‘The burden is shifted to public away from the government’

The following piece was written for the New England First Amendment Center, at Northeastern University in Boston:

When Connecticut legislators met in secret last session, working with the families of the victims of the Sandy Hook Elementary School shootings, they came out from behind closed doors long enough to pass legislation making secret crime scene photos and certain 911 tapes of every homicide in the state henceforth.

The legislature also created a task force to study the balance between victim privacy and the public’s right to know, but stacked the 17-member body with privacy advocates. I am among the seven members clearly in favor of transparency.

When state Superior Court Judge Eliot Prescott, after listening to arguments last month from Danbury State’s Attorney Stephen Sedensky to keep the 911 tapes secret, ordered them released, Chief State’s Attorney Kevin Kane urged his fellow task force members to get moving and recommend laws that provide for more secrecy.

The task force has been meeting since August, and has adopted recommendations this month that would allow limited access to crime scene photographs, 911 recordings and other audio or video depicting the condition of homicide victims. The access recommended would be for citizens and journalists to listen to the audio tapes or view the photographs or visual images so long as copies are not made. It also creates a process for requesting copies which would shift the burden to the access seeker to show it is not an “unwarranted invasion of personal privacy” to release the copies.

This recommendation came after months of meetings where the viewpoints of open government advocates and victims’ advocates were in sharp relief. It is clear, listening to the tapes of staffers at Sandy Hook School calling 911 while the shooting and killing was going on, that our society has things it must learn from those tapes. Law enforcement experts are now debating whether Newtown police responded correctly. Those tapes also show the courage of school staff and the calm and professionalism of police dispatchers.

Proponents of privacy sought to get rid of Connecticut’s “Perkins test” on releasing information about crimes, and “codify” the federal “Favish” standard, which essentially shifts the burden of proof from the government to the public on showing why investigative files should be made public. The problem with the Supreme Court Favish decision, keeping the photos of Clinton adviser Vince Foster secret, is that it requires a citizen to prove the photos are of legitimate public interest, but does not allow the citizen to see the photos.

The Connecticut Supreme Court Perkins decision has been the guide for releasing information for more than two decades. In order for information held by the government to remain hidden, the government must show that the information sought is “highly offensive to a reasonable person” AND is not of “legitimate public concern.” Both standards must be met, or the information is public.

Traditionally, Connecticut has been viewed as a state with enviable FOI statutes, but the voices of privacy are touting federal “standards,” masking how the federal FOI laws are limpid compared to Connecticut’s.

The stated aim to “protect” Newtown families expanded to include the families of victims of all homicides when inner city legislators argued that the state is shielding white suburbanites and ignoring the plight of minorities. Presented with data that showed case after case of law enforcement malfeasance against minorities (the Connecticut chapter of the ACLU testified that 80 percent of police taserings in the state are against minorities) some task force members are rethinking the wisdom of closing files to the public. There is justice to be found in those files.

Co-chair of the task force Angel Arce, who represents Hartford in the state House of Representatives, issued a statement acknowledging that “constituents of urban districts … are more likely to be victimized by crime but they are also more susceptible to police abuse and mistreatment. We must have public oversight of law enforcement agencies and the criminally accused must have the capability to obtain information needed for their defense. I recognize that this is best accomplished through public disclosure of government records.”

But then he was also one of the members of the task force most vociferous in keeping that information from the public. Like all the privacy advocates, he says “I am confident that a balance can be struck in which we protect the dignity, privacy and safety of crime-victims and witnesses, but preserve the tools that are necessary to hold government accountable.” In the end, he supported the proposal exempting from copying crime scene images of homicide victims if the images “could reasonably be expected to constitute an unwarranted invasion of privacy.”

He espouses codifying the Favish standard, defining an invasion of privacy as “being ‘warranted’ if a requestor produces evidence sufficient to warrant a belief by a reasonable person that: 1. A government official acted negligently or otherwise improperly in the performance of his or her duties; and 2. The image requested is likely to be probative of such negligence or impropriety.”

The burden is shifted to public away from the government.

He supports the change to the law last year that puts off limits “that portion of an audio tape or other recording where the individual speaking . . . describes the condition of a victim of homicide.”

Chief States Attorney Kane, a task force member, supported permanently making that language the 28th exemption to the state FOI law. When the law passed in 1975 there were 10 exemptions.

The current compromise recommendation, brainchild of Klarn DePalma, general manager of WFSB-TV in Hartford and a task force member, would set up a depository for crime scene photos and allow copying only in cases where the requestor can show there is not an “unwarranted invasion of privacy.”

As president of the Connecticut Council on Freedom of Information, I am not seeking compromise. I hoped to see the restrictions the legislature passed last year repealed, and that the long-standing FOI laws on release of crime scene photos and 911 tapes, reinstated.

Now that the task force has prepared a report to the legislature, legislative leaders have promised the public hearings they did not have last session. Let us hope they keep their word.

Many transparency advocates have testified before the task force. A sampling:

“The passage of new legislation … modifying the Connecticut Freedom of Information Act severely damages the strength of what has been heretofore a model freedom of information regime . . . (and limits) understanding the truth.” Rosanna Cavanagh, NEFAC executive director

“Connecticut is heading down a dark path … becoming one of the more secretive in the nation… Connecticut (is now) ranked 25th in the nation … with these provisions it sinks into the more secretive part of the country. It’s now what I call a dark state … worse than New York and New Jersey.” David Cullier, PH.D., president of SPJ, director, School of Journalism, University of Arizona, Tuscon.

“There is no area where public transparency is more vital than in the administration of justice … when the police and prosecutorial powers of the state are exercised in the name of society at large … the public good requires a way to expose mistakes, inadequacies or misconduct in the criminal justice system.” Claude Albert of CCFOI

“The 29th Amendment to Connecticut’s Constitution addresses victim’s rights, but nowhere in that provision is there mention of ‘victim privacy.’ There is a very good reason for this omission. The amendment does require that victims be accorded ‘fairness and respect’ but nowhere in the constitution, either explicitly or implicitly, do victim rights override the fundamentals of all criminal law: 1. Criminal prosecutions are brought by the government on behalf of society as a whole; 2. The justice system is accountable to the people, as is the rest of government in a democracy. 3. Because of the extraordinary powers conferred by the people on the police, prosecutors and courts, fairness for the accused and transparency to society are the essential prerequisites to the credibility of the criminal justice system.” Mitchell W. Pearlman, retired executive director of the Connecticut FOIC.

“Government, our forefathers taught us, is susceptible to all sorts of unscrupulous pressure. After the mass killings at Columbine High School in 1999, the Jefferson County Sheriff’s Department knowingly withheld vital information from the public — and more importantly — from the families of the victims themselves for five years. Why? To avoid the possibility of embarrassment and lawsuits. . . Keeping information from the public can actually have the effect of enflaming opinion. At Columbine and at Newtown, conspiracy theorists were at work almost immediately. Facts — clear-eyed information — are the best, and possibly the only, antidote to such unbridled speculation.” Jonathan Kellogg, executive editor of the Waterbury Republican and past president of NESNE.

James H. Smith is president of the Connecticut Council on Freedom of Information and a former executive editor of the Record-Journal.



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