Marsy’s Law for Florida, the organization that successfully advocated for inclusion of crime victims’ rights and protections in the Florida Constitution, today released a legal opinion regarding constitutional language that protects crime victims’ personally identifiable information. According to the opinion, any information that could be used to locate or harass a crime victim, including in most cases their names, cannot be disclosed without their consent. Violations of this right could draw public agencies into protracted and expensive legal proceedings.
The opinion, issued by respected constitutional law attorney Barry Richard, centers on the following language that now exists in the state constitution.
Article I, Section 16 (b)(5) gives a victim of crime, “The 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.”
There is very clear case for why information that could be used to locate or harass a victim,including their name, cannot be automatically released unless an agency knows that this information could not be used to locate a victim. An excerpt from Richard’s opinion states:
“The [above] provision requires the custodian of public records to maintain confidentiality of any information that ‘could be used’ to locate a victim or victim’s family. Based upon common usage, the word ‘could’ in the context of the provision refers to possibility. (See Oxford Dictionary definition: ‘used to indicate possibility.’ en.oxforddictionaries.com/definition/could). In today’s world, it is generally easy to locate a person using the person’s name given the abundance of online search resources. In any case, unless circumstances are such that disclosure of a victim’s name could not assist in locating the victim or victim’s family, logic compels the opposite conclusion; that disclosure could be used to locate them, thus requiring that the name be kept confidential.
For the foregoing reasons, I reach the following conclusions:
- Article I, Section 16(b)(5) requires no legislative implementation or ratification and is now in effect.
- The provision grants the right to waive confidentiality exclusively to the victim or victim’s family.
- Custodians of records made confidential by the victims’ rights provision have a duty to maintain procedures designed to avoid disclosure of such information, including the victim’s name in most instances, to unauthorized persons.
- Before information relating to a victim is made public, the victim or victim’s family should be provided a reasonable opportunity to object to disclosure or seek judicial assistance.”
“The passage of Amendment 6, or Marsy’s Law for Florida, last November was just the first part of a process,” said Jennifer Fennell, a representative of Marsy’s Law for Florida. “Our organization is committed to seeing the successful implementation of these new rights and changing the culture in the criminal justice system where needed. 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. 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.”
Richard’s legal opinion was issued at the request of Sen. Lauren Book (D-Plantation) who recently filed a Marsy’s Law for Florida implementing bill (SB 1426) to ensure the consistent and uniform application of the rights afforded crime victims under the state constitution. A copy of Richard’s letter to Sen. Book and his full opinion can be found here.
