BY JON LENDER, email@example.com
The Hartford Courant
2:27 PM EDT, June 5, 2013
The state Senate and House, after short debates, voted overwhelmingly early Wednesday to approve a bill blocking public disclosure of photos of homicide victims and some other records in reaction to the Newtown school massacre.
The Senate took up the bill at 1:17 a.m. and voted 33-2 to approve it at about 1:35 a.m. Voting no were Democratic Sens. Edward Meyer of Guilford and Anthony Musto of Trumbull.
At 2 a.m. the House approved it by a vote of 130-2, with Democratic Reps. Stephen Dargan of West Haven and Peter Tercyak of New Britain voting against it.
Gov. Dannel P. Malloy signed the bill into law at about 1:45 p.m. Wednesday. It takes effect immediately.
The bill applies to all homicide cases — not just to the Newtown investigation, as an earlier version of the proposal would have dictated — and it will block release of photos, videos, or digital video images "depicting the victim of a homicide, to the extent that such record could reasonably be expected to constitute an unwarranted invasion of the personal privacy" of the victim or surviving family members.
Audiotapes of 911 emergency calls would continue to be released as public records under the state Freedom of Information Law according to the new language drafted Tuesday night.
However, parts of audio recordings of other calls made by law enforcement personnel – portions in which the speaker describes "the condition of a victim of homicide" – would not have to be disclosed by a law enforcement agency.
As originally discussed, the bill would have blocked release of all audiotapes of 911 calls — which are routinely released in Connecticut and across the country, and are used by citizens and news organizations to evaluate police response to emergencies.
The 911 emergency call tapes had been the last big sticking point after days of negotiations that finally brought a compromise late Tuesday night. The bill would have been voted on a bit earlier but for the fact that 110 lawmakers wanted to sign on as sponsors -- and it took time to list all of their names on the measure.
Malloy issued this statement after the vote: "My goal with this legislation was to provide some measure of protection for the families affected by the tragedy at Sandy Hook Elementary School [in Newtown]. But the fact is, all families have a right to grieve in private. Those who lose loved ones to violence have a right to protect themselves against further anguish. This is a difficult issue, requiring all of us to balance deeply held beliefs and important public policy values. I commend the legislators on coming to an agreement that respects the privacy of grieving families."
The bill also exempts the names of witnesses under 18 years old from disclosure under the state's Freedom of Information Law, and calls for establishment by July 1 of 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."
There is an 11-month limit on the bill's provision saying police departments don't need to release portions of tapes of radio transmissions describing "the condition of a victim of homicide." It only applies to requests for such tapes on or before May 7, 2014 – which is the last day of the 2014 legislative session. By then, the task force should have made its recommendations, and lawmakers will have decided whether to extend the exemption under which police could refuse such requests, lawmakers said.
Task Force Members
The 17-member task force will include: the director of the state FOI Commission, Colleen Murphy; a person appointed by the Connecticut Council on Freedom of Information; the chief state's attorney; the chief public defender; the state victim advocate; the commissioner of the Department of Emergency Services and Public Protection; two appointees of Malloy, one representing a "crime victim advocacy organization," and one "a representative of municipal law enforcement"; a constitutional law professor recommended jointly by the law school deans at Yale, Quinnipiac University and UConn; four appointees of the Connecticut Society of Professional Journalists, one each representing television, radio, print and "electronic media"; state Senate President Pro Tempore Donald Williams or a lawmaker he designates; House Speaker Brendan Sharkey or a member of the Black and Puerto Rican caucus whom he designates; Senate Minority Leader John McKinney or a lawmaker he designates; and House Minority Leader Larry Cafero or a lawmaker he designates.
Williams and Sharkey will choose two "chairpersons" from among the members of the task force, which will be required to submit a report on its findings to the General Assembly by next Jan. 1.
Proponents praised the measure as properly balancing the public's right to know with the right of victims and their families to privacy.
Sharkey, D-Hamden, said: "It is impossible to ignore the concerns of the Newtown families, and in fact families of all homicide victims. I am convinced that nobody needs to see such disturbing graphic crime scene photos. We owe it to all these families to protect them from further pain. In light of the Internet age, the balance between privacy and freedom of information needs to be reexamined and updated. The interim task force [to be formed under the terms of the bill] will now be able to thoroughly explore these issues further and help us ensure that the right to privacy is properly balanced with the public's right to know."
Cafero, R-Norwalk, embraced Nicole Hockley – whose son Dylan, 6, died in the massacre – outside the chamber and told her, "Thank you for helping us do this."
Meyer, one of the two senators who opposed the bill, said: "As a father of six and a grandfather of 13, I identify so much with the horrific crimes of Dec, 14 and the immense sadness that those events bring to the Newtown families," Meyer said. But, he added, "There is a bigger issue here that must be addressed. Criminal conduct occurred which is subject to Connecticut's criminal law, perhaps the most public of our laws. The Newtown crimes were committed on public property. The photos and recordings were taken or obtained by police officers. The suppression of horrific crimes committed on public property and recorded by public officials is not consistent with a free and open society.
"The more we understand about our ugliness, the better chance we have to overcome that ugliness. Suppression of horrific conduct, as this bill dictates, invites history to repeat itself. ... With sadness, I say that history will show that this well-intentioned bill is a large mistake."
Meyer made his comments in a printed statement, to which he attached famous journalism photographs depicting: Vietnamese girl running in terror after her clothes were burned off her by napalm; the killings at Kent State University; the police abuse of Rodney King; and recent injuries after the bombing at the Boston Marathon.
Tercyak struggled to find the right words to explain why he voted no in the House, and it came down to his objection to bypassing the normal legislative process that includes a public hearing and taking time to study an issue. "I'm just sick about this,'' he said. "We had a conversation about gun control, we had a conversation about mental health. I thought that the idea of 'let's have a moratorium while we have a conversation about this idea' was a good one. And I'm heartsick that we didn't....The people of Connecticut deserve to have a voice in the conversation about this too."
At stake, Tercyak said, was the very foundation of our democracy. "Open government's the bedrock,'' he said, sounding weary as his colleagues walked by. "Some principles are just always there and the reason people can trust our government and our police departments is because we don't have secrets."
Balancing the needs of crime victims with the principles with open government is "never easy,'' he said. "I don't know if it's ever harder than this."
Williams, D-Brooklyn, introduced the bill in the Senate by saying that it "balances important and critical interests. Behind me … are some of the parents and relatives of those who lost loved ones at Sandy Hook. The interests that we balance are critical to them, but they're also critical to our democracy. Abraham Lincoln said, 'Let the people know the facts and the country will be safe.' Walter Lippmann said the 'theory of a free press is that the truth will emerge from free reporting and discussion, not that it will be presented perfectly and instantly in any one account.'"
But "at the same time … Justice Louis Brandeis many years ago recognized an essential right to privacy in the United States" which Williams said has evolved over the years. Williams said that in a 2012 federal appeals court decision in the case Marsh v. County of San Diego, Judge Alex Kozinski concluded "a mother has a constitutionally protected right to privacy over her child's death images." That right is protected under the U.S. constitution, Williams said the judge declared, adding that "few things are more personal than the graphic details of a close family members tragic death."
McKinney, R-Fairfield, the legislature's chief proponent of the bill, said "the intent of what we're doing here is very clear – that the public disclosure of the an image of the dead body of a brutally murdered child, or spouse, or sibling would cause emotional harm and violate the personal privacy of the parents and other surviving family members."
"One does not need to see the photos to understand the unwarranted pain and anguish it would cause a parent or other family member to see such photos published and appear on the Internet every time someone searches 'Sandy Hook' or 'school shooting'", said McKinney, whose Senate district includes Newtown.
"In this case it is our clear intent that the privacy interests of the victims and their families outweigh any public interest in the disclosure of the photos of the Sandy Hook victims. This is narrow protection offered in this bill," McKinney said. "And it is not unusual or novel. Federal freedom of information laws as well as old English common law have long recognized the privacies interests of crime victims and their families."
Deal Was Elusive
About 8 p.m on Tuesday, the situation had been unresolved; days of negotiations among legislative leaders and the governor's office had still not brought a final compromise.
At the time, McKinney said: "We are where we've been for the last couple of days, continuing to have a dialogue about trying to see if we can accomplish something to protect families of Newtown from disclosure of the photographs of the victims — and try to do it in a way that's extremely narrow, to protect what is a very, very important freedom of information law in the state of Connecticut. We haven't reached that goal line yet, but we're going to continue to work forward."
He had just emerged about from a meeting with the other three top Democrat and Republican leaders of the House and Senate, the governor's chief of staff, the head of the Black and Puerto Rican caucus, and at least one parent -— Hockley —— of a first-grader killed in the Dec. 14 shooting at Sandy Hook Elementary School in Newtown.
Legislative leaders filed out of the meeting in McKinney's third-floor office in the state Capitol with serious faces and little to say. McKinney was the only one who answered reporters' questions — and he did so for just under 10 minutes.
"I think we're going to get something done before adjournment" on the Newtown bill, McKinney said, . referring to the scheduled close of the five-month 2013 legislative session adjourns at midnight Wednesday.
The governor's office, Chief State's Attorney Kevin Kane and legislative leaders had secretly been talking for more than a month about a bill that would have given families of the Newtown victims veto power over the release of any photos or video images of victims' injuries, as well any verbal descriptions of those injuries. The proposal also would have blocked release of audiotapes of 911 calls and other police radio transmissions, but would have made transcripts of those tapes available for 50 cents a page.
Word of the planned bill was kept secret from the public until May 21, when The Courant obtained a copy of an email written by a Kane assistant about it. Other emails showed the secret discussions dated back to at least April 3, bypassing the normal legislative process that includes a public hearing.
As conceived by Kane, it would have applied to such records and audiotapes in all criminal cases, not just Newtown. But then it was narrowed to apply only to records from the Newtown tragedy. Under the proposal, the Newtown town clerk wouldn't have had to release victims' death certificates, contrary to the state's Freedom of Information Law, and the names of witnesses under 18 could be deleted from police reports.
However, heavy criticism arose from newspapers and freedom-of-information activists. They objected not only to what the bill would do, but also to the fact that such a significant change in the law affecting freedom of information would be negotiated in secret.
Since then, lawmakers have tried to adjust the proposal to meet resistance that has surfaced, particularly among House members.
Williams had said repeatedly that it is important to preserve public disclosure of police audiotapes including 911 calls.
One hang-up Tuesday night in the negotiations among legislative leaders appeared to be whether all emergency-call tapes would be released, or whether parts that are explicit about victims' injuries would be deleted and reduced to written transcripts before being disclosed.
Families of the Newtown victims had been at the Capitol in recent days, pushing for protection of their loved ones' memories by preventing disclosure of both images and audiotapes of emergency calls related to the massacre in which 20 first-graders and six women were shot to death by Adam Lanza, 20, who then killed himself.
Pressure To Expand
There was recent pressure to expand the bill beyond the Newtown case, so that the measure would block the same records in all criminal cases. That pressure has come from critics including the state's victim advocate and members of the legislature's Black and Puerto Rican Caucus. They have questioned the fairness of granting such protection only to the Newtown families – and not to the families of the victims of more-common and less-publicized killings that often happen in urban areas.
One solution discussed would be to block the disclosure of photos and images of murder victims in all homicide cases, based on federal law and precedent, but to preserve public disclosure of 911 call audiotapes in all cases. But that was not close to being certain Tuesday night.
McKinney said that the "single most important priority" of Newtown victims' families "was making sure that the photos of their children are not released."
Although police departments do not release photos and most mainstream news organizations don't publish them even when they become evidence in criminal trials, McKinney and Newtown parents have said they're worried about Internet bloggers and conspiracy theorists who might do it. They've noted that documentary filmmaker Michael Moore also has called for release of the photos to call attention to the need for gun control.
Beyond preventing release of photos and video images, the families' "priorities go down from there," McKinney said.
McKinney said his own view is that release of murder victims' photos should be prohibited in all cases, not just Newtown. "I'm a parent of three children and I don't think any parent should have to worry about their son or daughter's photos, who've been murdered, being released publicly and splashed all over the Internet."
Asked about whether he thinks tapes of 911 emergency calls should be released in all cases — as has been discussed as part of the possible compromise language that blocks all homicide photos — McKinney said this: "My personal opinion is that I personally would redact audio portions that would depict [victims] or voices of children and put that onto a transcript, and not redact any other portion of a 911 tape."
He said lawmakers have been looking at a U.S. Supreme Court decision a decade ago in a case about photographs in the death by suicide of Clinton White House aide Vince Foster. McKinney said the decision extends protection to the victim's family and "talks about an unwarranted invasion into the right of privacy ... if there's no legitimate purpose for the pictures."
McKinney said looking at that decision "gave us a direction that it is appropriate in certain circumstances to say that the right to privacy for the victims of homicide trumps the public's right to know. ... Again, the Vince Foster case dealt with photographs," not tapes of emergency calls.
Late Tuesday, Chris VanDeHoef, executive director of the Connecticut Daily Newspaper Association, issued this statement: "There is no proposal at this late hour to review, so I can't comment on specifics, but CDNA urges caution while legislative leadership and the governor's office looks at making changes to the [Freedom of Information Act] in response to the tragedy in Newtown. The legislature is against the clock and we hope that whatever is proposed is done so with all thoughtfulness about the importance of open government and the public's right to know."
Courant staff writer Daniela Altimari contributed to this report.
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