Connecticut’s Freedom of Information Commission and an open-records advocacy group say a bill to exempt from disclosure witness statements captured on police body cameras is written overly broad and could lead to the suppression of too much information.
The legislation – Senate Bill 234 – was proposed by the Department of Emergency Services & Public Protection. According to DESPP Commissioner Ronnell Higgins the bill was written to “align” the Freedom of Information Act with the new reality of officers’ body-worn camera footage.
Higgins and members of his staff told the Public Safety and Security Committee last week that police body-cameras are now commonly used by officers to collect sworn witness statements on video rather than in writing. Higgins reminded the committee that the 2020 Police Accountability Act mandated that law enforcement personnel use body-worn cameras while on duty.
“While FOIA already exempts signed witness statements from disclosure, those same statements are regularly captured on body camera recordings,” Higgins said. “This proposal would apply to witness statements whether signed or captured on paper or on a recorded video. In addition, also pursuant to the Police Accountability Act, changes in statute have also added additional records to the list of items exempted under the Freedom of Information Act. This proposal would bring that law and the Freedom of Information Act law into alignment.”
The Connecticut Police Chiefs Association (CPCA) also submitted testimony in support of the bill.
However, according to Connecticut’s Freedom of Information Commission, the way the proposal is written “is broad and would open the door to the suppression of all information obtained from witnesses regardless of whether such information is contained within an official, sworn statement. It would allow the redaction of witness statements contained within police reports, or recorded by video or audio (e.g., 911 calls). Such a broad exemption would strike a critical blow to transparency in criminal investigations.”
The FOI Commission’s testimony said the language of the bill would need to be narrowed.
Limiting access to information is also a concern for the Connecticut Council on Freedom of Information (CCFOI). The counci’s mission is to enforce the FOI Act and ensures access to public documents.
Michele Jacklin, legislative co-chair of the council, testified that she also believed the language of the bill was too broad in scope. Jacklin said the FOI Act already protects the identity of witnesses, leaving SB 234 as an unnecessary addition.
Jacklin also said the bill’s provisions on body-worn cameras runs afoul of the First Amendment.
“It would seem that the objective of Section 2 is to prevent the news media from disseminating images or videos of an accident or crime scene that involves a minor, a victim of domestic or sexual abuse or a homicide or suicide victim” Jacklin wrote. “In our view, such a law would be unconstitutional.”
She cited the U.S. Supreme Court’s repeated rejections of prior restraint except in extremely narrow circumstances where the dissemination of information or images threatens national security. She said the protection was first established in Near v. Minnesota in 1931 and has been upheld numerous times, most notably in New York Times Co. v. United States in 1971.
“Government has no place in a newsroom, and using legislation to make editorial decisions is a dangerous precedent,” Jacklin wrote.
The Judicial Branch also voiced concern that SB 234 would have a negative impact on crime victims and their families. Specifically looking at Section 2 – the scene of an incident that could be constituted as an unwarranted invasion of privacy of minors or victims on film or video – the branch’s statement says a visual image depicting “a scene of an incident” of a minor or victim can do more harm than good.
By stating “scene of an incident,” the Judicial Branch said that the bill eliminates the protections in other locations where these records could be generated – meaning you could move the victim from the location and it would be warranted.
“We are pleased that the bill expands the types of victims receiving protection from FOI disclosure to include a minor, a victim of domestic or sexual abuse, a victim of suicide, or a deceased victim of an accident. However, the “scene of an incident” language has the reverse effect,” the Judicial Branch wrote.
Russell Blair, Director of Education and Communications at the FOI Commission, testified before the committee last week to clarify and respond to questions about the commission’s written testimony.
“A lot of departments have replaced signed witness statements with those recorded statements,” Blair said. “Our concern is that by removing the word ‘signed,’ you potentially open the door to the suppression of all kinds of different witness information, whether it comes from a 911 call, whether it’s witness information contained within a police report – the types of information that is routinely released and is revealing about criminal matters gives important information about what happened. How police determined what charges were applicable.”
Blair said that if the law enforcement wants to treat statements obtained via body-worn cameras as the equivalent of written statements, he said the commission suggest using narrower language that makes that more clear.”
