It seems like every three months an Arizona legislator attempts to limit the public’s access to important records. Just last month Rep. John Kavanagh proposed criminalizing the videotaping of police officers. This time it’s Rep. Eddie Farnsworth of Gilbert, who has proposed limiting access to records in catastrophic ways. From the Arizona Republic article:
House Bill 2383 would prevent the public from accessing crime photos of any victim or any minor — whether a victim, witness or convicted criminal — unless a court decides the public interest outweighs the witness’ or victim’s right to privacy. It would prevent the public from accessing any personal identifying information of a witness of any age unless the witness agrees to it in writing or a court orders it disclosed.
The need to protect victim privacy is certainly understandable, but this proposed law creates a significant new barrier to access by requiring the court to decide whether the public interest outweighs the victim’s privacy.
As it stands now, all records are presumed to be public. Under the proposed law, the onus to prove whether the records are public would be shifted to the individual seeking access to the records. The journalist, the lawyer, the investigator, the concerned citizen, etc. would be forced to prove they deserve access to the records in court, thereby incurring significant costs in both time and money.
Even if you’re entirely sure that a victim’s privacy outweighs the public’s interest in records and that shifting the burden is fair, check out the next part of the proposed law. Again from the Arizona Republic article:
HB 2383 would exempt public bodies from paying attorney fees if they lose a public-records lawsuit as long as they based their decision on “a judgment or order of any court, a statute, a public opinion of a state appellate court, or a written opinion or letter from the attorney general.”
This should frighten any person who values transparency from their government. Not only is the legislature attempting to limit access to public records by requiring the requesting party to prove their need for the records in court, this new law would require that the person seeking the records bear their own costs – even when they win!
The public has an incredibly important interest in public records. They are the lifeblood of journalism and criminal defense. It’s not hard to imagine how the new law would have a chilling effect on accessing records. Imagine a scenario in which the government challenges every public records request simply because they know that proving the public’s interest in the records is a costly and time-consuming process. All access to records could be effectively curtailed by the inability or unwillingness of individuals to pay for a costly court proceeding.
If you need any more convincing that this law would limit an accused individual’s ability to mount a vigorous defense, take a look at who supports the bill:
Farnsworth said the Maricopa County Attorney’s Office asked him to run the bill. Rebecca Baker, the lobbyist for the Maricopa County Attorney’s Office, testified in support of the bill. Also supporting the legislation: the Arizona Prosecuting Attorneys’ Advisory Council and Pima County Attorney’s Office.