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Bill on Sealing Victim-Witness Data Goes to Gov.

Open-record advocates say the privacy measure allows prosecutors to keep too much secret.

August 26, 2004|Christine Hanley | Times Staff Writer

Despite opposition from open-government advocates, a bill that would allow prosecutors to keep an unlimited amount of personal information about crime victims and witnesses from the public passed the state Senate unanimously Wednesday and is headed to the governor's desk.

Under the latest version of the bill -- the brainchild of Orange County Dist. Atty. Tony Rackauckas -- prosecutors and courts in all California counties would be required to establish their own policies to black out certain identifying information about witnesses and victims from reaching public court files.

Such information can include birth dates, addresses, telephone numbers, employment, Social Security numbers, mother's maiden names, employee ID numbers, and bank account and credit card numbers.

Proponents say the intent of Senate Bill 58, which had also cleared the Assembly without opposition, is to protect witnesses and victims from harm and identity theft, and strikes a fair balance between the public's right to know and an individual's right to privacy.

Opponents argue, and some legal scholars agree, that the bill leaves too much room for prosecutors and the courts to decide what is confidential and how it should be kept that way. Their biggest fear is that it could lead to a systematic sealing of all police reports, making it difficult for the news media and the public to monitor the justice system.

"It's like a secret system.... And from our perspective, what it permits is routine and automatic sealing of these documents, because that's the easiest way to deal with it," said Jim Ewert, legal counsel for the California Newspaper Publishers Assn.

Public access to police reports in California varies from county to county, and in some cases, from courthouse to courthouse. News organizations and 1st Amendment watchdogs have argued for years that the reports should be available to anyone after a judge sees them. But prosecutors and police contend that doing so might jeopardize victims and witnesses.

A dispute that gave rise to the bill erupted nearly two years ago in Orange County when presiding Superior Court Judge Frederick P. Horn, backed by an opinion he requested from California's Judicial Council, ruled that any police report submitted to the court would be made available to the public. Before that, police reports were placed in sealed envelopes, allowing only judges, defense lawyers and prosecutors to view them.

In response, Rackauckas vowed to stop filing police reports with the court and expressed hope that the state Legislature would enact a law keeping police reports private. He took his proposal to state Sen. Ross Johnson, a fellow Orange County Republican who agreed to introduce such a bill.

The legislation was watered down from earlier versions that called for sealing police reports and documents submitted to the court in support of a criminal complaint, search warrant or arrest warrant, and would have required reporters and the public to file a motion to unseal such records. The bill now specifies 13 types of data, including address and birth date, that would be sanitized from public records, on grounds that there is an urgent need to "protect the safety and privacy of victims and witnesses of crimes, to encourage witnesses to come forward and report crimes, and to combat the efforts of identity thieves."

Suzie Swatt, chief of staff for Johnson, said the bill was tailored to safeguard only such personal identifying information about victims and witnesses and was not intended to let the government do business in secret. She noted that even though information would be kept from the public, defense attorneys would have complete access.

"We want to keep court records public," she said. "We're trying not to interfere at all."

Chapman law professor John Eastman agreed that the fact that the government can't keep the information secret from defense attorneys seems "a more than adequate guarantee" that the process will be fair. "The fact that we happen to be a witness to a crime doesn't deprive us of that [privacy] right.... I think it may go a long way to protecting people's privacy."

But Ewert, of the publishers association, said the bill's language was still too broad. He argued that there are already laws on the books that allow police and prosecutors to seal sensitive information. He worries that courts and prosecutors, left to their own interpretations of what qualifies as personal identifying information, would be inclined to just seal entire reports without explanation, putting the burden on the public to take legal action to gain access. He said the bill also could lead to a patchwork of 58 different access policies -- one for each county.

UCLA professor Lynn LoPucki said prosecutors could use the legislation to conceal nearly anything. "Looks to me like they're planning to put everyone in the witness protection program, whether they need it or not," he said.

Jonathan Kotler, a USC journalism professor with expertise in media law, called it a "strange" bill that protects the privacy of a very narrow range of individuals at the expense of information to the public about what's going on in the system.

"While it isn't abusive per se to the right of access, the potential is certainly there," Kotler said. "It's going to depend on how loose or tight the local law enforcement agencies and courts decide how to play with this thing."

UC Berkeley law professor Charles Weisselberg said he hopes the bill does not encourage counties that have traditionally released police reports to start sealing them, leaving government watchdogs without information they need to recognize significant patterns.

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