A 43-year-old man driving a sedan in Tampa this week ran a red light, crashed into a semi-trailer truck and died.
Days earlier, a man trying to cross U.S. 19 in Hudson stepped into the path of a van. The pedestrian, a 61-year-old man, was killed.
The Florida Highway Patrol issued news releases on the crashes within hours, just as the agency has for years. But the releases were missing a key detail: the names of the people involved.
The omission was by design, part of a new policy designed to comply with Marsy’s Law, a state constitutional amendment designed to protect victims of crimes.
Although the law explicitly refers to “crime victims,” the Highway Patrol is now omitting from its news releases the names of every person involved in every crash, regardless of whether investigators suspect a crime was committed. Neither of the crashes cited above, for example, resulted in criminal charges.
State officials say names that can legally be released to the public will still be available in crash reports completed later. But an open government expert contends the new policy is too broad and will limit Floridians’ ability to know what’s happening — and who’s dying — on the state’s roads.
“When the government, particularly law enforcement, withholds information from us, it erodes public trust,” said Barbara Petersen, president emeritus of the First Amendment Foundation. “It’s government’s job to give us the information that we need to be informed and engaged in our communities."
The Highway Patrol policy is the latest fallout from a law that has sparked confusion and shrouded information that had been available under existing public records law.
Passed in November 2018 by 62 percent of Florida voters, Amendment 6 was modeled after a similar measure that originated in California and is now law in 10 states. It’s named after Marsy Nicholas, a University of California senior who was murdered by her ex-boyfriend in 1983. The Florida version, pushed by the advocacy group Marsy’s Law for Florida, took effect in January 2019.
Among the 11 rights outlined in the amendment are the 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.”
The amendment doesn’t specify whether this confidentiality provision is automatic or if crime victims have to request the protection. The result is a patchwork of policies and procedures by law enforcement agencies across Florida that interpret the amendment differently.
The Hillsborough County Sheriff’s Office and Tampa Police Department won’t release victim names unless the victims or their families opt out of the Marsy’s Law protection. The St. Petersburg Police Department and Pinellas County Sheriff’s Office release names unless victims say they want them withheld.
Some agencies, including the Tampa Police Department and Pasco County Sheriff’s Office, are applying the law to officers who use force in the line of duty.
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The Highway Patrol, which operates under the state’s Department of Highway Safety and Motor Vehicles, routinely investigates traffic homicide cases that result in criminal charges such as leaving the scene of a crash involving injury or death and DUI manslaughter and serious crashes that don’t involve any criminal charges.
The agency typically issues a news releases for these incidents, withholding the names of the deceased until next of kin is notified. Under its interpretation of Marsy’s Law, the Highway Patrol only withholds names from an accident report or other public record if victims specifically ask the agency to do so.
Like many news organizations, the Tampa Bay Times uses the news releases to report on fatal crashes and other newsworthy roadway incidents in a timely fashion. There are many fatal incidents to report: In 2018, the most recent year available from the state, 436 of the 3,135 people who died on Florida’s roads were in Hillsborough, Pinellas, Pasco and Hernando counties.
On April 24, the Highway Safety Department released a statement announcing the policy change. The statement said the department is committed to keeping the public informed while “balancing this transparency with our charge to protect the victims of crimes and their families.”
Attorneys who represent state and national media organizations including the Times contacted state officials to express concern about the change.
In an emailed response, Christie Utt, general counsel for the Highway Safety Department, said the Highway Patrol is not mandated by law to “proactively" provide information in news releases. The new policy, Utt wrote, “quite simply excludes all personal identifying information contained in a press release and does not impact the release of public records.”
The Times asked the department how Marsy’s Law justifies the withholding of names of people involved in crashes that aren’t criminal in nature.
“We continue to engage with stakeholders, such as Marsy’s Law for Florida, review current procedure and implement needed changes,” Highway Patrol Captain Peter A. Bergstresser responded in an email. “The Florida Highway Patrol is committed to evaluating the implementation of this procedure and will make adjustments as needed.”
Media organizations that want to report the names of people involved in crashes investigated by the Highway Patrol will now have to submit a records request to the Highway Safety Department for a crash report on each incident. By law, an initial crash report must be completed within 10 days. The department would then release a version redacted according to state law, including Marsy’s Law.
The department charges $10 for a copy of the report and is not required to provide the document within a specified period of time.
“You’re going to have make a public records request, wait to the get the record and probably have to fight with them in order to get the information released, which is more delay," said Petersen, the former First Amendment Foundation president. The nonprofit foundation, of which the Times is a member, advocates for open government. “How does that benefit that public? It doesn’t."
The effective result, Petersen said, will be that the names of some people who die on Florida’s roads will go unreported. Many news outlets have limited staffing and financial resources so it won’t be possible to request and pay for a report in every case, Petersen said.
Marsy’s Law for Florida, the group that lobbied for the amendment, praised the decision in a news release this week.
Jennifer Fennell, a spokeswoman for the group, told the Times that its representatives contacted the Highway Patrol about its news release policy after “a really egregious situation" involving a husband and wife whose vehicle was struck head-on by an intoxicated driver.
The wife was killed and the husband had to undergo emergency surgery, Fennell said in an email. The accident happened at 9 p.m. Early the next morning, the Highway Patrol without consent released information about the victims in a press release — their name, place of residence and medical condition, Fennell said. The man’s daughter learned of the crash from a newspaper article.
“As a result of our conversations with them, the FHP/FHSMV chose to make the policy change because it was the right thing to do,” Fennell said.
In situations where law enforcement agencies determine there is no crime victim, Fennell said, “it is up to them and their policies on how that information is handled.”