The Plain Meaning Rule And The FOI Exemption For Homicide Photographs

This post is about how General Statutes section 1-2z, which codifies the “plain meaning rule” of statutory interpretation, can lead to judicial interpretations of statutes that are completely at odds with what everyone knows the legislature actually intended when passing a law. To illustrate my point, I examine legislation enacted in 2013 concerning homicide photographs.

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The 2014 legislative session is over.  The recommendations of a legislative task force created in the wake of the Sandy Hook tragedy to examine the balance between the “public’s right to know” and the privacy interests of crime victims did not become law.  Indeed, Senate President Don Williams, who is retiring this year, made an impassioned plea to his colleagues in the General Assembly to reject those recommendations.

The rejection of the task force recommendations leaves in place Public Act 13-311, which was passed in the closing hours of the 2013 legislative session.  Amongst other things, section 2 of PA 13-311 added a new exemption–exemption 27–to the Freedom of Information Act (FOIA).  Exemption 27 provides that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of”:

Any record created by a law enforcement agency or other federal, state, or municipal governmental agency consisting of a photograph, film, video or digital or other visual image 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 the victim’s surviving family members.

What does this language mean?  Here’s my best shot at answering that question in accordance with the dictates of section 1-2z and several other longstanding canons of statutory interpretation.

Initially, section 1-2z tells courts to consider the text of a statute and its relationship to other statutes.  Accordingly, I note that the legislature expressly located the homicide photograph language of PA 13-311 in a new FOIA exemption and placed it squarely among the other 26 exemptions codified in General Statutes section 1-210(b) of the FOIA.

Next, “the legislature ‘is presumed … to be cognizant of judicial decisions relevant to the subject matter of a statute … and to know the state of existing relevant law when it enacts a statute.’” State v. Fernando A., 294 Conn. 1 (2009).  Accordingly, the legislature is presumed to have known the following when it enacted PA 13-311:

• Unless otherwise stated, all FOIA exemptions are permissive, not mandatory.  That is, a government agency may invoke the exemption, but it is not required to do so.  If it wants to release requested information to the public, it may do so even though an applicable exemption exists.
• All public records are presumed to be open and available to the public. Therefore, the burden of proof is always on the government agency to persuade the FOIC and the courts that the requested information falls within an exemption.
• All exemptions must be narrowly construed.
• In Perkins v. Freedom of Information Comm’n, 228 Conn. 158 (1992), the Connecticut Supreme Court, interpreting the FOIA exemption for personnel and medical files, adopted the common law “invasion of privacy” tort standard for determining when the public interest in disclosure of such a file outweighs the privacy interests of the subject of the file.  That is, the Court adopted a legal standard for deciding when the public disclosure of such a file is “warranted” or, conversely, when the subject’s privacy interests outweigh the public interest in disclosure, such that the invasion of privacy would be “unwarranted.”  Very simply, an invasion of privacy occasioned by the release of such files is unwarranted if the information in the requested records is not a matter of legitimate public concern and the release would be highly offensive to a reasonable person.

Nothing in the text of the new exemption created by PA 13-311 is inconsistent or in conflict with any of the legal rules set forth above, including the Perkins test.  Thus, I conclude that the text of the new exemption, considered in its full statutory context and in light of existing law and judicial decisions of which the legislature is presumed to have been aware, is plain and unambiguous and must be interpreted as follows.

First, if a person makes an FOI request to inspect or copy a homicide photograph, the public agency (usually a police department) may exercise its discretion to release the photograph, even though it could assert the new exemption.

Second, if the department decides to assert the exemption, it bears the burden of providing that the release of the photograph “could reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members.”

Third, how should a court determine whether an invasion of privacy is “unwarranted”?  The existing Perkins test answers that question. If the release of the requested photograph “could reasonably be expected” to result in an unwarranted invasion of privacy, as defined using the Perkins test, the photograph may (not must) be withheld.  However, if the release of the photograph could not reasonably be expected to constitute an unwarranted invasion of privacy, again as defined by the Perkins test, it must be released.

Now, here is the problem–and the point of this post: the preceding interpretation of the new exemption is manifestly, totally, completely wrong once the legislative history of PA 13-311 is considered.

The General Assembly passed PA 13-311 in the waning days of the 2013 legislative session to make sure that the homicide photographs from the Sandy Hook tragedy would never be released pursuant to a FOIA request.  Here is what Representative Fox said about the new exemption when the House debated it:

The intent of this, Mr. Speaker, is to update our freedom of information laws and to make them consistent with federal freedom of information laws, including how they have been interpreted under the United States Supreme Court in the case National Archives and Records Administration versus Travis [sic Favish]. In that case and — and what we’re intentioned here to do is to recognize the privacy rights of victims of violent crime and those victims surviving family members. Mr. Speaker, the — what the amendment does is it — it does a few things. . . .  Also, Mr. Speaker, this amendment has a Section 2 and what it does there is it states that any records created by a law enforcement agency that would result in a photograph, a film, a digital, some sort of video, maybe — if that image depicts a victim of a homicide that the record could — and if that record could reasonably be expected to constitute an unwarranted invasion of privacy that that — that record be — may not be disclosed in order to protect the victim and the victim’s family members privacy rights. It’s the intention of this section, Mr. Speaker, that it — that it not be the burden of the family member to disclose — or to assert this right, but rather that it be presumed that they have this right. We don’t want the family members and the victims of– of these victims to have to go through additional court proceedings or commissioned hearings, so that — that — that’s the intent here. Also, Mr. Speaker, I should say it specifically intended that this would include the family members of the victims of Sandy Hook. In case there’s any doubt or any question when those are looking for legislative intent.

Senator Williams made the same point during the debate in the Senate:

Madam President, and members of the Senate, the intent of what we’re doing here is very clear. That the public disclosure of 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. Particularly in this case when we know who the perpetrator was and that he is deceased and where there is no legitimate claim of official misconduct there can be no public interest that would require the disclosure of such intensely painful pictures. In this case it is our clear intent that the privacy interests of the victims and their families outweighs any public interest in the disclosure of the photos of the Sandy Hook victims.

In short, the legislative history of PA 13-311 establishes that the General Assembly intended: 1) to establish a categorical prohibition on the release of Sandy Hook homicide photographs; 2) to eliminate the presumption of public access with respect to homicide photographs generally and to put the burden of proof on the requestor to justify the release of homicide photographs.  By citing the Favish case, in which the United States Supreme Court held that autopsy photographs are categorically exempt from disclosure under the federal FOIA, legislators in the House and Senate clearly intended the same result with respect to the Sandy Hook photographs, and probably all homicide photographs of children in general, if not adults as well.

Under section 1-2z, none of this legislative history is relevant–none of it may be considered by a judge when interpreting PA 13-311–because the language of the new exemption is plain and unambiguous and does not lead to bizarre results. The text of the exemption, considered in relation to other statutes and interpreted in light of existing laws of which the legislature is presumed to have been aware, does not support a categorical prohibition on the release of homicide photographs, does not support the conclusion that the legislature intended a legal standard other than the existing Perkins standard to govern the disclosure of such photographs, and does not support shifting the burden of proof to the requestor.

The legislature enacted section 1-2z in large part because it felt it would constrain judges from engaging in “judicial legislation.”  It didn’t want judges importing their own personal views about public policy into statutes under the guise of “interpreting” them.  It did not have faith that judges took their obligations as interpreters of statutory texts seriously, with the objective of adopting interpretations that were consistent with the legislature’s purpose and objective in adopting particular statutes.  But I dare say that any judge who interprets PA 13-311 according to its plain language, as set forth above, would be pilloried by the General Assembly (and the general public) for ignoring the “clear intent” of the legislature, as reflected in the legislative history.

Of course, a judge could easily avoid that likely public trashing by concluding that PA 13-311 is ambiguous–even though it really isn’t–and then looking to the legislative history to interpret the new exemption.  (This is one of the reasons why I’m not a big fan of section 1-2z; it creates an incentive for judges to be less than intellectually honest.)  Even if the statute is ambiguous, however, a judge is not free to adopt any interpretation that she wants.  Because a statute is ambiguous if it is susceptible to two or more reasonable interpretations, a judge may only resolve the ambiguity by adopting one of the reasonable interpretations. For example, even though the legislative history clearly establishes that the General Assembly intended a categorical prohibition on the release of homicide photographs, the text of PA 13-311 cannot reasonably be interpreted as imposing a categorical prohibition. Instead, it establishes a balancing test.

In sum, the application of section 1-2z to a statutory text can lead to perverse results.  It can lead to situations in which judges are forced to ignore what everyone knows to have been the legislature’s purpose and objective in passing a statute.  But section 1-2z is the law and judges must follow it when interpreting statutes, including new exemption 27 in the FOIA.

For the record, I think that the release of homicide photographs of children “could reasonably be expected to constitute an unwarranted invasion of privacy” under the Perkins standard. I suspect most judges would agree. Such photographs, therefore, are exempt from disclosure under the new exemption. But I don’t think all homicide photographs are necessarily exempt under the “plain meaning” interpretation of PA 13-311 that I have offered in this post.  Nor do I think that the plain language of the new exemption prohibits public agencies from exercising their discretion to release a homicide photograph, or at least allow the public to inspect them.  But I am quite certain that the legislature intended otherwise.

What this post illustrates, I hope, is the difficulty legislators face in translating thoughts and intentions, purposes and objectives, into statutory language, and the difficulties judges face when interpreting statutes. The General Assembly could have drafted PA 13-311 to state that “all photographs, images, etc, depicting a homicide victim who was a minor shall be categorically exempt from disclosure under the FOIA and shall not be released by any state or local public agency.” For whatever reasons, it did not do so. Section 1-2z teaches that legislative drafting decisions have consequences, sometimes consequences that are not in accord with what the legislature actually intended.