An early draft of a report from a task force weighing privacy against public disclosure would have recommended making it a felony to copy certain law enforcement records without permission.
That language was softened by the time the panel approved its final report during Friday’s meeting. The report reaffirms recommendations approved by the group last month that would change the way the public accesses some law enforcement records.
The policies endorsed by a majority of the task force would permit a member of the public to view certain law enforcement records pertaining to homicides, but would place the burden of justifying the public release of those documents on the member of the public. Previously, government agencies had the burden of explaining why they did not want to release a record.
The new standard would apply to photographs and videos depicting homicide victims as well as recordings of 911 calls and other police communications describing their bodies. The group also approved a recommendation that the legislature passes a law making it a crime to copy these records without permission.
But according to Colleen Murphy, director of the Freedom of Information Commission, an early draft of the report included language that would have made that crime a Class D felony. Murphy said the group never approved such language and it was removed from subsequent drafts of the report. But Murphy and FOI advocate Jim Smith reacted to the provision in a section of the report’s appendix dedicated to statements from members of the group.
In her statement, Murphy pointed out that a Class D felony charge is “equivalent to strangulation, promoting prostitution and robbery, among other crimes, punishable by up to five years in prison.”
On the other hand, if public officials refuse to comply with an order from the Freedom of Information Commission, they are only subject to a Class B misdemeanor charge, Murphy wrote.
In his statement, Smith, a former newspaper editor and current president of the Council for Freedom of Information, called the felony provision “lunacy” and an “outrageous step — a first for FOI laws.”
“The FOI statutes could use tougher fines against those officials who violate the law. Perhaps we should change the law to include felony convictions and prison sentences for officials who break FOI law by refusing to release public information,” he said.
The final report only recommends that the legislature make taking or copying the records without permission “a crime” and does not recommend a specific classification. During Friday’s meeting, Murphy and Smith contested whether the task force voted on that provision during its hectic December meeting. Both said they did not recall even discussing the issue.
However, most of the the task force disagreed and put the question to rest Friday by rejecting an amendment by Murphy and Smith which would have removed that and several other provisions they said the group never voted on.
Ultimately, the task force approved the report in a 15-2 vote, with Smith and Murphy opposing the document. Susan Storey, the state’s chief public defender, voted in favor of approving the report but indicated that if legislation is drafted based on its recommendations she would oppose the bill.
“I think the report is an accurate reflection of what happened in this room, but it is not my intention to support the recommendations,” she said. “. . . I think that curtailing the free flow of information is injurious to the justice system.”
Don DeCesare, one of the panel’s two chairman and the manager of two radio stations, said the report would not have been what he recommended personally, but represents compromise.
“I think we did in fact achieve the balance we were asked to find and my guess is that if each of the 17 of us were asked to write this, it wouldn’t have come out exactly as it did. That’s probably a good notion that indeed, it’s pretty much right,” he said.