Legal Update

Florida’s Victim Rights Amendment (Marsy’s Law) – Withholding Victim Information

Amendment 6, the victim’s right constitutional amendment, modeled on a similar measure in California (known as Marsy’s Law), as well as provisions in several other states, was approved in November by 62% of Florida voters. It went into effect January 8.  Here’s a link to the provision: http://flsenate.gov/Laws/Constitution#A1S16   Since it was approved, a great deal of confusion has arisen on the amendment’s possible effect on public records under the Sunshine Law and we have received several calls about how to interpret it. For example, recently journalists have encountered difficulty in getting victim information from police involving two murder cases near Busch Gardens and in a Tallahassee traffic accident scene involving a dead body.

The particular provision causing most of the confusion is paragraph (b)(5), which states that crime victims and their families have the “right” to prevent disclosure of information or records that could be used to locate or harass the victim or the victim’s family.

This language has resulting in a swirl of confusion in a couple of key areas.

First, some law enforcement agencies (e.g., mainly sheriff’s departments) read the provision to allow withholding of information to the public only if the victim requests them to do so–thereby limiting the law’s impact. Others (e.g., police in Tampa, Tallahassee, and Miami) argue that a request is not necessary under (b)(5) because it contains no such requirement (unlike the next paragraph (b)(6) which does) and, therefore, automatically withhold all information that could be used to locate homicide victims or their family.

Another issue of confusion is what information should be withheld. Does it apply to all crimes? To all victims? To what extent should locational information be withheld? Is it retroactive to historical information? Law enforcement agencies seem to be at odds on these questions. One police department, for example, is apparently redacting every victim’s name from every report, including reports from years ago. Another department is withholding suspect information, as well victim information. Court systems, too, will have to grapple with the provision. What about victim information in court records—are documents going to be redacted; are hearings going to be closed?

What makes this confusion even more concerning is the stunning breadth of Marsy’s Law –it applies to all crime victims for all crimes, treating the victim of a car burglary the same as a sexual assault victim. In so doing, the amendment fails to connect any kind of credible threat of danger of the offense to what triggers victim secrecy.

It goes without saying, broadly withholding this information can have unintended negative consequences. Releasing the victim or locational information might allow citizens to assist law enforcement whereas keeping it secret might hinder their efforts. And, perhaps most importantly, if broadly viewed to hide important crime information, the amendment will reduce the public’s ability to keep law enforcement accountable.

As a result, many organizations including FPA and FAF and a growing list of state officials, want the Legislature to flesh out the amendment language and create appropriate exemptions.

The legislation could spell out the proper parameters of the amendment taking into account that there is already a number of victim exemptions in state law including protections for minors, victims of sex crimes and domestic violence. Apparently, Sen. Lauren Book is currently drafting a clarifying bill and these groups will be weighing in on the legislation.

As for what to do in the meantime, the answer may be not very much—at least regarding the non-disclosure of victim information. Given that session starts the first week in March, it is uncertain if a lawsuit is the way to go. We will be following any legislation closely and will report as we hear.

Here are two good articles on the subject–

http://www.tampabay.com/news/publicsafety/law-enforcement-agencies-withhold-victim-information-as-confusion-swirls-around-new-marsys-law-20190116/

https://www.floridaphoenix.com/2019/01/16/confusion-reigns-over-marsys-law-its-going-to-need-more-clarity/