Jacob Ogles
Advocates for Marsy’s Law released a new legal opinion supporting the right of crime victims to have their identities withheld from release.
Tallahassee attorney Barry Richard of Greenberg Traurig wrote an opinion letter that identities, including names, fall under the “right to prevent disclosure of information or records that can be used to locate and harass the victim.”
That line appears in a constitutional amendment approved by voters in November. Marsy’s Law creates a victims’ bill of rights in Florida.
But there remains a dispute about exactly what new protections exist after the amendment’s approval.
After a mass shooting in Sebring, some victims asked for their names to be withheld from public release and Police Chief Karl Hoglund honored the request. That sparked the first test of Marsy’s Law in Florida.
Richard’s opinion suggests victims, and in the Sebring case the family of murder victims, have the right now to keep their name from becoming public record.
“The provision requires the custodian of public records to maintain confidentiality of any information that ‘could be used’ in the context to locate a victim or victim’s family,” writes Richard, best known for representing then-Texas Gov. George W. Bush during the 2000 presidential election challenge that played out in Tallahassee.
Sen. Lauren Book, a Plantation Democrat, personally requested the legal opinion from Richard (Senate spokeswoman Katie Betta clarified he was “not retained by the Senate”). Book was among the most vocal supporters for Marsy’s Law in Florida.
The opinion in itself doesn’t make any final determination about the law’s application. But Richard’s reading of the law supports Hoglund’s actions after the Sebring shooting, and suggests other law enforcement should apply the law the same way.
Advocates for the amendment held up the opinion as bolstering their interpretation.
“Our organization is committed to seeing the successful implementation of these new rights and changing the culture in the criminal justice system where needed,” said Jennifer Fennell, a spokeswoman for Marsy’s Law for Florida.
“We are prepared to do this through education, advocating legislation, and when needed, supporting litigation. No matter what role you play in the process – law enforcement, state attorneys, prosecutors, judges – everyone is expected to safeguard these rights.”
It remains likely there will be challenges to how the law gets applied.
Michael Barfield, board president for the ACLU of Florida, said Floridians’ right to privacy doesn’t trump public access to information, a right also enshrined by voters in Florida’s constitution.
He also has called the measure a hollow promise to families anyway, as information eventually will be made public through a discovery process as cases get tried in court.
Larry Eger, the Public Defender for the 12th Judicial Circuit, said dispute over interpretations show that the amendment was always too vague.
“The law has created more questions than answers, which I can only foresee being resolved through litigation when each subject comes up,” he said.
The new opinion from Richard acknowledges conflicts with privacy rights, but said the new rights established by Marsy’s Law overrule those. He notes Florida’s open records laws already provide exemptions shielding other parts of criminal investigations from release.
“Because the open records provision recognizes an exception for exemptions specifically provided in other sections of the Constitution, which includes the victims’ privacy provision, there is no conflict,” he wrote.
Fennell said that interpretation will be defended in court as necessary: “Victims do not ask to be thrust into the criminal justice process and they should be empowered to decide if they want to be in the public limelight or not.
“Marsy’s Law for Florida is happy to work with any agency or stakeholder in the criminal justice process seeking advice or counsel on how to apply these new rights in their jurisdiction.”
