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Solving a problem that doesn't exist

By DANIEL KLAU

Publication: The Day

Published October 20. 2013 4:00AM

Only days before the end of the 2013 legislative session last June, someone (apparently a Fox News reporter) started a false rumor that documentary filmmaker Michael Moore was going to make a Freedom of Information Act ("FOIA") request for graphic crime scene photographs of the Sandy Hook massacre and then splash those photographs all over the Internet or movie screens. Michael Moore never made any such request and he never had any such intention. Nevertheless, the Fox News rumor triggered a misguided frenzy in the legislature to amend the FOIA to prevent the disclosure of crime scene photographs of any homicide victims.

It also led to the creation of the Task Force on Victim Privacy and the Public's Right to Know, which is charged with examining the balance between victims' rights and the FOIA and making recommendations to the legislature regarding further amending the FOIA in the interest of victim privacy. The task force is holding public hearings on the issue.

Having followed these developments closely as president of the Connecticut Foundation for Open Government, I am convinced that the General Assembly created the task force to seek a solution to a non-existent problem. Moreover, the creation of the task force has, ironically, caused the Sandy Hook families to suffer the very pain they sought to avoid by the disclosure of photographs. It has distracted them from the process of healing and forced them instead to endure more public hearings and discuss the horrific events of Dec. 14, 2012.

Why do I describe the task force as seeking a solution to a non-existent problem? Because although graphic crime scene photographs of victims, including homicide victims, have long been subject to disclosure under the FOIA, I can't find a single instance in our state of such a photograph being disclosed to the public pursuant to an FOIA request and then being published in a newspaper or on the Internet.

Consider that before Sandy Hook, there was the July 23, 2007 murder of three members of the Petit family in Cheshire. The Petit home was set afire and Dr. Petit's wife and two daughters were murdered in the home. Dr. Petit was seriously injured, but managed to escape. The police took many photographs of the crime scene, including photographs of the victims. All of those photographs were public records and thus subject to disclosure under the FOIA upon request. Do a Google search and you will find some crime scene photographs from the Cheshire murder scene on the Internet. But you will not find any pictures of the homicide victims. Furthermore, the pictures on the Internet are ones that were introduced in evidence at the trials of Steven Hayes and Joshua Komisarjevsky. The appearance of those pictures on the Internet has nothing to do with the FOIA and everything to do with the fact that the public has a First Amendment right of access to court proceedings and documents, including trial exhibits. If you don't want trial exhibits to appear in newspapers or on the Internet, the "problem" is not the FOIA; it is the First Amendment.

Consider another example: On Aug. 3, 2010, a mass shooting at Hartford Distributors in Manchester resulted in the deaths of eight innocent people before the shooter killed himself. The police took photographs of the crime scene, including graphic photographs of the homicide victims. None of the graphic victim photographs were ever published by the media or by a sick blogger.

Hartford state Rep. Angel Arce, a co-chair of the task force, gave emotionally powerful testimony a few weeks ago concerning the media's repeated running of a security camera video of his father being hit on Park Street in Hartford - the victim of a hit and run driver. He described the pain he constantly feels whenever he sees that video. That pain is real, but the FOIA had nothing to do with the problem he described. The video of his father was released by the police, who hoped that it would help them identify the driver of the hit-and-run vehicle. If the FOIA did not exist, the police still could have done what they did. Does Rep. Arce want a new state law that absolutely forbids the police from ever releasing information, including photographs, that may help them solve a crime?

In sum, the notion that the FOIA has been a source of graphic crime scene photographs of homicide victims, which then get published by the media or on the Internet, is a fiction. Could it theoretically happen? Yes. Does it happen? No.

Some people may argue that even the theoretical possibility of crime scene photographs of homicide victims being released is unacceptable. I understand and respect that argument, although I disagree with it. I don't want to see the Sandy Hook photographs published or available to the world by clicking a button on a computer. I don't want the Sandy Hook families to suffer more pain. But what I want even less is a new law that categorically forbids public access to crime scene photographs of victims generally. I don't want a false rumor that led to a legislative frenzy to result in bad long-term public policy that has ramifications far beyond the Sandy Hook tragedy.

Others have written eloquently about the positive role that public disclosure of graphic pictures of crime victims can play, in the civil rights movement for example. Photographs of the victims of Nazi atrocities at concentration camps have been essential to rebutting Holocaust deniers. Photographs of the victims of chemical weapons attacks in Syria have produced significant diplomatic progress in that civil war. No one should ever deny that the release of such photographs may cause very real pain to families and friends of the victims in them. But we also must consider the countervailing benefit that public disclosure of such photographs can have.

There is another irony to this situation. Had the legislature not acted so secretly when it considered the last-minute crime scene photo legislation in the last days of the 2013 session, had it instead given members of the public, particularly those who are informed about the FOIA, a chance to discuss these issues with them, the Sandy Hook families and legislature would have learned that the concern about the possible release of photographs was a tempest in a teapot.

Put another way, had the legislature demonstrated even a modicum of respect for the principles of open government that many now want to curtail, the falsity of the Michael Moore rumor would have been exposed and the additional pain and anguish that the Sandy Hook families are now experiencing because of the task force could have been avoided.

Attorney Daniel Klau is president of the Connecticut Foundation for Open Government. This commentary was excerpted from his blog, "Appealing Brief," found at appealinglybrief.com.

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