New anti-transparency, mass shooting bill is the wrong solution to a real problem

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Florida’s effort to restrict access to public records from mass shootings has media and open government advocates up in arms

The U.S. is in the grip of a mass shooting epidemic with no cure in sight. As bullet-ridden bodies pile up, so do the questions about how the violence can be stopped and what, if anything, could be done.

But a bill currently fast-tracking in the Florida legislature will make it even more difficult to get answers when someone opens fire on a church, a school, or a nightclub.

It recently passed the state Senate unanimously, and will next be considered by the House.

The law would exempt photo, video and audio recordings from mass killings with three or more victims (not including the killer) from release if the records depict “acts or events that cause or otherwise relate to the death of a person, not including the perpetrator….”

Advocates for open records and freedom of the press decry the legislation as overly broad, restrictive and unnecessary.

Because it’s not publishing acts of violence that this law is really concerned about. It’s abouot restricting reporting.

Legitimate media very rarely publish such images and recordings, and then only after determining it to be in the public interest to do so, such as to contradict official versions of events. Even then, graphic elements are nearly always blurred or blacked out.

There are also other legislative remedies that can restrict publishing gruesome or disturbing material without exposing victims’ families to felony charges for sharing them, as this law does.

So why does this bill exist?

Several have voiced concerns that the bill will benefit the gun lobby by suppressing records that can drum up support for gun control, like reporting on school shootings, and that it also inhibits the public’s understanding of these events, preventing them from better preparing for the next mass shooting.

On Valentine’s Day 2018, a gunman entered Marjory Stoneman Douglas High School in Parkland, Florida, killing 14 students and three school employees and wounding another 17. It was one of the deadliest school shootings in U.S. history.

On the ground, word quickly began to spread that there had been deficiencies in how police handled it.

“Immediately it became apparent in Parkland that the issues we were hearing from sources was that there were a lot of questions about the response,” Dana Banker, managing editor of the South Florida Sun-Sentinel, told the Daily Dot.

Over many months, the Sun-Sentinel doggedly pursued the story, eventually establishing that the response had been delayed and chaotic, even potentially negligent.

A school watchman failed to call for a “code red” when the former student now charged for the carnage arrived; then, as children and staff were being killed inside, the officer assigned to the school hid rather than enter the building. Other law enforcement officers arriving on the scene lost precious minutes retrieving bulletproof vests before going inside, by which time the shooter had slipped away in the crowd. Law enforcement had even stopped medical personnel from immediately going into the school to render aid.

If the proposed anti-records legislation goes into effect, Banker said, such reporting would be even more difficult, if not impossible.

“For us on the Parkland story, the audio and the pictures and the video really became critical all along the way, but I would say particularly in the multimedia timeline we did,” she said.

A multimedia timeline published by the Sun-Sentinel used text, recordings, blueprints and images, many stills from the security footage, to walk the reader through the shooting and its aftermath minute by harrowing minute.

Not only did the reporting earn the Sun-Sentinel the prestigious Scripps Howard Award, and gratitude from victims’ families, it received an overwhelmingly positive response from law enforcement agencies.

“I was kind of stunned by the number of police departments that said they want to use it [in trainings],” Banker said.

Had the Sun-Sentinel been less committed to pursuing the truth, the public and the victims’ families may never have learned what really happened. When their requests were denied, the paper, joined by other media organizations, filed suit and won access to surveillance and other records, including some key footage and recordings that would be exempt under the proposed legislation.

Although this bill allows for release upon a finding of “good cause,” such requires going to court—an expensive, burdensome and time-consuming process.

And in today’s media landscape, where fewer organizations have the resources to fight for records in court, this law would make it even harder to hold public officials accountable for negligence or even overt harm caused by the government during a mass killing.

Some may find it remarkable that one of the co-sponsors of this legislation is also sponsoring bills that would set up compensation funds for Parkland survivors and their families with $160 million of state funds—provided they agree not to sue any government agencies over the shooting.

What might the state have offered had the Sun-Sentinel not gone to court to get records that helped its reporters demonstrate deficiencies in the response?

While Florida’s public records law has historically been among the best in the nation, in recent years there have been consistent efforts to narrow it. The Florida Times-Union editorial board reports that on average, there have been 130 bills proposed each year to “drive holes” in the Sunshine law. Further frustrating efforts to obtain access, public records custodians, long the bane of reporters nationwide, seemingly go out of their way to limit public access to information.

“The other problem we have with these laws when they get passed, is they really get broadly interpreted by the agencies,” said Banker.

Banker referenced Marcy’s Law, which Florida voters joined several other states by ratifying last year, which gives victims the right to request their names redacted from police reports. While ostensibly for the noble purpose of protecting victims, this law also keeps information about crime out of the public eye, giving people no choice but to rely on official versions of crime. Banker said they’ve already seen police automatically redacting names, seemingly regardless of whether a victim has made such as a request.

“It’s not that we want to hound victims … for us the biggest concern is government accountability,” Banker said.

This move away from public access and towards more government secrecy is a national trend, Columbia Journalism Review press freedom correspondent Jonathan Peters told the Daily Dot. A few years ago, while writing a retrospective of pieces he’d written in the prior year, Peters was struck by how many stories involved government attempts to restrict access to information.

“Looking at all of them as a whole, it was amazing and alarming the resources that various state and local governments were investing to keep public information private,” he said.

Peters noted that this law could assist government in efforts to cover up the truth, particularly problematic if records reveal bad behavior by its agents, such as in Parkland, where media had to sue to access records that later led to such widespread criticisms of police response that Republican Gov. Ron DeSantis suspended Sheriff Scott Israel for “neglect of duty” and “incompetence.” (Israel has denied wrongdoing and called the suspension politically motivated.)

Accountability is particularly important in the realm of law enforcement, who are privileged to deprive individuals of rights up to and including their lives, and whom are often the first and best positioned to provide information and records, such as body cam footage, about what happens during murders and mass killings that naturally elicit the greatest public interest.

Yet during committee debate about this law, at least one lawmaker opined that the government should prohibit the release of photos and recordings that depict all killings, as if only the government, not the public, can be trusted to properly analyze, summarize and react to such information.

Peters also questioned the bill’s most bizarre justification: that terrorist organizations will use such images and recordings in recruitment efforts, saying he was unaware of any research that supports this conclusion. “Separately I wonder about the unstated reasons,” he said. “…Instead of protecting victims’ families, are we trying to protect the gun lobby?”

As the Daily Dot previously reported, the bill’s two main sponsors have received multiple A+ ratings from the National Rifle Association. The NRA denies it is involved.

Though both Banker and Peters were sympathetic to one of the more logical stated intents of this bill—saving victims and their families from the trauma of seeing themselves or their loved one dead or greatly injured—they were also skeptical that there is even a need for the law.

Media only very rarely and in the most exceptional circumstances publish images and recordings of people who are deceased or greatly injured, particularly children. A decision to do so typically involves extensive ethical debate about whether publication would cause more harm than it serves the public good. “It’s just not something that you do,” Banker said. “It’s insensitive and there’s no public purpose.”

But this doesn’t mean that having access to such records isn’t useful, and sometimes vital.

Details such as the locations of entrance wounds, what police were saying over the radio, how and where a body fell, etc. can be extremely illuminating to a reporter trying to ferret out what really happened. Merely possessing a record doesn’t mean that it will ever be published, however, and in all but the most exceptional circumstances, it will not be.

So what is the purpose? Is this bill a solution without a problem? Or is the public knowing what really happened during a mass shooting is considered a problem?

“These are important public issues. It’s a terrible epidemic in this country and we need to be carefully looking at these situations,” Banker said.

But lawmakers in Florida seem to disagree.

Claire Goforth

Claire Goforth

Claire Goforth is a Jacksonville, Florida-based journalist covering politics, culture, justice, and unicorns. Her work has appeared in publications ranging from regional alt-weeklies to Al Jazeera.