Testimony of NEFAC’s Executive Director on Conn. Victim Privacy Legislation

Below is the March 1o, 2014, testimony of NEFAC’s executive director, Rosanna Cavanagh, Esq., given to Connecticut’s state Committee on Government Administration and Elections. Cavanagh addressed issues related to Bill No. 381 which concerns victim privacy and the public’s right to know. 

As Executive Director of the New England First Amendment Coalition, a non-profit organization working in the six New England states to promote and defend our First Amendment freedoms and the principle of the public’s right to know, I thank you for the opportunity to provide testimony on issues of importance to the public’s right to know raised by Bill No. 381.

Robust state public access laws are essential to enhancing our democratic system and engaging the citizens of Connecticut in oversight of the proper functioning of their government. Public access to 9-1-1 emergency recordings, death certificates, and autopsy photos make it possible for the public to monitor the performance of various governmental units.

The passage of new legislation last summer modifying the Connecticut Freedom of Information Act severely damaged the strength of what has been heretofore model freedom of information regime. The additional changes proposed further weaken the Connecticut Freedom of Information Act.

Throughout the past decades, Connecticut’s independent Freedom of Information Commission has been a model for New England, our nation and even our world. Former Freedom of Information Commission Chairman Mitchell Pearlman has advised in over 20 countries on setting up effective freedom of information regimes due to his experience in Connecticut.

The main problems with the proposed changes in Bill No. 381 are the scope of the exemptions created, the confusing balancing test and the onerous “look, listen but do not copy rule.” Exempting documents related to any homicide where the public release of photos, videos, or other visual images depicting a victim “could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members” creates a broad new category of information off limits to the public. Requiring the records officer at the state agency to make the determination if a record constitutes an unwarranted invasion of personal privacy can be a difficult choice to make. We recently adopted a similar language in Rhode Island with regards to records personally identifiable to an individual and there is already litigation on the issue of how this should be interpreted.

It is a real concern to government watch dog organizations, that in the unfortunate case of a homicide related to police misconduct or brutality, the photographic, video, and audio evidence would fall under this exemption and thus be barred from public view. It would fall to the department of the offending officers to decide whether release of the records would be appropriate. Recent history teaches us that this is more than an academic concern. The following incidents are shortened versions of information available online:

November 5, 1992: In Detroit, Michigan, Malice Green died while in police custody after being arrested by Detroit police officers Walter Budzyn and Larry Nevers during a traffic stop. Green allegedly failed to relinquish a vial of crack cocaine. Nevers struck Green in the head with his flashlight approximately fourteen times during the struggle which, according to the official autopsy, resulted in his death. An Emergency Medical Service (EMS) worker arrived on the scene and sent a computer message to his superiors asking, “(W)hat should I do, if I witness police brutality/murder?” Other officers and a supervisor arrived but did not intervene to stop the beating. Green had a seizure and died en route to the hospital. The official cause of death was ruled due to blunt force trauma to his head. Both officers were convicted of second degree murder, but in a retrial (due to juror misconduct), they were convicted of involuntary manslaughter. A photo taken of Green used in trial revealed the wounds to his head.
On September 15 of this year, an African-American man, Jonathan Ferrell was fatally shot by police. He was in distress and had recently suffered a car crash in nearby woods. On Saturday morning, three police officers in Charlotte, NC, responded to a 911 call from a woman, who said that an unknown male was knocking on the door of her house, local media reports. When the patrol arrived at the scene, the man – later identified as Jonathan Farrell, 24 – rushed at the officers, causing them to believe that he may be dangerous. The policemen tried to neutralize the suspect with a Taser, but when it didn’t work out, one of them used his gun, firing several shots. Farrell died of his wounds on sight. The body search revealed that he had no weapon on him. Several hours later a wrecked car belonging to the deceased man was discovered at a nearby embankment. “Our investigation has shown that Officer Kerrick did not have a lawful right to discharge his weapon during this encounter,” a police statement also said, according to Reuters. Attorney Chris Chestnut said he is seeking to obtain every piece of piece of police evidence (no doubt including autopsy photos) from the shooting, adding that “If Mr. Farrell was not black or brown, wouldn’t they have asked him a few questions before showering him with bullets?”
August 31, 2012: In Mesquite, Texas, officers attempted to stop a vehicle that matched the description of a vehicle that had been involved in a previous chase. Michael Vincent turned into a cul-de-sac and officer Patrick Tuter rammed his squad car into Allen’s truck. According to a witness, the police yelled “Get out” then began shooting without giving Allen a chance to comply. Allen was unarmed. Tuter fired his weapon 41 times, requiring two reloads to do so. A witness took photos and video of the scene, which police confiscated. Tuter claimed that Allen had rammed his squad car, but video from the squad car’s camera established it was Tuter that rammed Allen. Mesquite police say they confiscated, but did not destroy, a memory chip from a cellphone that was used to take pictures and video of the scene where a Garland officer shot and killed a fleeing suspect.
In 2009, Oscar Grant III was fatally shot by BART police officer Johannes Mehserle in Oakland, California, in the early morning hours of New Year’s Day. Responding to reports of a fight on a crowded Bay Area Rapid Transit train returning from San Francisco, BART Police officers detained Grant and several other passengers on the platform at the Fruitvale BART Station. Officer Johannes Mehserle and another officer were restraining Grant, who was lying face down and allegedly resisting arrest. Officer Mehserle stood and, according to his attorney, said: “Get back, I’m gonna tase him.” Then Mehserle drew his gun and shot Grant once in the back. During his court testimony, Mehserle said that Grant then exclaimed, “You shot me!” Grant turned out to be unarmed; he was pronounced dead the next morning at Highland Hospital in Oakland. The events were captured on multiple digital video and cell phone cameras.

While it is problematic to create a blanket exemption for photos of homicide victims and restrict access to certain audio recordings describing the condition of a victim as the new exemptions to the Connecticut Freedom of Information Act do, it would be even worse if this law would go further than it already has to restrict access to portions of audio tape or other recordings where the individual speaking on the recording describes the condition of a victim of homicide in an emergency 9-1-1 call or other call for assistance.

An amicus brief prepared on behalf of several organizations including the New England First Amendment Coalition related to accessing 9-1-1 information in Maine highlights several incidents in which information from emergency calls were essential as an oversight tool to pinpoint problems in emergency response protocol and provide examples of costly delays which at times led to the death of those relying on such systems for help. At times the 9-1-1 call provided information more accurate than the “official” version of such events and in doing so exposed problems in need of attention. See summaries from the brief below:

Tapes of 911 calls revealed an eight-minute delay before the dispatch of sheriff’s deputies after a social worker called 9-1-1 to report that a father of two children had locked her out of the house during a supervised visit and that the social worker smelled gas. The 9-1-1 records showed that the dispatcher questioned the social worker for nearly seven minutes before saying that he did not know when deputies could respond, dispatching the call as “routine” rather than an “emergency.” Deputies arrived to find the house engulfed in flames along with the two boys and their father dead inside.
In Baton Rouge, Louisiana, 9-1-1 records revealed that a technical glitch led to a thirteen-hour delay before police arrived at the scene of a shooting to find a two-year-old boy inside a home with his dead mother.
In Arizona, a SWAT team raid went awry when authorities shot a man 60 times. In a 9-1-1 call obtained by the Tuscon Daily Star, the victim’s wife describes how she woke her husband after hearing noises outside and saw a man standing outside a window. She also told dispatchers that her husband, a former Marine, hid the wife and their four-year-old son in the closet before heading toward the front door with an assault rifle, apparently believing that people were attempting a home invasion. SWAT team members fired more than 70 times on the man, hitting him 60 times. Police initially reported that the man fired first but later retracted the statement after documents showed that the man’s assault rifle had its safety on when he was shot. After police had shot her husband, the wife pleaded with dispatchers for more than five minutes to send an ambulance, with authorities letting paramedics into the home nearly an hour later after expressing confusion over whether the home was part of a series of raids police had planned on homes suspected of being involved in drug trafficking.

In conclusion, as your committee grapples with the difficult aftermath of the Newtown tragedy, I urge you not to overlook the unexpected consequences of changes to the Connecticut Freedom of Information Act. The changes proposed here severely limit the ability of the public to watchdog various governmental entities. The “look, listen but do not copy” rule onerously requires anyone interested in the records to take time during a work day to visit the agency and view or inspect the records in person.  This rule also creates problems of proof when conflicting claims are being made as to what occurred and what the records indicate. It also would limit the ability of concerned persons to share information with colleagues and/or experts who could be the key to understanding the truth. It shifts the burden to the records requester to prove that a denied record is needed and requires a time consuming trip to the Freedom of Information Commission to resolve disputes. I hope you reconsider the long-term consequences of what will be accomplished if this bill is adopted into law.

Thank you very much.

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