OP-ED | Balancing Act
The strong, specific recommendations of the Connecticut Task Force on Victim Privacy & The Public’s Right to Know have now been submitted to the legislative leadership. The votes for them were overwhelmingly affirmative, no less than 14-3 in a group where many observers thought the split would likely, at best, be 9-8.
Intense negotiations took place over many weeks. Indeed a true spirit of compromise between the side for more openness in government and the side for more consideration to victims families was required to produce these recommendations. They represent the best that both sides could achieve through mutual agreement. As such, they also represent the best hope for a more broadly acceptable public policy than the one so strongly criticized when the Freedom of Information Act was amended last year.
At that time, in reaction to a false rumor of the imminent release of horrifying images and sounds from the Sandy Hook school massacre, legislative leaders truncated the normal process for passing legislation so as to get exemptions on the books before the legislative session ended.That law is in effect today. Yet, tactfully that same law also created the task force whose recommendations for revisions to it are now presented for formal review. One must assume that leaders—more time for proper consideration being available—will assign the recommendations to the appropriate legislative committees. Public hearings should be scheduled. Members of the task force, expert witnesses, victim family members, and the general public should all have an opportunity to be heard. And there should be debate among legislative committee members too, all aimed at improving the 2013 law.
To be clear, the task force’s recommendations with regard to visual and audible homicide evidence apply solely to materials initiated by or collected within Connecticut by state and municipal law enforcement. We do not address, nor should we have addressed, materials created or collected independently by the citizenry at large. Whatever one may think of the propriety of publication or distribution of such materials, clearly, under the First Amendment, they are subject only to the judgment of the person or persons who created them. Our recommendations do not apply in any way to the First Amendment rights of any citizen.
For myself, I am most pleased that overwhelmingly the task force’s recommendations reaffirm the public’s right to inspect and review all official documents and materials, both audible and visual, associated with homicides. Working journalists on the task force voted for these recommendations despite the proposed necessity for material review to take place within the custodial agency. The prudent conditions we accept do not diminish our emphasis on maintaining the principle of full public availability. Indeed, we provide a prospective framework to allow the public access without the risk of the release and subsequent dissemination of horrifying photos and videos.
Several of us would, I am sure, have preferred a simpler means by which to gain access to these otherwise public materials. However, mindful of the certain public revulsion from the gruesome nature of some materials, particularly those from the scenes of multiple homicides, a large majority of the task force came to believe that guaranteed public access, albeit without immediate general distribution, is preferable to no public access at all, which is what the 2013 law provides. Within the recommendations we also foresee the need to protect against potential governmental misdeeds by inserting a reasonable appeal process. This could provide full public release through the already existing law and, if necessary, the courts.
Adopting the task force recommendations into law this year should again place Connecticut at the forefront among the states in providing guaranteed public access, even in the matter of heinous murder, to official documents, photos, and videos.
Implicit in our mission from the legislature last year was a plea for us to consider what had been passed in haste and to recommend any remedies we found appropriate. We worked for six months, held numerous public meetings, and several public hearings. We debated among ourselves frequently and sometimes heatedly. At the end a super majority of a most diverse and opinionated task force agreed it is possible to balance victim privacy and the public’s right to know and to do so in a way that protects both.
Don DeCesare was the co-chairman of the Connecticut Task Force on Victim Privacy & The Public’s Right to Know.