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Government and Administrative

Florida Supreme Court Provides Dispositive Guidance on Marsy’s Law: The Identities of Crime Victims Are Not Protected From Disclosure

Florida Supreme Court Provides Dispositive Guidance on Marsy’s Law: The Identities of Crime Victims Are Not Protected From Disclosure

Marsy’s Law was approved by Florida voters in the 2018 general election and amended Article I, Section 16 of the Florida Constitution to provide substantive rights to crime victims.  The Amendment provides crime victims the constitutional right to privacy regarding records that could be used to locate or harass them or their family or which could disclose confidential or privileged information about them.  At the time it passed, critics noted the Amendment was wrought with ambiguities and uncertainties which created challenges for Florida’s law enforcement agencies, the media, and citizens who sought to interpret its provisions.  One ambiguity, some argued, included whether an on-duty law enforcement officer might invoke the privacy protections if he or she were the victim of a crime.  An informal survey of agencies revealed a mix of those that afforded victim officer privacy protections and those that did not.  After five years of debate, the Florida Supreme Court has recently resolved this ambiguity with finality:  Marsy’s Law does not shield against the disclosure of any crime victim, whether on-duty law enforcement or not.[1]  The Court noted two important clarifications: (1) this decision does not preclude the Florida legislature from later expanding the scope of victim confidentiality beyond the current enumerated crimes for which there is victim privacy, and (2) this decision does not impact any other victim privacy protection currently memorialized in Florida Statute and is limited only to the interpretation of Marsy’s Law.

This legal challenge to Marsy’s law began in May 2020, when, in two separate incidents, two different Tallahassee Police Department officers shot and killed suspects who were threatening them with death or great bodily harm.  In both cases, the shootings were deemed lawful.  Reporters sought the disclosure of the officers’ names from the City and the officers asserted they qualified as “victims” under Marsy’s law and sought to invoke its crime-victim privacy protections.  The City indicated its intent to release the officers’ names and the Florida Police Benevolent Association sued the City seeking to prevent the disclosure.  The trial court denied the FPBA’s efforts to obtain an injunction, and the case was appealed to the First District Court of Appeal.  The disclosure was stayed pending resolution of the appeal.  The First DCA reversed the lower court and ordered the names not be disclosed.  The City and the News Media Coalition appealed to the Florida Supreme Court which has provided finality on the issue.  Succinctly stated, the identities of crime victims, regardless of their status as on duty law enforcement officers at the time of victimization, are not protected by Marsy’s Law’s privacy protections.  This decision significantly impacts how law enforcement and other agencies treat the names of crime victims when responding to public records requests.

Critics of the decision will likely argue that the Court has eviscerated Marsy’s Law’s stated intent to protect crime victims from being located, being harassed, or having confidential or privileged information about them being disseminated.  A fair reading of the Court’s opinion, however, suggests no such underlying purpose.  Instead, the Court relied on, among other things, sound interpretation of other provisions of Florida’s Constitution and existing statutory exemptions from disclosure applicable to victims of enumerated crimes.  One may ask, how can the disclosure of a victim’s identity not constitute information that could be used to locate or harass a victim?  The Court addressed this issue head on.

In resolving the issue against the confidentiality of a victim’s identity, the Court interpreted Marsy’s Law, as it must, by first exploring the actual language used and giving the words their usual, ordinary, and commonly accepted meaning.  The Court is also required to read and interpret Marsy’s Law’s text in conjunction with the rest of the Constitution.  Using these interpretive principles, the Court concluded that Marsy’s Law does not guarantee to a victim the categorical right to withhold his or her name from disclosure.  The Court reasoned that the language of the Amendment does not encompass a victim’s identity, although it does provide for the confidentiality of information that could lead to the location of the victim.

While common sense might suggest that a crime victim’s name could certainly be used to locate or harass a victim or could lead to the disclosure of confidential or privileged information, the analysis cannot be conducted in a vacuum.  The Court analyzed other statutory confidentiality provisions that distinguished between identity, and location, and where one’s identity was confidential, the statute providing for the exemption said so expressly.  Finding these protections distinct, when applied to the Amendment, it simply did not provide for the confidentiality of a victim’s identity.  The Court opined, “[o]ne’s name, standing alone, is not that kind of information or record [that could be used to locate or harass victims]; it communicates nothing about where the individual can be found and bothered.”  Support for this premise may be found in other provisions of the Florida Constitution which specifically provide confidentiality of a person’s identity.  The Court reasoned that there was a meaningful distinction between protecting crime victims from being located, versus being identified, because the former creates a threat of physical danger that the mere disclosure of one’s name does not.

Although the Supreme Court’s decision provides a binding final interpretation of Marsy’s Law’s victim confidentiality, the next logical step for the FPBA and any victim advocacy group is to seek recourse in the Florida Legislature.  Proponents of crime victim confidentiality are free to lobby for legislation expanding the existing statutory exemptions to supplement Marsy’s Law and to provide confidentiality to crime victim’s identities. Opponents will also be free to pursue the continued disclosure of crime victim identities that are not already specifically protected by statute.  This anticipated legislative battle is almost certain to include the fundamental question that initiated this litigation: should an on-duty law enforcement officer who is the victim of a crime be permitted to invoke crime-victim privacy protections?  Time will tell if legislation is sought to increase victim confidentiality and the outcome of this critical question.  The Court sent a strong and clear message, however, that victim confidentiality is whatever the Legislature says it is.

Unless or until the Legislature expands Florida’s public records laws, the identities of all crime victims, including on-duty law enforcement officers, are not protected from disclosure by Marsy’s Law.  When considering whether to release the identities of on-duty police officers who have been the victim of crime, or indeed, of any crime victim, it is as if Marsy’s Law never existed.  Decisions regarding the release, or withholding, of crime victim’s names should be based solely on existing statutory exemptions codified in Florida Statutes and Marsy’s Law should play no part in the analysis.  Nothing in this decision requires the disclosure of information that could lead to the location of the victim or his or her family, and therefore, Marsy’s Law continues to provide some protection to crime victims and their families.

Law enforcement agencies and public records departments should closely review this decision and immediately implement public records response measures consistent with its holding.  The withholding of the names of officers who were victimized while on duty may not be justified by citing Marsy’s Law, and the continued withholding of their identities may expose agencies to liability under Florida’s broad public records laws.

[1] City of Tallahassee, Florida v. Florida Police Benevolent Association, Inc., et al, Case No. SC2021-0651 (November 30, 2023).