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June 11 2013

17:48

Privacy versus transparency: Connecticut bans access to many homicide records post-Newtown

Editor’s note: Our friends at Harvard’s Digital Media Law Project wrote this interesting post on the new, Newtown-inspired limits on public access to information about homicides in Connecticut. We thought it was worth amplifying, so we’re republishing it here.

digital-media-law-project-dmlp-cmlpAt a time when citizens increasingly call for government transparency, the Connecticut legislature recently passed a bill to withhold graphic information depicting homicides from the public in response to records from last December’s devastation at Sandy Hook Elementary School.

Though secret discussions drafting this bill reportedly date back to at least early April, the bill did not become public knowledge until an email was leaked to the Hartford Courant on May 21. The initial draft of what became Senate Bill 1149 offered wide protection specifically for families of victims of the December 14 shootings, preventing disclosure of public photographs, videos, 911 audio recordings, death certificates, and more.

Since then, there has been a whirlwind of activity in Connecticut. After a Fox reporter brought to the attention of Newtown families a blog post by Michael Moore suggesting the gruesome photos should be released, parents of children lost in the terrible shooting banded together to write a petition to “keep Sandy Hook crime scene information private.” The petition, which received over 100,000 signatures in a matter of days, aimed to “urge the Connecticut legislature 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.”

As this petition was clearly concerned about exploitation by Moore and others, Moore later clarified his position, emphasizing that the photos should not be released without the parents’ permission. Rather, he spoke about the potential significance of these photos if used voluntarily to resolve the gun control debate, in the same manner that Emmet Till’s mother releasing a photo of her son killed by the KKK influenced the civil rights movement.

Like the petitioners, members of the Connecticut legislature responded with overwhelming support for SB 1149. Working into the early hours of June 4, the last day of the legislative session, the state Senate and House approved the bill 33-2 and 130-2, respectively. The bill as approved exempts photographs, film, video, digital or other images depicting a homicide victim from being part of the 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.” The bill particularly protects child victims, exempting from disclosure the names of victims and witnesses under 18 years old. It would also limit disclosure of audio records of emergency and other law enforcement calls as public records, such that portions describing the homicide victim’s condition would not have to be released, though this provision will be reevaluated by a 17-member task force by May 2014.

Though more limited in scope than the original draft with respect of the types of materials that may not be disclosed, this final bill addresses all homicides committed in the state, not only the massacre in Newtown. It was signed by Governor Dannel Malloy within twelve hours of the legislature’s vote and took effect immediately.

From the beginning, this topic has raised concerns with respect to Connecticut’s Freedom of Information Act and government transparency. In addition to being drafted in secrecy, the bill was not subjected to the traditional public hearing process. All four representatives who voted against SB 1149 raised these democratic concerns, challenging the process and scope of this FOI exemption. This blogger agrees that in its rush to appropriately protect the grieving families of Newtown before the session ended, Connecticut’s legislature went too far in promoting privacy over public access to records, namely with respect to the broad extension of the bill to all homicides and limitations on releasing 911 calls.

Though influenced primarily by the plight of those in Newtown, SB 1149 makes no distinction based on the gravity or brutality of the homicide, or any other factor that may relate to the strength of the privacy interest. Instead, it restricts access to traditionally public records for all homicides in the state, reaching far beyond the massacre at Sandy Hook. As the Chief State’s Attorney Kevin Kane said with respect to photographs depicting injuries to victims and recordings of their distress, “it seems to me that the intrusion of the privacy of the individuals outweighs any public interest in seeing these.” Pressure to expand the bill as Kane desired came primarily from advocates of the legislature’s Black and Puerto Rican Caucus. They criticized the fairness of differentiating between the protection owed to Newtown families and that due the families of homicide victims in urban areas, where homicides occur more frequently.

This fairness and equality based argument raises valid concerns about how the legislature is drawing the line between protected and unprotected records: If limited to the shootings at Sandy Hook, then in the future, what level of severity would make visual records of a killing “worthy” of exemption from disclosure? But an all-inclusive exemption like the one Connecticut passed goes too far in restricting the public’s access to important public records. It restricts public access to information so long as a minimal privacy interest is established, regardless of the strength of the interest in disclosure. While restricting the release of photos of the young children who lost their lives this past December is based in a strong privacy interest that far outweighs the public or governmental interest, the same cannot be said for every homicide that has occurred or will occur in the state. The potential lasting consequences of this substantial exemption from the FOIA should not be overlooked or minimized in the face of today’s tragedy.

SB1149 is also problematic in that it extends to recordings of emergency calls. While there is some precedent for restricting access to gruesome photos and video after a tragedy, this is far more limited with respect to audio recordings. Recordings have been made available to the public after many of our nation’s tragic shootings, including the recordings from the first responders to Aurora, 911 calls and surveillance video footage from Columbine, as well as 911 calls from the Hartford Distributors and Trayvon Martin shootings. While a compromise was reached in permitting the general release of these recordings, the bill includes a provision that prevents disclosure of audio segments describing the victim’s condition. Although there is a stronger interest in limiting access to the full descriptions of the child victims at Sandy Hook, weighing in favor of nondisclosure in that limited circumstance, emergency response recordings should be released in their entirety in the majority of homicide cases.

This aspect of the law in particular may have grave consequences for the future of the state’s transparency. Records of emergency calls traditionally become public records and are used by the media and ordinary citizens alike to evaluate law enforcement and their response to emergencies. The condition of the victim is an essential element of evaluating law enforcement response. As the president of the Society of Professional Journalists, Sonny Albarado, noted, “If you hide away documents from the public, then the public has no way of knowing whether police…have done their jobs correctly.” In other words, these calls serve as an essential check on government. As a nation which strives for an informed and engaged citizenry, making otherwise public records unavailable is rarely a good thing and should be done with more public discussion and caution than recently afforded by Connecticut’s legislature.

Connecticut’s bill demonstrates a frightening trend away from access and transparency. Colleen Murphy, the executive director of the Connecticut Freedom of Information Commission, has observed a gradual change in “toward more people asking questions about why should the public have access to information instead of why shouldn’t they.” It has never been easy to balance privacy rights with the freedom of information, and this is undoubtedly more difficult in today’s digital age where materials uploaded to the Internet exist forever. Still, our commitment to self-regulation, progress, and the First Amendment weighs in favor of disclosure. Exceptions should be limited to circumstances, like the Newtown shooting, where the privacy interest strongly outweighs the public’s interest in accessing information. As the Connecticut Council on Freedom of Information wrote in a letter to Governor Malloy, “History has demonstrated repeatedly that governments must favor disclosure. Only an informed society can make informed judgments on issues of great moment.”

Kristin Bergman is an intern at the Digital Media Law Project and a rising 3L at William & Mary Law School. Republished from the Digital Media Law Project blog.

Photo of Connecticut state capitol by Jimmy Emerson used under a Creative Commons license.

April 12 2012

12:14

October 21 2010

16:00

MuckRock makes FOIA requests easy, but will reporters use it?

Making freedom of information requests can be a daunting task. If it’s not an agency dragging its heels on releasing documents or asking for a fee large enough to buy a compact car, then it’s the actual process of the, well, process. You’ve got to identify the right agency, contact the right administrator, find out whether they take requests in the mail or electronically, and even then you’ve got to word your request precisely or risk ending up with liquor licenses when you wanted restaurant inspections.

It’s a system begging for simplification. While DocumentCloud is making it easier to wrangle and make sense of public records, MuckRock wants to make FOIA requests similarly effortless.

On its face MuckRock is a tool that allows journalists of all stripes (pro to amateur and in between) to make document requests easier. Think of it like Netflix: You tell MuckRock what you’re looking for and it provides suggestions, ultimately getting you what you’re looking for. But instead of Starship Troopers, you wind up with a nicely formatted request letter to your record agency of choice.

But in keeping with the idea of transparency, MuckRock also provides an online tracking service to see the progress of requests, and acts as a repository for all the records collected through the site.

“The idea we had was making a nice, modern interface for the end user on a very backwards, outdated, finicky process,” Michael Morisy, MuckRock’s co-founder told me.

The question, perhaps a bigger one than going from an analog system to a digital one, is whether journalists (particularly investigative ones known for being careful with their records) are willing to trade control over information (and potentially their scoop) for a streamlined, simplified FOIA process.

“The real tragedy is in a lot of cases a reporter will get hundreds of pages of government documents and they might use two or three sentences from them or might not use them at all,” he said. “And then they go into some filing room for all eternity where they’re lost.”

Morisy and co-founder Mitchell Kotler built a FOIA wizard of sorts that takes users through the steps of selecting federal or local agencies and the particular data they’re interested in. Among the options are areas like budgets, public contracts, sex offender lists and pet license information. From there MuckRock acts as an emissary, sending the request letter and providing the tracking tool to show whether the documents are being processed or are past due. Though the site currently only lists state and local data for Massachusetts, Morisy said they are hoping to expand. But the local level may be where MuckRock could have the most impact, making it easier for newspapers or local sites to create projects like a public employee salary database.

The idea was to build a service that anyone could use — a long-time journalist, a neighborhood blogger, or someone simply looking to get answers out of city hall. The value to bloggers or citizen journalists seems clear: Providing not just tools but guidance on the sometimes labyrinthian process of making document requests. But for journalists working at established media outlets, the pitch is a little more tricky. “We’ve kind of found our sweet spot right now is helping out anybody who’s at least that pro-am journalist or a community blogger,” said Morisy, who has written for the New York Daily News and Business 2.0. “But also the overburdened reporter who writes stories, blogs, tweets, and has to juggle investigations.” In theory, a new resource to help newsrooms expedite FOIA requests would be a help, particularly at a time when shrinking staff and rising demand on reporters may exclude investigative projects. In reality, experienced journalists are generally more comfortable undertaking FOIA requests themselves, if not for accuracy than to keep a story under wraps from competitors or the government itself.

“We want to give people as much control over what’s public and what’s private — the last thing we ever want to do is ruin a reporter’s scoop,” Morisy said. With that in mind, MuckRock now allows users to embargo their requests and documents for up to 30 days after receiving a response from an agency.

DocumentCloud, WikiLeaks, and attempts at crowdsourced document analysis show that technology has enabled better methods of obtaining, displaying and dissecting information. What may also need to adapt, Morisy argues, is the mindset around collecting and reporting on public documents. Journalists often have to commit to a balancing act, asking for documents only to keep them hidden away during their reporting, Morisy said. MuckRock encourages transparency by its design, Morisy said, and he hopes it encourages all journalists to make as much as their reporting open as possible.

“I think it’s important for people to see how these documents are obtained, and that it’s not just reporters that have access to documents — anyone can get them,” Morisy said.

September 28 2010

14:00

August 05 2010

22:58

How do you keep track of FOI requests, and what do you do with the responses after?

Do you have a organization-wide tracking system for FOI requests? A personal one? Do you just mark your calendar, "Bug state department for them darn files"?

And what about the results of your FOI requests? I'm always surprised how few news orgs put the actual documents online (documentcloud.org not withstanding) and so wownder: Do you have a organization-wide or personal filing system? Does it go into your news org library? Is this just lost to an internal memory hole?

June 03 2010

21:31

May 06 2010

18:26

Resources for Finding and Sharing Data?

"I'd love to know about a good resource for journalists and other people who already FOIA big data sets that will facilitate sharing and re-use of gov't data sets." --Amanda

Repositories: (Places to upload, share and visualize data)

Data sources/aggregators:

May 04 2010

15:22

Resources for Big Data Sets?

"I'd love to know about a good resource for journalists and other people who already FOIA big data sets that will facilitate sharing and re-use of gov't data sets." --Amanda

Repositories:

Data sources list:

March 08 2010

17:42

March 07 2010

22:34

December 10 2009

07:15
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