Balancing victim's rights and public rights
On Sept. 1 The Day published a commentary by Dick Ahles ("This is why laws shouldn't be passed in secret") in which he contends that Connecticut's new law protecting the images of homicide victims from public disclosure - including images of the dead bodies of the 20 school children and six adults murdered at Sandy Hook Elementary School - was adopted as the result of an unfounded rumor.
As a leader in the General Assembly who worked on this legislation, I can say with first-hand certainty that this was not the case. Rather, the narrowly crafted proposal, which was supported by a large bipartisan majority of legislators, began in response to the heartfelt pleas of victims' family members who reasonably feared that public disclosure of such images would result in their widespread publication in print and on the Internet causing them unnecessary mental pain and anguish.
Yes, Michael Moore's blog post wherein he advocated on behalf of such public disclosure and stated "we must look at the 20 dead children. … we must look at the pictures of the 20 dead children laying with what's left of their bodies on the classroom floor in Newtown, Connecticut" contributed to the family members' legitimate fear and anxiety, but it was not the primary impetus for the law.
Having heard those pleas, we began to do some legal research and learned, for example, that the federal law regarding freedom of information specifically recognizes a right to privacy. It broadly protects any law enforcement record from public disclosure if disclosure could constitute an unwarranted invasion of privacy. Many states have incorporated this same privacy exemption into their own laws.
In National Archives and Records Administration v. Favish, the U.S. Supreme Court ruled that the death scene photos of Vincent Foster, deputy counsel to President Clinton, were exempt from disclosure based upon the legitimate privacy concerns of his surviving family members. The court noted that this right to privacy is not merely statutory but is grounded in our common law. State courts have followed a similar analysis in shielding certain records from disclosure, including the 911 tapes from the Sept. 11 attacks and the Station nightclub fire in Rhode Island, and certain autopsy records from the Columbine school shooting.
This right to privacy is imbedded in our Constitution and provides the basis for many important individual rights, including the right to be free from unwarranted search and seizure and the right to control our own bodies.
In addition to federal and state precedent, a review of Connecticut's existing FOI law revealed literally hundreds of exemptions. Some of these exemptions are based on privacy concerns, but only apply to certain protected classes. For example, the personnel, medical and other files of state employees are exempt if disclosure would constitute an invasion of privacy, and teacher evaluations are also exempt. It is difficult to see how a public employee or teacher is entitled to privacy with regard to workplace records while a private citizen who becomes the victim of a random act of violence is not.
In light of this legal precedent, the limited protection offered by last session's legislation was both narrow and reasonable. At the same time, we recognized that victims of other crimes, attempted murder, assault, home invasion, etc., may also deserve protection. Privacy rights should not depend on your zip code, the high profile nature of the crime, or your financial ability to go to court and seek protection under the common law or Constitution.
Rather than add to the numerous ad hoc exemptions that currently exist in our freedom of information laws, a more reasoned approach that could take into consideration the interests of all crime victims and their families was believed to be appropriate. This is the goal - and I believe it to be a legitimate and laudable one - of the legislative task force established to balance victims' privacy rights with the public's right to know.
Leonard A. Fasano is the Senate minority leader Pro-Tempore and an appointed member of the Task Force on Victim Privacy and Freedom of Information.
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