Limiting Sunshine

Florida quite famously has one of the nation’s most expansive public records access laws. And it’s not uncommon for such a law to butt up against some people’s views of common sense and common decency.

Take for example, the recent death of a trainer at the hands of a Tilikum, a SeaWorld whale. The park has turned over video of the incident to the Orange County Sheriff’s office, which is investigating the death. And now that the video is in government possession, once the inquiry has concluded it will likely be ripe for release to anyone savvy enough to file a records request.

Not surprisingly, the victim’s family isn’t interested in having the potentially graphic—and certainly tragic—video disseminated.

This isn’t simply matter of prurient public desire to see the death. There’s interest in assuring that the video squares with the park’s explanation and description of the killing.

Mike Thomas, a columnist for the Orlando Sentinel has an excellent column chewing over the issue. He lists several instances where Florida media have agreed or decided not to release gruesome images that they gained access to in order to tell stories of public interest and watchdog the claims and work of government officials. His conclusion:

I think we in the media have to recognize such realities and even consider supporting a bill introduced in the Florida House before the SeaWorld incident. It would not cut off access to public records such as this video—but it would enshrine in law this compromise we always seem to arrive at: Look, but don’t publish.

You can see the material. You just can’t take it out of the building or copy it. If the media feel there is a compelling need to do so, it can petition a judge for release. Everybody knows the rules up front, and it stops these gut-wrenching recurring battles.

Says Rep. Kelli Stargel, the House sponsor: “I think it is a happy medium to protect families from having their tragedies exploited while allow full scrutiny by the media and others of our public agencies.”

In the long run, this may well preserve our access to such information.

Understood. Still, it’s a complicated knot to unravel. Most public records laws don’t discriminate on what a person plans to do with the records upon their release—public is public. And that’s usually a good thing; you don’t want government empowered to limit who can exercise their freedom of information rights based on how they want to use the information.

Technological and cultural barriers have usually gone a long way towards preventing the release of such images where they’ve been available via court records or access laws. But the internet has eroded those barriers, both for good and for bad. Tilikum and others are testing what barriers, if any, will be erected in their stead.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.