Truth Serum

Opinion: FOI Laws Assault Crime Victims

, The Connecticut Law Tribune

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Watergate. Benghazi. The Kennedy assassination. The need for government transparency has transcended the decades, as has the need for a tool for obtaining documents and information to hold the government accountable. The federal Freedom of Information Act was first implemented over four decades ago and now every state in the nation now has FOI legislation. Connecticut's FOI laws were enacted in 1975, and the Freedom of Information Commission was created as an independent agency assigned the task of ensuring FOI requests are handled appropriately.

But somehow over the years, the concept behind the FOI laws—to ensure government accountability and transparency—has morphed into the media's ability to obtain sensational material about the private lives of crime victims to splash on the front page of the newspaper or to broadcast on the 6 o'clock news. This is an unintended consequence that no one could have foreseen decades ago.

Every day we take for granted our right to privacy. For the most part, we walk through our lives free from mass media coverage and enjoy the anonymity of an average private citizen. The intimate details of our lives—our relationship break-ups and our financial struggles—remain unknown to our neighbors and acquaintances. When grief comes knocking on our doors, when we lose a loved one from, say, a heart attack, we can suffer our pain, cry our tears, without public scrutiny.

Our private pain is just that—private.

That all changes when crime comes knocking on our door. If for some unfortunate reason our lives collide with crime—if we become a victim, or if we're otherwise involved in a law enforcement investigation—our privacy will be ripped away under the guise of "the public's right to know."

When a family is thrust into this scenario, through homicide, violent assault, sexual assault or some other criminal act, the ramifications can be daunting and traumatic. Each crime victim, family member and friend is affected in a variety ways. In some cases, the crime draws the media's attention. In most cases, this attention is unwanted. The family desires privacy so it can grieve and begin to cope with and absorb the impact of the crime.

Many times the sudden trauma plunges the victim and those close to the victim into emotional turmoil, which in severe cases can result in post-traumatic stress disorder.

How does the victims and the victims' family's information become housed within the halls of a public agency? While the family is coping in the aftermath of crime, the police are collecting evidence, taking pictures, gathering statements and other related information. The police cast a wide net to ensure all theories of the crime are reviewed and the true culprit is apprehended. Some of this information may find its way into a police report. The information in the police report may find its way into the courtroom. In a given criminal event, hundreds of documents, exhibits and photos could be collected and contained within a case file.

Connecticut's FOI law is the most robust in the country, and there is a commission to enforce it. As a result, there is a greater likelihood for private, and intrusive, information to be transferred from the police investigation into the realm of the media and the public. The FOI process is supposed to be a window into governmental practices and behavior, not into the private world of a crime victim. Crime scene photos have little, if any, value in ensuring governmental accountability.

Somehow over the years the analysis as to whether the information sought through FOI was "in the public's interest" has gone by the wayside. Instead, the analysis has been watered down. Now, if the file is located in a public place, then turn it over to whoever wants it. End of story.

Earlier this year, in the wake of the Newtown school shootings, the legislature approved a measure that bars the release of crime scene photos in homicide cases from the public and media. A statewide task force is now debating the issue. If the ban holds, it's a good place to start. But if it remains limited to homicide cases, it doesn't go far enough. Why should victims of sexual assault or domestic violence, for example, have to worry about photos or other gory details becoming public?

Furthermore, the state law is limited to images "created" by the law enforcement community. What about images that are created by another agency or individual that find their way into the police file? What if the killer photographs a murdered victim and that photo becomes evidence? Is that photograph available to the public? The legislation enacted sure seems to indicate it would be.

What about myriad other materials often uncovered in an criminal investigation – financial documents, personal emails, notes or letters? If those become part of a police report of court case file, that private information is changed, forever, into public information.

In contrast, state employees' personnel files remain protected from public view. If the goal of FOI laws is to promote government tranparency, then perhaps it's these files that should be open. After all, newspapers and television stations are more likely to find clues about corruption there than in crime victims' private information.•

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