Op-ed: Beware! (of Gov. Malloy’s new Victims’ Rights panel)

Jim H. Smith

As the work of the Task Force on Victim Privacy and the Public’s Right to Know — which proposed new hurdles to information about violent crime — was shunted aside by the General Assembly, it is clear the governor wants to try again. This time there will be no Freedom of Information advocates in the way.

Gov. Dannel Malloy’s new commission on victims’ rights, appointed April 7, includes some of the same cast of characters who pushed for more secrecy the last time around. The chairman is state Victim Advocate Garvin Ambrose, who most aggressively sought more secrecy. He is joined by Chief State’s Attorney Kevin Kane, who at one point on the privacy/FOI task force, exploded and declared that he wanted a vote making secret all photos and 911 tapes of every crime committed in Connecticut.

Malloy, a former prosecutor who claims to love FOI, clearly has a plan. He joined with General Assembly leaders in 2013 and signed legislation after the Sandy Hook School massacre that made secret first responder communications and crime scene photos of all murders. Then they created a task force to study how much the public should know about violent crimes and stacked it with “privacy” advocates, adding a few FOI/media members, including me. Kane and Ambrose are not pleased how it came out. The legislature wisely discarded the task force recommendations. So now the governor has a new group, but without anyone who champions the public’s right to know.

As more and more guns flood the land of the free, and more and more maniacs with guns massacre more and more people, it is clear that police and prosecutors are failing more and more to protect citizens from the carnage. Maybe that is why they want to hide criminal investigation information that has always been public. It is evidence of their failures.

Perhaps that is unfair. Perhaps we are asking too much of our public safety officials. Maybe we need to make mental health treatment more public and know more precisely who the armed lunatics are. There’s even a Connecticut task force on criminals and mental health, but it has complained that it can’t get enough information.

The secrecy fanatics keep arguing that this has nothing to do with the First Amendment. They don’t want any Constitutional arguments, because, obviously, freedom of the press was established so the press can be a watchdog on government. It’s hard to be a watchdog, when you can’t get basic information.

Freedom of information laws in Connecticut and elsewhere are continually being watered down so that it is harder and harder for citizens to know what the government is doing. Secrecy advocates try hard to keep the debate only about FOI laws, which they can erode relatively easily.

It’s much harder to change the U.S. Constitution. The leadership of my task force commissioned a staff study, which cited U.S. Supreme Court rulings on how there is no First Amendment right to obtain government records. The report distinguished between the right of the media “to communicate information, rather than a right of access to the information.” It quoted a 1965 U.S. Supreme Court decision (Zemel v. Rusk) that “The right to speak and publish does not carry with it the unrestrained right to gather information.”

But let’s go back to the Father of the Bill of Rights, James Madison. He wrote that, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

The Supreme Court put it this way in 1972 in Branzburg v. Hayes: “News gathering is not without First Amendment protections . . . without some protection for seeking out the news, freedom of the press could be eviscerated.”

And from Supreme Court Justice Lewis Powell: “This Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression.”

In 1976, in overturning lower court decisions that forbade the release of a confession by a man charged with murder in Nebraska, the Supreme Court ruled, “There can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system . . . the decision of what, when, and how to publish is for editors, not judges.”

As the governor’s new advisory commission goes about its work, we should keep in mind that censoring what citizens can know about crime could violate our Constitution. We should be ever vigilant against anyone who heads in that direction.

James H. Smith was a reporter and editor for 40 years at Connecticut newspapers and is president of the nonprofit Connecticut Council on Freedom of Information.

Editor’s Note: Gov. Malloy’s communications director, Andrew Doba, called Smith’s comments inaccurate. Doba emailed The Mirror the April 7 press release announcing creation of the Victims’ Rights Enforcement Advisory Commission and pointed to this sentence in the release:  “The commission will not examine any provisions related to Connecticut’s freedom of information laws, but instead will focus on the direct relationship between victims’ rights and the criminal justice system as a whole.”