimes need to take pictures, for example, that “infringe on the dignity and the privacy of victims,” Kane said.

“Just like government requires law enforcement to investigate crimes, the government has a responsibility to treat this information sensitively and to not impair on the privacy or the dignity of the victims … unless there is an important reason to do so,” Kane said. Sleazy websites on the Internet are willing to pay a lot of money for celebrities’ autopsy photos, Kane said.

Kane said that the legislation balances the public’s right to know with victims’ privacy by allowing a member of the public to go to a law enforcement agency office to inspect a photo or video of a crime scene, or to listen to a recording of a 911 tape — and to “make notes.” But, if “the agency reasonably believes that the copying of the image or audio recording would constitute an unwarranted invasion of personal privacy,” it “shall not provide a copy,” the bill says.

Denial of a copy could be appealed to the state FOI Commission under the bill. But FOI advocates — including representatives of the Connecticut Council on Freedom of Information — said that the bill would create a cumbersome procedure enabling law enforcement officials to delay release of information for months or years via administrative appeals and court cases. This could delay or negate potential reforms of the law enforcement system resulting from disclosures, they added.

Even worse, the FOI advocates said, this procedure in the legislation also would reverse the burden of proof under the state’s FOI Act dating back four decades. Up to now, it’s always been the government’s burden to show why a document shouldn’t be released; this would improperly put the burden on a citizen to prove why the government should release a copy of the document – in other words, why its release is “warranted,” they said.

Attorney Dan Klau, testifying for the Connecticut Bar Association, said in written testimony: “Not a single person who appeared before the Task Force … presented testimony or evidence of a past disclosure of a government document, pursuant to an FOIA request, that actually resulted in the widespread dissemination, via the traditional media or the Internet, of: 1) graphic crime scene photographs; 2) embarrassing or humiliating 911 calls, or 3) documents identifying witnesses that put the witness at risk of harm or caused embarrassment or humiliation. The legislature should not curtail the public’s cherished right to access to government documents based on conjecture and speculation.”

Lawyers for the Newtown victims’ families submitted written testimony saying they want lawmakers to stick with the strict restrictions on disclosure contained in controversial June 2013 legislation. That legislation was passed at the last moment of the 2013 General Assembly session without a public hearing, but with the understanding that a task force would recommend a permanent resolution this year.

The lawyers said the provisions in the new bill — which Kane praised as striking the right balance, and FOI advocates, along with Williams, decried as too strict — are too weak to protect victims adequately.

“We understand the interest of the public in having access to public documents,” the lawyers, Morgan Rueckert, said in written testimony. “We appreciate how the … bill tries to balance those concerns. However, to us and the families of all homicide victims, these are not public records — they are pictures of our family members in their final horrific moments.”

At the hearing Rueckert said that it’s an unwarranted invasion of privacy to let someone inspect a photo of a homicide victim, even in private without the possibility of the image being made public.

from Hartford Courant – by Jon Lender