Task Force Debates Withholding Crime Scene Photos

, The Connecticut Law Tribune

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At the end of the legislative session this past spring, lawmakers snuck in a law that makes it more difficult for the public, especially members of the media, to access crime scene photos.

There was no public hearing and none of the usual publicity that generally comes with proposed laws.

While not specifically worded as such, the move was made to appease the families of the victims of last December's shootings at Sandy Hook Elementary School who wanted to prevent graphic photos of the victims from being shown in newspapers and web sites.

Knowing that any decision impacting what's available to the public under the Freedom of Information Act would be controversial, the new law also required that a task force be formed to discuss how to better balance the privacy rights of victims and the public's right to know.

The Task Force on Victim Privacy and the Public's Right to Know began meeting in the fall. By year's end, it must come up with suggestions for lawmakers on how to better balance the two conflicting points of view.

But so far, the task force, consisting of victims' rights advocates, media members, police, lawyers, legislators and college professors, remains just as conflicted. At its most recent meeting earlier this month, members were deadlocked on a vote that would have protected the identities of minors between the ages of 13 and 17 who are witnesses to crimes from FOIA requests. The vote was 7-7.

"At some point, folks, we need to move," Don DeCesare, a radio executive at two local stations who co-chairs the task force, told the group. "It would be really gracious of all of us to try to move toward each other, instead of these concrete bunkers we find ourselves occupying."

The primary argument on the victim privacy side is why the victims and their families should have to keep reliving what happened to them when the pictures and audio tapes go public.

And on the other side, a common refrain is that the freedom of information is a foundation of open government. Supporters of that perspective say people need to know how the criminal justice system is operating and exactly what the police are doing.

"I think we have to try to find a way to accommodate both interests and there should be reasonable solutions," Chief State's Attorney Kevin Kane, a member of the task force, told the Law Tribune. "As law enforcement, we ask people and people do provide information to police that sometimes reveals private details. We take photographs of dead people in a manner that most society wouldn't do because it's necessary. And in return law enforcement needs to be careful not to reveal that information and those details without good reason. Determining what's a good reason is the trick."

The new law exempts from disclosure under FOIA "a photograph, film, video, digital, or other visual image depicting a homicide victim, to the extent that the record could reasonably be expected to constitute an unwarranted invasion of the victim's or surviving family members' personal privacy."

There is also a short-term measure that expires in May that prevents the release of audio recordings of law enforcement describing the condition of a victim of homicide.

Former state Victim Advocate Michelle Cruz began the quest to seek limitations on FOI when it came to crime victims in late 2010. She said the personal information of crime victims and their autopsy photos were being released publicly "despite the anguish and heartbreak it was causing the family." Further, she said prisoners were seeking autopsy photos through FOIA for their own kicks.

"The victim of crime was not the original target of the FOIA process," said Cruz. "Rather the target was the government and corruption. Think Watergate. Somehow over the years in Connecticut… this process has turned on the innocent crime victim and their family…"

Becky Virgalla, a survivor of the Sandy Hook shootings, said she did not want to hear her own voice on 911 calls being rebroadcast through the media.

"There is nothing positive to be gained by providing public access to 911 calls other than to satisfy the morbid curiosity of the media and the thrill-seekers who clamor to hear the sound of gunshots in the background of our calls," Virgalla told the task force.

Proponents of open government believe that the legislation passed in response to the Sandy Hook tragedy was short-sighted.

Mitchell Pearlman, a lecturer in law and journalism at the University of Connecticut who used to be chairman of the state's FOIA Commission, said it was understandable that government looked for "quick fixes" to "relieve some of the victims' anguish." But he believes in the long run that could lead to bigger problems.

"..To withhold information from the public in the name of victim privacy is simply to invite less trust and more conspiracy theories, further undermining government's credibility with respect to the fairness of the justice system," Pearlman testified.

Rosanna Cavanagh, a lawyer and executive director for the New England First Amendment Coalition, sides with Pearlman and other open government advocates who testified.

Cavanagh argues that a murder involving police brutality or misconduct would result in photos, videos and audio evidence being withheld from release through FOIA.

Cavanagh also shot down potential compromises that have been mentioned thus far. "Putting an age limit on autopsy photos could create a barrier to identifying instances of child abuse murder," said Cavanagh. "Allowing only the press or family members access to the autopsy photos is problematic as the constricting media industry cannot be our only source of government oversight."

Conversely, Morgan Rueckert, an attorney at Shipman & Goodwin who, along with others at the firm, represents pro bono 22 families and their children who were killed at Sandy Hook Elementary, argues that the same balancing enacted in the new law when it comes to murder photos should apply to other forms of media as well, including all audio.

"And this would bring us in line with all of our neighboring states and federal FOIA," said Rueckert. "Prior to the new act, unbelievably, there was no FOIA protection for crime-scene photos in Connecticut and really no recognition of privacy for victims."

Rueckert believes the new protections for victims should be expanded with the Internet in mind.

"Digitization and the Internet have frankly changed everything," Rueckert told the task force. "Everyone with a computer is an editor, reporter and publisher in one, unbound by any professional responsibility. "Privacy is so fleeting, so easily violated now, and information once disclosed, is disclosed forever. The law needs to change to keep up…"•

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