A bill seeking to exempt depictions of deaths from Florida’s public records laws is making its way through the legislature, and freedom-of-information advocates are warning that the repercussions of such a broad measure could be detrimental to the public’s ability to hold law enforcement and government agents accountable.
“It would be harder for the public to know about these kinds of issues, and much harder, if not impossible for any oversight of law enforcement,” says Barbara Petersen of the First Amendment Foundation, a nonprofit based in Tallahassee. “And not just law enforcement, quite frankly, because this is any video, or any recording of either the killing of a person or the events leading up to the killing of a person. So for example, in the Tampa Bay area a couple years ago we had the Carlie Brucia case where the security tapes that were critical in that case would have been exempt from public disclosure under this bill.”
Eleven-year-old Carlie Brucia was abducted and murdered in 2004, and the security tapes from a car wash near her home captured a man leading the young girl to his car shortly before she was reported missing. With the help of technology provided by NASA to enhance the images, the FBI was eventually able to locate Brucia’s killer and bring him to justice.
State Sen. Ellyn Bogdanoff, R-Fort Lauderdale, says her bill stems from the police dashboard video recording of the murder of two Tampa police officers, and was written to protect victims’ family members.
“It’s about people and their families. Sometimes it can be extremely disturbing to have it played over and over again on the news or any other forums,” Bogdanoff said in a recent interview with a Tampa news station.
The legislation, sponsored in the House by Rep. Rachel Burgin, R-Riverview, is built upon the foundation laid by a 2001 law exempting autopsy photos from public records in the aftermath of race car driver Dale Earnhardt’s death.
“That went kind of viral, and states all over the country followed suit,” Ms. Peterson says of the autopsy exemption. “So there is that concern that it starts in Florida and it goes everywhere.”
Originally intended to be narrower in its scope, the bill has the potential to shield government agents from wrongdoing or at a minimum keep incidents from public’s purview and scrutiny.
“When the lobbyists first came to us over the summer, the idea was to protect videos that showed the killing of law enforcement officers,” Petersen says. “Well, this goes way beyond that. Even that would be problematic, but this is even more so. Last summer, when they brought this to us, I had problems with it. There was a case in Idaho, where you had two prison guards captured on security tape watching two inmates beat a third inmate. That would not be available under this exemption. Now, that didn’t happen in Florida, but the point is that we would never know about it. [There] might be an internal investigation, [there] might be a criminal investigation, but it also might be something that we never hear about because the tapes are not subject to disclosure.”
“Proponents of the bill say well you can go to court and get a court order. Well, that’s if we know about it,” she adds. “They also say the surviving family members can give it to you. Well, that’s if the surviving family members know they have a right to obtain it, and that’s assuming there is s family member. What if we had a kid who had grown up in foster care without parents?”
“I understand the sensitivity of these issues, but holding law enforcement and our government accountable and providing a right of oversight is critically important. And if they close access to these tapes, my concern is that we lose all opportunity for oversight and accountability. The Martin Lee Anderson case just epitomizes everything that we’re concerned about.”
The 2006 beating of 14-year-old Martin Lee Anderson in a Bay County boot camp made national headlines following the release of a security tape that captured the events leading to the boy’s death. Originally deemed a natural death, a second autopsy prompted by the videotape’s release revealed Anderson had died due to suffocation at the hands of the boot camp guards. The video played a key role in the trial against seven boot camp guards and a nurse involved in the altercation, who were ultimately acquitted of any wrongdoing.
“One very important point is that, frequently it is the photograph, it’s the audio recording, it’s the video recording that is our only objective evidence of what occurred,” Petersen says. “We can have a law enforcement officer’s description in his incident report, we can have the medical examiners written description, but it’s subjective and can sometimes been misleading.”
“When the autopsy exemption was being so hotly debated in Florida, there was a case that had been reported where an inmate had died while in custody. The cause of death on the medical examiner’s report was heart failure. The autopsy photos, which were available at the time, showed a very distinctive impression of a boot on his chest. He had been stomped to death. So the report said heart failure, and yes his heart failed after he was stomped to death.”
“I’m not saying that these people set out to mislead or that law enforcement is bad. I’m just saying that we need oversight and accountability because they do make mistakes on occasion. And we need access to the objective information and records that would allow us to hold them accountable.”
Petersen says she made suggestions that would allow for the merits of the initial idea for the bill to remain intact while preserving the presumption of openness Florida’s Sunshine Laws grant citizens with regard to public records. Audio/video recordings and photographic records are generally exempt during active criminal investigations, and, as the law is currently written, once the investigation concludes those records are subject to disclosure.
“My suggestion was that there be a waiting period of 72 hours from the completion of the investigation, and if the family of the deceased or the law enforcement agency wanted to ensure that these were not released because of the sensitive nature of them, they could get a court order,” she says. “That would allow the media or the public to go in and argue why they should be released, because under Florida law we have a presumption of openness. … But that didn’t’ go anywhere. I didn’t get a response.”
Calls seeking comment from Sen. Bogdanoff and Rep. Burgin were not returned.