TAMPA — When a new amendment to the Florida Constitution to bolster the rights of crime victims took effect two months ago, the public records policies of law enforcement agencies across the state were thrown into disarray and open government advocates cried foul.
Amendment 6 put new restrictions on the disclosure of information that could be used to identify victims. But the Florida Police Chiefs Association and the Florida Sheriffs Association have said the amendment is vague, confusing and in conflict with existing public records laws.
The result: Law enforcement agencies have settled on different interpretations of the amendment, leading to inconsistent policies throughout Florida. Meantime, open government advocates say the amendment is reducing transparency because agencies are automatically walling off information the public has a right to know.
"If the Legislature doesn't step up and clarify this and give us some sense of how this is to interpreted, I think there will be a lawsuit, and I would prefer to avoid litigation," said Barbara Petersen, president of the First Amendment Foundation.
Now, one of the amendment's staunchest supporters has filed a bill to spell out how Amendment 6 should be put into action. But SB 1426, filed by state Sen. Lauren Book, skips over two of the main questions that have arisen over the amendment.
Passed in November by 62 percent of Florida voters, Amendment 6 was modeled after a similar measure in California known as Marsy's Law. The 11 rights outlined in the amendment include consideration of a victim’s safety when authorities set bail for the accused and informing a victim of developments in the prosecution.
At issue is language in the amendment to protect the victim's right "to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim."
"One of issues we'd like to see clarification on is whether or not the victim confidentiality provision is automatic or if victims have to opt in, and we don't see anything in this bill that resolves that question," David Marsey, general counsel for the police chiefs association, told the Tampa Bay Times.
Nor does the bill specify what "information and records" should be withheld by law enforcement agencies as they respond to public records requests and release information about activity in their jurisdictions, Marsey said.
That's by design, Book said.
In emailed answers to the Tampa Bay Times, the Plantation Demcorat said, "Specific language regarding the confidentiality of personally identifiable information that could be used to locate or harass a victim was not included in the implementing bill as it is already addressed in the very clear and straightforward Marsy’s Law.
"Any type of information that can be used to identify, locate and harass a victim should be considered automatically confidential."
Book said it's up to victims or their families to choose whether they want their information publicly disclosed. That means agencies such as the Tampa Police Department and the Hillsborough County Sheriff's Office are following the law with their decisions to stop releasing names, addresses and other information about crime victims after Marsy's Law took effect Jan. 8, Book said.
Other agencies, including most in Tampa Bay, are taking a different approach.
The sheriffs' offices in Pinellas, Pasco and Hernando counties and the St. Petersburg and Clearwater police departments are releasing victim information according to existing public records laws unless a victim or family member requests that the information be withheld.
All agencies contacted by the Times are now handing out information about Marsy's Law to victims at the start of every investigation. Book's bill makes that a requirement.
Pinellas Sheriff Bob Gualtieri, who serves as legislative chairman for the Florida Sheriffs Association, told the Times in January that it's clear Mary's Law was not written to give victims automatic "blanket confidentiality." Association spokeswoman Nanette Schimpf said the association was still reviewing Book's bill and had no comment.
Petersen, the First Amendment Foundation president, said Amendment 6 directly conflicts with a clause in the Florida Constitution that ensures the right to direct access to public records. She noted that state law already includes provisions that keep confidential the identities of domestic violence and sex crime victims.
Petersen said she is receiving near-daily reports from reporters and others around the state about the variety of ways agencies are applying the amendment.
In one case, the Sarasota County Sheriff's Office refused to release the name of a day care center in Venice that employed a worker accused of abusing children. In another jurisdiction, officials refused to release the location where a sexual battery suspect was arrested because the arrest took place near the victim's home.
In addition, Petersen said, lawmakers should address whether Marsy's Law must be applied retroactively. The Tampa Police Department is redacting victim info from records relating to cases pre-dating the amendment if the victim's information hasn't already been released, spokesman Steve Hegarty said. The Hillsborough Sheriff's Office is redacting victim information from all records regardless of the date, spokesman Danny Alvarez said.
Book said she doesn't believe there should be a retroactive application of the law.
"While I would love for the provisions contained within Marsy’s Law to apply to all victims whether or not their case was in the court system before Amendment 6 was passed, I am a person of reason," she said.
Book’s bill does address the ambiguity surrounding how to define the term “victim.” The definition includes “the victim’s lawful representative, the parent or guardian of a minor or next friend as determined by the court, the next of kin of a homicide victim, and the victim’s support person.”
The bill also states that law enforcement officers, correctional officers and correctional probation officers who become crime victims in the course of their official duties are not eligible to have their names kept confidential. Petersen called that a welcome addition.
Tampa Police Chief Brian Dugan was among those who reached out to Book to voice concerns about the way disclosure protections apply to police. In a recent meting with the Times editorial board, Dugan recalled a case in which a man charged at a police officer with a knife. The officer shot and wounded the man but because the officer was also a crime victim, Dugan said, the department could not release his name unless he consented.
"I called the officer the next day and said, 'Look, by law you're protected but I think in full transparency as a police department, we should be able to release your name, and he agreed to that," Dugan said.
Book's bill has been assigned to the criminal justice, judiciary and appropriations committees. She said a companion committee bill is expected to be filed in the House.
But two top Republican senators indicated the Legislature might not even get to Marsy's Law this year.
Keith Perry of Lauderhill, who leads the Senate's Criminal Justice Committee, and Jeff Brandes of St. Petersburg said their staffs are researching the issue but that lawmakers might choose to act next year.
"That's a very realistic option for us," Brandes said. "We could see how the different communities are implementing this law, how the local sheriffs are implementing it, and then come back next year with a kind of best-practice' model that may come out of that."
Times/Herald staff writer Lawrence Mower contributed to this report. Contact Tony Marrero at [email protected] or (813) 226-3374. Follow @tmarrerotimes.