A Senate bill filed Thursday would make law enforcement agencies withhold any information that could be used to identify the victims of sex offenses, domestic violence, criminal abuse, stalking or human trafficking, raising First Amendment concerns for news organizations trying to cover such crimes.
Senate Bill 234 would create a new set of exemptions in the Kentucky Open Records Act, the law that requires disclosure of most public documents. Police would have to redact names, addresses, phone numbers and other information from records they released if it could be used to identify a victim of the various crimes listed in the bill.
The bill’s sponsor, state Sen. Julie Raque Adams, R-Louisville, drafted the measure in cooperation with the Kentucky Association of Sexual Abuse Programs.
On Friday, Adams said she filed the bill at the request of a constituent who was the victim of sexual assault several years ago. Television reporters in Louisville who saw the victim’s name in a police report called her for interviews, and a subsequent news story broadcast from in front of the victim’s home revealed enough context — without naming her — that her friends and relatives could figure out who she was, Adams said.
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“She wanted to have some sort of buffer between her and the press,” said Eileen Recktenwald, executive director of the Kentucky Association of Sexual Abuse Programs.
Jon Fleischaker, a First Amendment lawyer in Louisville who represents the Kentucky Press Association, said Adams’ bill would make it difficult for the news media to report on crime in their communities.
For example, Fleischaker said, the bill would allow police to withhold the addresses where rapes have occurred, which means a pattern of sexual assaults in a specific neighborhood would go unreported.
Without any names from spousal or child abuse cases — the abuser’s name would identify the victim if they were related, so they both would have to be concealed, he said — reporters would be unable to track cases through the courts or the state’s social services system, as the Herald-Leader recently did as it reported on a Berea girl tortured nearly to death by her father.
“One assumes this bill is being filed for laudable reasons, but it’s overkill,” Fleischaker said.
“The perpetrators of these crimes already know who their victims are,” Fleischaker said. “All this bill will do is give a reason for public agencies to redact or not release documents involving the crimes. We’re effectively depriving anybody of the ability to do an effective analysis of how well the police respond to spouse abuse or rape or any of the other crimes included.”
Adams said Fleischaker “is raising absolutely legitimate concerns for transparency and openness. But you have to balance that against the risks of re-victimizing someone.” While reporters might have a legitimate reason to contact a crime victim, there also could be times when an attacker, still on the loose, could track down his victim at home using public records, she said.
“We’re under no illusion that this (bill) is going to pass. But what we did do is introduce it to start the conversation,” Adams said.
Adams said she expects to discuss the language in her bill in coming days with groups representing the police and news media. She does not know if the bill will receive a committee hearing during this 30-day legislative session.
Kentucky newspapers have battled with police and regulatory agencies for decades over the information made available in public reports, especially when allegations of a sexual nature are involved.
In 1992, the Kentucky Supreme Court established a case-by-case balancing test — weighing the public’s right to know how well the government works against an individual’s right to privacy — after The Courier-Journal sued a state regulatory board for access to patient complaints about alleged sexual misbehavior by a psychologist. The court ruled against the newspaper in that case.
“The information sought touches upon the most intimate and personal features of private lives,” the court’s majority wrote. “The policy of disclosure is purposed to subserve the public interest, not to satisfy the public’s curiosity.”
More recently, in 2013, the Supreme Court sided with the Herald-Leader and The Courier-Journal in their fight with the Kentucky Cabinet for Health and Family Services over internal records showing how child abuse cases were handled. Those files included the names of abuse victims. The cabinet later agreed to pay a $250,000 penalty for violating the Open Records Act, and it also reimbursed the newspapers for $449,000 in legal fees.