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Law enforcement agencies withhold victim information as confusion swirls around new Marsy's Law

The Florida Sheriffs Association and Florida Police Chiefs Association say lawmakers need to clarify language in Amendment 6. Open government advocates say the measure goes too far.
The Tampa Police Department investigates a crime scene that involved a drive-by shooting on East Lake Avenue and North 22nd Street in 2017. Citing a new Florida constitutional amendment known as Marsy’s Law, the department is now withholding the names of crime victims and other information.
Published Jan. 17

TAMPA — Last week, two people were found dead in a car near Busch Gardens. Both had been shot.

Had the homicides happened a day earlier, the Tampa Police Department would have released the names, dates of birth and addresses of the victims to the public after detectives notified family members. But under an interpretation of a new amendment to the Florida Constitution, the department and some other law enforcement agencies are now withholding basic information about crime victims that otherwise would be public record in Florida.

It's one example of the confusion round Amendment 6 that has law enforcement agencies across the state asking the Legislature to pass a clarifying bill.

Meantime, open government advocates say the amendment conflicts with existing law and constitutional requirements, reduces transparency in the criminal justice system and is too vague to trigger the withholding of public records by government agencies.

"I understand their dilemma and I understand there's not a lot of clarity right now," said Barbara Petersen, president of the Tallahassee-based First Amendment Foundation.

"But they cannot willfully deny access to a request for public records unless there is specific constitutional or statutory authority, and this amendment does not provide that authority,"

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 or pretrial release for the accused and informing a victim of developments in the prosecution.

The amendment's potential effect on access to public records, including the news media's ability to gather and report information in the early stages of a case, received little attention in the campaign leading up to the vote.

Now, with the amendment taking effect Jan. 8, the result is playing out in real time as law enforcement agencies withhold victim information based on differing interpretations of its language.

"There are as many different opinions on how to construe this as there are legal advisers I've spoken to, and I've spoken to at least 10," David Marsey, general counsel for the Florida Police Chiefs Association, told the Florida Senate's Criminal Justice Committee last week during a workshop on the amendment.

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 key question is whether the right to have information withheld is automatic or if victims have to request the protection, Marsey told the committee. Another is what "information and records" should be withheld.

Marsey said the chiefs association needs the Legislature to clarify these points for agencies "who are on the front lines of fulfilling public records requests not only to the public but also to media outlets."

A representative for the Florida Sheriffs Association who spoke at the workshop echoed those concerns. Both the police chiefs and sheriffs associations supported the amendment, which was proposed by the state's Constitutional Revision Commission.

Some agencies are interpreting the amendment as an automatic and immediate blanket protection. That's why the Tampa Police Department declined to release the names of the homicide victims in last week's shooting case.

The amendment's wording is confusing and, at the very least, open to interpretation, said Tampa police spokesman Steve Hegarty.

"We are interpreting the words to mean all victims and their families, and to mean that we are prevented from disclosing any information that could be used to locate a victim or their family," Hegarty said.

That includes the victims' names, address, and phone number, he said. Under this interpretation, for example, the department would not have released the names of the four victims in the Seminole Heights killings that terrorized Tampa neighborhoods in the fall of 2017.

"Ours is a conservative interpretation that leans toward greater privacy for crime victims," Hegarty said. "We welcome clarification, whether it comes from lawmakers or from the courts."

The Hillsborough County Sheriff's Office is operating under the same interpretation, said agency spokesman Danny Alvarez.

Other agencies interpret the amendment's language to mean victims must ask for their information to be kept confidential.

"I don't think the intention was to create a blanket confidentiality," said Pinellas Sheriff Bob Gualtieri, who is also legislative chairman for the Florida Sheriffs Association. "I think it's clear the information doesn't become confidential unless the victim asks for it to be."

Gualtieri said agencies like his now have an obligation to notify victims about their rights and comply with their requests for privacy. Otherwise, though, his agency is releasing the information. The sheriffs' offices in Pasco and Hernando counties and the St. Petersburg and Clearwater police departments are taking the same or similar approaches, they told the Times.

But Sen. Lauren Book, a Plantation Democrat who supported the amendment and is working on a clarifying bill, said victims do not have to "opt-in" by asking that their information be withheld. Book plans to introduce a bill with clarifying language; the Legislature convenes March 5.

"The victim's right to control whether or not personal information is released prevents him/her from being re-victimized after the crime," Book told the Times by email. "Therefore, the Tampa Police Department is acting appropriately by not releasing that victim-identifying information, in this case names, to the media.

In addition to names, protected information about victims and their families includes home and work addresses, telephone numbers and personal assets, as well as any records that could be use to locate them, Book said.

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. Specific exceptions to the access are spelled out in state law. She noted that state law already includes provisions that keep confidential the identities of domestic violence and sex crime victims.

Under requirements spelled out in the Florida Constitution, lawmakers will need to specify why expanding these rights to all victims is a public necessity, Petersen said.

"When there's a real sensitivity and a need, we can close access to information, and we have," she said. "But sometimes the veracity of the victim and who that victim is is critically important."

The public should care about broad limits to records because it would result in less information about crime in their communities and reduced transparency in the criminal justice system, Petersen said.

Gualtieri agreed.

"There is value for the public to know and the media being the conduit," he said.

Contact Tony Marrero at tmarrero@tampabay.com or (813) 226-3374. Follow @tmarrerotimes.

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