Secrecy wins, but discussion continues

Any erosion of the public's right to know, any prohibition on access to evidence that can independently assess the fairness and thoroughness of criminal investigations, is reason for concern. We therefore object to the legislature's decision to approve a blanket prohibition on the release of and access to photos of homicide victims. It is also objectionable that the legislation results from discussions that took place in secret and bypassed the normal committee and public hearing process. It is thick irony that elected leaders, including Gov. Dannel P. Malloy, used such backroom dealing to corrode Connecticut's Freedom of Information law.

The legislation is a reaction to the Dec. 14 massacre of 20 children and six educators at the Sandy Hook Elementary School in Newtown by a lone, suicide gunman. Families of the victims have expressed their objections to making photos and other records related to the crime available to the press or public, fearing an invasion of their privacy and exploitation of the images of the victims. While backers of legislation restricting access acknowledge traditional newspaper and TV outlets are unlikely to publish the images, they express fear of their use on the Internet, particularly by fanatical conspiracy theorists.

While those fears are understandable, there is no turning back from the continuing expansion of information technology and it is a dangerous precedent to use that technology as the rationale for eroding First Amendment freedoms.

The votes in favor of the legislation were overwhelming, 33-2 in the Senate, 130-2 in the House. The no votes, cast by Sens. Edward Meyer of Guilford and Anthony Musto of New Britain, and Reps. Stephen Dargan of West Haven and Peter Tercyak of New Britain, all Democrats, were courageous. On such an emotional issue it had to be difficult to stand so alone in defense of open government.

Sen. Meyer was particularly eloquent in describing his reasoning.

"The suppression of horrific crimes committed on public property and recorded by public officials is not consistent with a free and open society," he stated. "Suppression of horrific conduct, as this bill dictates, invites history to repeat itself."

To make his point he used as examples victim photos that have changed public perception and, arguably, history - the killings of students at Kent State University by National Guardsmen during a peaceful protest; a Vietnamese girl running in terror, her clothes burned away by napalm; injuries suffered in the Boston Marathon attack.

The new law also exempts the names of witnesses under 18 from disclosure. Allowing secret witnesses conflicts with the values of an open society. If anonymity is allowed, it should be rarely so and with clear justification, not the result of a complete exemption for an entire age group.

But while we disagree with the legislation, lawmakers and the governor appeared to make the effort to balance privacy rights with the need for public accountability. Pressure by free-press advocates certainly played a role in that.

Earlier discussions about the law called for banning release of audio of 911 calls. As passed, the bill only exempts from release 911 audio describing "the condition of a victim of homicide," a rare occurrence. And in this bill, at least, there was no attempt to block release of death certificates, as earlier proposed.

The law covers all homicides, which is only fair. Prior proposals called for carving out a set of special exemptions for the Newtown tragedy. That would violate the principle of equal protection under the law.

The bill contains a sunset provision on the new 911 rule, expiring May 7, 2014, the end of the next legislative session. In the meantime the legislature is creating a task force "to consider and make recommendations regarding the balance between victim privacy under the Freedom of Information Act and the public's right to know."

Creation of the 17-member task force was the most welcomed development. It will provide the thorough and open analysis this complex topic deserves. The task force will include diverse voices, including elected leaders, the victim advocate, prosecution and defense attorneys, police and constitutional law experts, journalists and open-government proponents.

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