A recent ruling from the Freedom of Information Commission (FOIC) clarified the meaning of language in a Freedom of Information Act (FOIA) exemption created in the wake of the Sandy Hook shooting that prohibits the disclosure of law enforcement records depicting victims of homicide if they could invade the privacy of a crime victim or their family.
Responding to a request for body-worn camera (BWC) footage showing the victim of a homicide, the Waterbury Police Department denied the request on the grounds that the records, if released, would invade the privacy of the victim or their surviving family members.
Under the post Sandy Hook shooting execmption, intended to protect the privacy of victims’ families, any visual records created by law enforcement agencies at any level that depict victims of domestic or sexual abuse, homicide, or an accident are prohibited from FOIA disclosure if doing so could “reasonably be expected to constitute an unwarranted invasion of the personal privacy of the victim or the victim’s surviving family members” or if the records depict a minor.
Neither the FOIC nor state courts had previously ruled on the specific meaning of the statutory language.
Citing this exemption, Waterbury denied a request from John Morgan that included BWC footage taken the night Morgan, who is currently serving a 12-year sentence for manslaughter, was arrested for the January 2022 killing of Franky Lanier Hogg, Jr. Morgan’s request specifically included footage depicting him sitting in his kitchen near Hogg’s body.
Morgan claimed he had previously been shown the unredacted footage by a prior lawyer while incarcerated at the Walker Correctional Institution, but that footage Waterbury police provided to his sister, designated to receive the footage as the Department of Corrections does not allow incarcerated individuals to receive media such as flash drives that they cannot play, was missing.
The FOIC’s ruling found that Morgan’s request easily satisfied several requirements of the statute, including that the records were created by law enforcement and depicted a victim of homicide.
For the meaning of an unwarranted invasion of privacy, the FOIC turned to a U.S. Supreme Court ruling interpreting similar language in the federal Freedom of Information Act in a case involving the suicide of Vince Foster, Deputy White House Counsel for former president Bill Clinton.
In 2004, the Supreme Court ruled that a federal FOIA request from Allan Favish, seeking photographs depicting the condition of Foster’s body taken by investigators in relation to various conspiracy theories that circulated after Foster’s death was ruled a suicide, had been properly denied by the National Archives and Records Administration under Exemption 7(C).
Exemption 7(C) prohibits the release of federal law enforcement records if they could “reasonably be expected to constitute an unwarranted invasion of privacy.”
While Favish argued Foster’s family had no right to privacy under the law, the Supreme Court’s ruling found that the right to privacy protected by the exemption was broader and included the family. Foster’s sister testified to the harassment the family suffered from conspiracy theorists and objected to the release of the photographs because it would make her family the focus of “unsavory and distasteful media coverage.”
“As we shall explain below, we think it proper to conclude from Congress’ use of the term “personal privacy” that it intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions.” the court wrote in its decision, also noting that private citizens have an interest in preserving their privacy against information contained in government records “as the result in mere happenstance.”
Because the privacy exemption in Connecticut’s FOI statute is similar to Exemption 7(C) in the federal FOIA, hearing officer Marybeth G. Sullivan followed it in responding to Morgan’s complaint.
“Applying the Favish analysis to the present case, first, with respect to whether privacy concerns are present regarding the redacted BWC footage at issue, it is found that the footage is a government record containing information about the victim as the result of “mere happenstance,” depicting the state of the victim’s body after his untimely death.” Sullivan wrote. She added that because the homicide had occurred within the last five years, there were privacy concerns.
Sullivan then turned to determining whether the privacy interests of Hogg or his family were at issue, noting that the law did not stipulate who was responsible for determining whether a victim had surviving family members, but that there was still clear legislative intent that the statute was intended to cover family members. Sullivan found that Hogg and any surviving family members had a privacy interest in the footage at issue.
Because Morgan was seeking the footage in order to help find an attorney who could appeal his conviction, Sullivan ruled that Morgan was implying “governmental impropriety or misconduct” but did not provide any evidence that would lead a reasonable person to believe it had occurred. As a result, Sullivan found there was no evidence to establish a public interest in disclosure of the records.
She concluded that Waterbury police had not violated FOIA by withholding the footage.
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