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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.

December 21 2009

15:45

KNC 2010: Homicide Watch D.C. focuses reporting on the victims

[EDITOR'S NOTE: We're highlighting a few of the entries in this year's Knight News Challenge, which just closed Tuesday night. Did you know of an entry worth looking at? Email Mac or leave a brief comment on this post. —Josh]

Laura Norton honed her crime-reporting skills in two years as a cops reporter at the Santa Rosa Press-Democrat. Now Norton, a freelancer in Washington, D.C., wants to build a new way to gather information on that city’s murders. (There have been 135 D.C. homicides so far in 2009.)

With Homicide Watch D.C., she wants to aggregate a variety of web-based resources — everything from official court documents to news reports to posts on Facebook and MySpace — and then create layers of context through original reporting. And here’s the hook: All that information will be constructed around the victims, not the crimes.

What she’s proposing is a mashup of crime visualizations, homicide blogs, social media tools, and the online gathering places offered by the likes of Legacy.com. The “victim pages” would be driven by an extensive database custom built for the project. Here’s a rough prototype from Norton’s proposal, built around De’Vante Glober, a 16-year-old shot and killed on Jan. 7:

There’s a public service component to this as well. News organizations can’t cover every homicide, and they rarely go beyond cursory details on the few stories that do bubble up. This project attempts to fill that coverage gap for the people who need it most: family members and neighbors.

“I think that when a crime happens in a neighborhood, people search for this,” Norton said. “And when you have a homicide every three days, which is what D.C. averaged the first half of the year, news organizations can’t get to that so easily.”

November 04 2009

15:04

How a blog, a camera, and a court are feeding journalism’s long tail

When people talk about the long tail, they often focus on consumer goods, where the infinite shelf space at a company like Amazon or Netflix allows a huge variety of products to be sold. But the same concept can apply to news, where cheap servers make it possible for hyper-targeted coverage — the stuff that only appeals to a few hundred people — to live online with few concerns about space or scarcity. Toss in search engines and dead-simple publishing tools and you’ve got a bounty of easy-to-find, niche-friendly content.

Whether intended or not, Ron Sylvester is stocking the long tail. The veteran crime and courts reporter for The Wichita Eagle uses his blog What the Judge Ate for Breakfast to publish two-minute videos that dive into the intricacies of a courthouse. They’re fascinating clips, touching on everything from the role of prosecutors, to odd defendant behavior, to the less glamorous responsibilities judges assume. These glimpses into the life of a court are classic examples of long tail content: the type of stuff that would never see the light of day on traditional platforms.

It makes sense that something like this would come from Sylvester. He was one of the first beat reporters to jump on the Twitter bandwagon, tweeting updates from the courtroom. The positive response to the Twitter coverage encouraged him, and he started looking at different techniques for covering his beat. “There’s so much human drama in the courthouse,” he said. “I’m trying to find ways to expand the coverage and use multimedia to do that.”

What the Judge Ate for Breakfast (the name comes from a quote attributed to Jerome Frank) launched in early 2008 as an ancillary outlet to Sylvester’s court coverage. It initially featured interesting asides and courtroom miscellany, all delivered as regular text-based blog posts. Sylvester started mulling bigger ideas about a year into the site, and his growing interest in video dovetailed serendipitously. “I was kind of jealous of TV,” Sylvester said. “I wished people could actually hear some of this testimony and see the expressions instead of me describing it to them.”

With the help of colleagues in the Eagle’s photography and web departments, Sylvester cobbled together equipment and started learning. The first video in the series — which runs under the title “Common Law” — appeared in July, and he’s now posting a minimum of one new clip per week.

Juggling platforms and coverage

What the Judge Ate for Breakfast is part of The Wichita Eagle’s website, Kansas.com, but it isn’t Sylvester’s full-time gig. He juggles platforms, producing coverage for print, web, Twitter and the Common Law series. When journalism schools teach “multimedia journalism,” Sylvester is the kind of reporter they’ve got in mind.

The essential skill of multimedia reporting, Sylvester told me, is knowing how to match content, medium, and audience. Twitter requires brevity. Long-form print and web demand context. Blog posts, particularly those driven by video, need to be short and engaging.

That’s why you won’t find Common Law videos in Sylvester’s traditional coverage. The point is to offer something different for the audience and appropriate for the medium. Take a look at one of Sylvester’s favorite clips as an example: it’s a piece that follows sheriff’s deputy Dioane Gates as he unexpectedly arrests someone he knows. This is one of those slice-of-life tangents that typically gets cut when space is limited and a deadline looms. Recognizing that this is a story and then finding a place for it is where a skilled multimedia reporter shines. Otherwise, you’d never see this stuff.

A look inside the tool box

The role Sylvester plays varies with the subject matter. Big cases require a team, so for something like the upcoming trial of Scott Roeder, Sylvester tweets from the courtroom and provides print and web copy, while one photographer manages pool photos and a second grabs video from the TV feed and sends it to the website.

Sylvester handles all the coverage for smaller trials and hearings. His equipment needs can shift from case to case, so he rolls around a briefcase that holds a Canon HV20 camcorder, a Sennheiser EW100 wireless microphone, a MacBook Pro with Final Cut Express, and a collection of wires and A/V accessories. The jumble of gear occasionally raises eyebrows at the courthouse’s x-ray machine. (It also summons memories of a certain senator’s previous career.)

Posting new Common Law videos is a simple process: Sylvester uploads clips to VMIX, a video encoding service used by McClatchy papers, and then he adds video embed code to a new blog entry. The hardest part is the editing, which can take up to two hours. “It’s like writing a story,” Sylvester said. “You’ve got to try to get it down to two minutes, but capture the essence of what’s going on.”

Watch a few videos and you’ll see that Sylvester weaves in B-roll shots (e.g. a judge listening to an attorney). Sylvester only has one camera, so a “listening judge” clip may come from earlier or later in the hearing. That’s not a huge issue since most Common Law clips revolve around a concept rather than strict coverage, but Sylvester does limit B-roll footage to shots from the same hearing.

How Sylvester gets in

Kansas allows cameras in the courtroom at the judge’s discretion, so Sylvester coordinates his weekly coverage needs in advance. Whipping out a video rig isn’t a surprise most judges would welcome.

Access is made easier because Common Law clips almost always revolve around a de facto “cast”: public defender Lacy Gilmour, prosecutor Marc Bennett, sheriff’s deputies David Rank and the previously-mentioned Dioane Gates, and Judge David Kaufman, whom Sylvester has known since before he wore a robe.

Sylvester credits his 30-plus years in journalism and nearly 10 years on the court beat as keys to greasing the skids. “They’re letting me into places and through doors that normally we wouldn’t go [through],” he said. “You have to have trust in order to do that.”

Forget the numbers

Sylvester declined to share website stats, citing corporate policy. You can get a rough sense of traffic to Kansas.com’s blog section here, and Sylvester did note a gap between his regular coverage, which is often among the most popular stories on Kansas.com, and the limited gravitational pull of What the Judge Ate for Breakfast. That’s the big problem with the long tail of content: small audiences lead to tiny metrics, and those are tough to swallow even when you can rationalize the results.

Sylvester, who knows the humbling sting of web traffic, has a solution: when it comes to beat reporting, forget the numbers. “I’m like everybody else, I like to look at the numbers every once in a while,” he said. “But on this one I’ve stopped. I want to concentrate on producing good content, because I really do believe that as more people get their information on the Internet, I think that good content is going to win out.”

That’s not to say Sylvester disregards all forms of measurement. He just places more importance on the feedback he gets from readers and courthouse staff. “This blog is an extension of the beat,” he said. “This may not get huge numbers, but the people I deal with everyday like it, and it’s building credibility.”

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