Editor's note: The following opinion was adapted from a letter sent to Gov. Sean Parnell's office. Read the full text here.
Gov. Sean Parnell should veto SB 108, which would impose unprecedented restrictions on Alaskans' access to public records. We hope the fact he has yet to act on this bill indicates he is aware it is a flawed piece of legislation and that he shares the interest of the press, Office of Victims' Rights and others in finding a better way to deal with problems such as mistaken identity and false accusations. This bill takes a heavy-handed approach to a problem that, to the extent it exists, calls for a more reasonable and nuanced solution.
The bill appears to have federal and state constitutional problems. The U.S. Supreme Court has held that the press and public have a First Amendment right of access to criminal proceedings, and the Alaska Supreme Court and Legislature have characterized access to public records as a "fundamental right."
Bill sponsors repeatedly represented that SB 108 "would not render information already in the public domain confidential." But this is clearly false. This bill would make millions of pages of otherwise public court records confidential -- records that are or will have been in the public domain, free for any citizen to examine but for SB 108. Records of the branch of government responsible for administering justice -- including court records of expensive and notorious murder trials and other major criminal cases in Alaska history -- will vanish from the public record, and future such cases will be consigned to perpetual secrecy.
SB 108 is supported by a number of veteran criminal defense attorneys. But they know perhaps better than most the difference between "not guilty" and "innocent." They know judges make important decisions -- like revoking probation or enhancing sentences -- based on evidence that was not sufficient to convict someone of a crime. Our Alaska Supreme Court has noted the distinction between "factual innocence," on the one hand, and innocence as that word is used in the well-known, evocative phrase "presumption of innocence." That phrase describes the fundamentally important concept that our criminal justice system doesn't imprison citizens without affording them a trial, with due process -- it doesn't mean that those accused but not convicted of crimes may not be morally culpable or that they did not, in fact, do what they were accused of.
Defendants may be acquitted (or charges against them may be dismissed) for many reasons even if they engaged in criminal behavior -- and certainly under circumstances that don't indicate their "innocence." Defendants' confessions, or key evidence like murder weapons, drugs or burglary tools, may be found inadmissible due to police or prosecutorial abuse or mistakes. Erroneous interpretations of law by trial judges can result in acquittals. Witnesses to crimes die, disappear or are afraid to testify against a defendant.
One defense attorney invoked the example of former U.S. Sen. Ted Stevens -- knowing you can't go wrong using this Alaska icon to support your side. It is astounding that anyone would argue for erasing or hiding this significant piece of Alaska, and U.S., history. If this was an isolated vendetta against one powerful senator, why should we want to make this case confidential and conceal the evidence of wrongs committed against him? And if this was not an isolated problem but instead provides a window into government abuses that disproportionately land on less influential and affluent criminal defendants, wouldn't that be all the more reason not to make the files of his case secret?
Supporters of SB 108 displayed a pervasive distrust of our judges, prosecutors and police. But logically, evidence of how law enforcement and judicial officers commit wrongs that harm people is most likely to be found in cases thrown out by juries or dismissed by the prosecutors themselves -- the very cases SB 108 now will require the court system to cover up. Citizens have a right to know about wrongful and abusive behavior, or incompetence, of their public servants. Conversely, it is only fair to these same public servants that the press and public should have access to the files that may show they are being unfairly accused.
One attorney testifying for this bill belittled a victim's rights advocate for saying she might consider publicly available information about someone charged with a sex crime, even if he had been acquitted or had charges against him dismissed, when making personal decisions about things like hiring a baby sitter. Yet the defense attorney acknowledged that she herself had obtained and relied on arrest records from the Alaska State Troopers in making decisions about hiring baby sitters. It is ironic that she would not trust others to consider the same kind of information she would use to help make important personal decisions.
One legislator movingly recounted that when he was a young child his father had been murdered. He said he would not want the name of someone mistakenly identified as the killer forever made part of the public record. Who would? But SB 108 would cause court records to be concealed in cases thrown out due to improperly obtained confessions, warrantless searches and a variety of other causes that do not indicate "innocence" of the accused and in many cases would show the opposite. It's likely this same legislator would not want to be deprived of the opportunity to know, as an adult, all the facts of his father's murder.
Proponents argue you might possibly still get access to documents the bill makes confidential by filing a legal action. Even if you knew what to ask for, and could afford a lawyer to pursue such a case, Alaska is the only state in the union where citizens who file an action to gain access to a public record or public meeting have to pay the government if they lose.
Legislation that effects such sweeping changes to the rights of Alaskans should not be based on anecdotes and advocacy that distort or ignore important aspects of the issue. This bill tinkers with basic, long-standing notions of government transparency and accountability and the historical record of our judicial branch. It should be vetoed.
John McKay has practiced media law in Alaska for decades and is the attorney for Alaska Dispatch Publishing. In 2007, he became the first recipient of the Alaska Press Club's Howard Rock Tom Snapp First Amendment Award.
By JOHN McKAY