What To Do About The Sandy Hook Photographs?

Over the past several weeks the public has witnessed a very serious debate about how to balance two very important values: the right to privacy and the public’s “right to know.”  Specifically, the debate has centered on the tension between the right of Sandy Hook families to avoid having photographs of their deceased children splashed over the Internet, and the public’s right of access to public documents under the state’s freedom of information laws.

I’m particularly attuned to this debate because I am a longstanding advocate for freedom of information, the current president of the Connecticut Foundation for Open Government, and a member of the Connecticut Council on Freedom of Information.  (The opinions expressed herein, however, are strictly my own.)  At the same time, I have spent the last ten years teaching privacy law at the University of Connecticut School of Law.  By virtue of these positions and experiences, I recognize the gravity of the values on both sides of the equation.  How to balance them is an extraordinarily difficult task.  The answer is not obvious and I respectfully disagree with anyone with thinks it is.

That being said, in a democracy the balance always starts out with a thumb on the “public’s right to know” side of the scale.  That is, we begin with a presumption that the public has a right to know and then ask the government and other interested third-parties whether there is a compelling reason that overrides that right in a particular case.  Moreover, when crafting legislation that impinges on the public’s right to know, care must be taken to ensure that the legislation is narrowly tailored.

The General Assembly is currently considering legislation that would restrict access to the Sandy Hook 9-1-1 phone calls and the crime scene photographs.  I strongly disagree with the manner in which that legislation was drafted (in secrecy), and I believe the 9-1-1 calls should remain public.  But I find the arguments of the families concerning the photographs to be compelling.  No public interest is served by having the photographs show up on the Internet.

The question is whether the legislation is narrowly tailored to infringe as little as possible on the public’s right to know while achieving the compelling privacy interest in avoiding widespread disclosure of the photographs.  That is where I think the proposed legislation can be improved.

Yes, the legislation is narrowly tailored in that it is limited to photographs concerning the Sandy Hook victims.  But that limitation has understandably aroused the ire of victims of other crimes.

Is there another alternative?  I think so.  Presently, the Freedom of Information Act allows the public to both inspect and copy public records.  Amend the FOIA (after a public hearing) to prohibit copying of crime scene photographs of minors, while retaining the public’s right to inspect such records.  No smartphones, handscanners, etc. allowed while inspecting such photos.

As a general matter, the mainstream media generally exercises its editorial judgment and declines to publish bloody crime scene photographs involving children.   The concern is that some tabloid or Internet-based operation will not show such restraint.  That concern is alleviated by a prohibition on the copying of the photographs.

This is not a perfect balance.  There is no perfect balance.  But it is a balance that preserves the public’s right to know while also respecting the privacy interests of families of crime scene victims.

Is it possible under this proposal that some members of the public may go to a police station and ask to look at crime scene photographs for purely prurient reasons?  Yes.  Is that offensive to the privacy interests of the victims and their families? Yes.  But I think the likelihood of such behavior actually occurring is probably quite small.  Rather, the people most likely to want to inspect crime scene photographs are individuals gathering information to develop proposals, including legislation, to prevent tragedies like Sandy Hook from happening again.

[UPDATE:  In the early morning hours of June 5, the legislature passed a bill that exempts crime scene photographs of homicides from disclosure under the FOIA.  It also temporarily limits public access to the Sandy Hook 9-1-1 tapes.  Here is the CT Mirror story.]