Connecticut FOI advocate says law after Sandy Hook shootings protecting photos goes too far

ColleenMurphy

Colleen Murphy, executive director of Connecticut’s Freedom of Information Coalition, is on a task force weighing homicide victims’ privacy under the Freedom of Information Act with the public’s right to know.
(Photo provided by Colleen Murphy)

About three months after the December 2012 shooting at Sandy Hook Elementary in Newtown, Conn., left 20 first-graders and six adults dead, filmmaker Michael Moore, writing on the Huffington Post, suggested the gruesome photos from the crime scene be voluntarily released by families to “finish off the NRA” in the gun control debate.

In response, the families posted a petition on Change.org that collected 100,000 signatures urging Connecticut legislators “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.”

It set into motion what became Senate Bill 1149, a blanket ban state lawmakers passed June 5 barring disclosure of all investigatory photos of homicide victims for one year.

The ban exempts all images and audio records relating to a homicide victim’s condition from 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.”

It  soared through both chambers in a matter of 45 minutes and was swiftly signed into law by Gov. Dannel P. Malloy.

But for Colleen Murphy, executive director of Connecticut’s Freedom of Information Coalition, the decision requires more deliberation—not because homicide photos should litter the Web, but because fast-made, short-sighted changes to the state’s long-standing Freedom of Information Act could give rise to overly broad interpretations and unforeseen consequences.

“We all want to prevent any further pain to people affected by this tragedy, but having that emotional reaction without trying to put other safeguards in place can be risky,” Murphy said.

The law was born behind closed doors in secret meetings among the governor’s staff, legislative leaders and the state’s top prosecutor. It bypassed the traditional public hearing process and was signed into law within 12 hours of the vote.

Along the way, the exemptions in the bill were expanded from Newtown-specific privacy protections to include protections for all homicide victims when the the Black and Puerto Rican Caucus of senators and House members argued that lone victims on city streets should be entitled to the same respect as the Newtown victims and their families.

“There was a desire to protect the families without thinking through all of the consequences for the future,” Murphy said.

Luckily, the law also includes a statute requiring the creation of 17-member task force to watch its applications and make recommendations assessing the “balance between victim privacy under the Freedom of Information Act and the public’s right to know.”

As executive director of the state FOI coalition, Murphy was automatically appointed to the task force, and other members were supposed to be selected by July 1.

But the Newtown city administration missed a deadline to appoint selections to the force, and Murphy said details about the whole process are still murky.

The group is supposed to convene by Aug.1 and meet at least once a month thereafter until December so it can make recommendations to the General Assembly on Jan. 1.

Until it happens, Murphy has been lying low and attempting to advise the FOIC about how to apply the new law.

Before the June ruling, Connecticut’s FOIA already made exemptions for law enforcement records and invasions of privacy.

But Murphy said these law enforcement exceptions largely pertained to information used in ongoing investigations, and since there is no ongoing investigation in the Newtown case, it was unclear whether Newtown photos were already protected— especially since Connecticut’s privacy standards expired when a person died.

The new law extends a dead person’s privacy to his or her family members beyond the grave regardless of an ongoing investigation.

But Murphy said permitting privacy protections for family members opens the door to complaints from friends and other stakeholders who might argue that releasing a homicide victim’s photo infringes their privacy, too.

“The question is: How broad do we get here?” Murphy said. “How much leeway do public officials have if they’re getting requests for a certain record, and whose privacy are they looking at to see if it’s invaded?”

She argued that in the 2004 Supreme Court ruling, National Archives & Records Administration v. Favish, the nebulous phrase “unwarranted invasions of privacy” was used to thwart investigations about the suspicious death of high-ranking White House lawyer Vincent Foster.

When Foster was found dead in 1993 with a gunshot wound in his head and revolver in his right hand, attorney Allan Favish requested access to more than 100 photos of Foster’s body at the scene of his death and during his autopsy.

Foster’s family didn’t want the photos released because two government investigations already ruled Foster’s death was suicide. Even so, Favish thought the government rulings were a cover-up for murder because Foster was involved in the investigation of possible fraud by the Clinton family in the Whitewater real estate venture.

A lengthy legal battle landed the debate in the Supreme Court where the court ruled for the first time that family members of a deceased person have the legal authority to block the release of photos of that person on grounds of an “unwarranted invasion” of family privacy.

Although that case was a major disappointment for public access advocates, Murphy said she’s seen similar language used to block even family members from details about their loved one’s death.

Just last month the Rhode Island attorney general’s office told the sister of man who hanged himself in a state prison that she did not have the right to see a police narrative detailing her brother’s death investigation.

The attorney general justified withholding the information on grounds that releasing the narrative “could reasonably be expected to constitute an unwarranted invasion of (her family’s) personal privacy rights,” even though she—a family member—requested it.

“When you think about that, it gives you a lot of pause about this issue and putting the (‘unwarranted invasion of privacy’) standard in there,” Murphy said. “It’s something I’ll be watching closely.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

Full disclosure: SPJ National president Sonny Albarado and Connecticut chapter president Jodie Mozdzer Gil wrote a letter to Gov. Malloy on May 23 questioning Connecticut lawmakers’ secret deliberation and their decision to restrict access to public records and photos. Albarado and Gil wrote: “We have seen similar efforts in other states to close access to routinely available information about crime and victims of crime in the misplaced belief that secrecy protects victims and witnesses. This legislation does not honor the victims of the Newtown shooting, and the tragedy should not be used as an excuse to close access to public documents, the release of which does not change the circumstances surrounding the Newtown massacre. In fact, their release could debunk conspiracy theories and provide lessons worth learning.”

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