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OP-ED | In Defense of The Public’s Right To Know

by James H. Smith | Feb 24, 2014 12:11am
(4) Comments | Commenting has expired
Posted to: FOIA, Opinion, Transparency

Crime is a problem in the United States and in Connecticut. A big problem.

The people hire police and other first responders to protect them from crime. It is clear in the deliberations of the Task Force on Victim Privacy and the Public’s Right to Know that law enforcement personnel have become too entangled with victims and the families of victims after crimes, horrendous crimes, are committed.

Aside from the duty to investigate and solve crimes, it is not the job of police to expend resources on victims and their families. The people pay the staff of the Office of the Victim Advocate to assist the families of victims. All the police personnel and time spent there, is time and resources not spent protecting the public – all the people – whom they are paid to protect. It is a disturbing trend to see police posted outside the homes of victims’ families, or to hear threats from officials that news reporters’ vehicles will be ticketed or jaywalking statutes will be strictly enforced.

Now, with this vote recommending more secrecy in law enforcement actions, the people the police are supposed to serve will be denied information they deserve to know about crimes and how they are solved or not solved.

The General Assembly leadership and the governor appointed this 17-member Task Force, of which I was a member, with a built in 9-member majority favoring privacy and secrecy. Although there was much expert testimony and many written submissions presented on the people’s right to know, there was very little analysis given to, or evaluation of that testimony and those viewpoints beyond a few questions asked of some of those testifying.

It is historic fact that police, particularly the state police, consistently violate the state’s Freedom of Information laws by refusing to release nonexempt information about ongoing criminal investigations.  There are specific exemptions: signed statements of witnesses, investigatory techniques not otherwise known, uncorroborated allegations, for example. Otherwise, documents are presumed to be public, but the FOI Commission docket is clogged with complaints from citizens and the press seeking public information the police routinely withhold.

If the legislature adopts the recommendations of this Task Force, it will make it easier for law enforcement to keep secret what the people in a free and open society should know. In the name of sympathy for those families who have suffered from crimes against them, too many public servants are opting to deny the public its right to fully understand the violence being committed. It often has been the families of victims who need FOI access to law enforcement records to show malfeasance or misfeasance and to find justice.

We should not have to make judgments on public policy based on half-truths or partial truths or emotions. It is better to solve society’s ills knowing the whole truth or as much of the truth as we can know. So, for example, when this Task Force recommends putting 911 tapes off limits, tapes that have always provided first-hand knowledge to the public about criminal activity, it is a move away from accountability, away from understanding, and away from trying to solve the problems of violence in our culture.

The proponents of “privacy” have offered a small window into what historically has been open to the public – a place in a police department where someone can look at crime scene photos and listen to 911 tapes, but not copy them except through a long and laborious process.

The Task Force has proposed permanent harm to Connecticut’s historically highly-regarded FOI laws. It has turned the system on its head, for the first time pushing the burden of proof from the government to the people. It has always been in this democracy that the government must show why a document can remain hidden from the public. Now it is proposed that the people must show why it should be released to them. The Task Force recommends eschewing our long-held “Perkins” test in favor of the watered down federal “Favish” standard.  An “unwarranted invasion of privacy,” (Favish) is a standard that makes it easier to keep something secret than our traditional two-pronged test (Perkins) requiring the government to show that the information sought is “highly offensive to a reasonable person AND does not pertain to a matter of legitimate public concern” in order to be withheld from public scrutiny.

I will venture to say, though I will let them speak for themselves, that the SPJ appointees voting with the majority did so to preserve at least that little crack of openness provided in the “compromise.” I cannot imagine they approved of the shift of burden of proof or the lower bar in the “unwarranted invasion of privacy” standard.

The federal FOI system has been recognized for decades as being inferior to Connecticut’s. Republican state Sen. Lewis B. Rome, rising to support passage of our FOI statue in 1975, called it “landmark legislation.” He observed that, “It is unfortunate that the atmosphere in Washington is . . . such that they would not consider adopting the very same kind of language . . . I hope that we would unanimously support the legislation as witness (to) our good intentions and good faith in the idea that government belongs to the people.”

Sen. Rome got his wish. The General Assembly unanimously approved our FOI statue and Gov. Ella Grasso, who had campaigned for FOI legislation with statements like “people are tired of a state government that hides its acts behind a curtain of secrecy,” signed it into law. She promised a government that is “open, honest, vital and concerned.” She won the election, the first woman in the United States ever elected in her own right to be a governor, by some 204,000 votes, the second highest margin of victory in the state up to that time.

The legislature should still heed Mr. Rome and Mrs. Grasso and reject the recommendations of this Task Force.

James H. Smith, president of the nonprofit Connecticut Council on Freedom of Information, and a retired newspaper editor, was a member of the Task Force on Victim Privacy and the Public’s Right to Know.

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(4) Comments

posted by: Noteworthy | February 24, 2014  8:29am

Amen. Amen. More directly, the recommendations of this task force should not only be rejected, but Connecticut’s FOI laws should be updated to include sanctions, written and financial that cost public employees and public officials real money when they violate the law. Our FOIA laws are weak and there is no penalty for violating it. With precious few exceptions, every scrap of paper and every hearing, meeting and conversation about public policy or investigatory effort should be subject to FOI. It is work product paid for with our hard earned dollars. It is really lame to demand our money to pay for secrecy and in many times, deception about what is really going on in the octopus like state and local government.

posted by: DrHunterSThompson | February 24, 2014  8:42am

DrHunterSThompson

Hard to disagree.

Thanks for the insight into the task farce.

HST

posted by: bob8/57 | February 24, 2014  10:09am

bob8/57

A close-up of how we slip into an autocratic oligarchy. It’s already too late.

posted by: Daniels Jeffrey | March 1, 2014  12:54pm

Great points.  The continued need for CT residents to have access to and the right to virtually all information on what their government does needs to be protected.  It should not be subject the vagaries of particular events that take our eye off the important principle…the best government is one that does all its business in the open.