In a recent New York Times guest opinion, Ashley Judd — actress, activist, and daughter of Naomi Judd — urged Tennessee officials to reconsider and reform laws that, in her view, re-victimize family members who have lost a loved one by exposing their most private moments to the public through records disclosure.
In April, Naomi Judd died as a result of a self-inflicted gunshot wound. From the details that have been disclosed, we know that Ashley Judd found her dying mother, that 911 calls were placed, and that Ashley remained with her mother for 30 minutes until help arrived.
From the guest opinion, we learn that Ashley “felt cornered and powerless as law enforcement officers began questioning [her] while the last of [her] mother’s life was fading.”
In August, Naomi Judd’s family petitioned the Williamson County Tennessee Chancery Court to maintain the confidentiality of records from the ensuing investigation, including “video and audio interviews from immediately after Judd's death.” The petition states that disclosure “would cause ‘significant trauma and irreparable harm.’”
In her guest opinion, Ashley Judd asserts that there is “no compelling public interest in the case of [her] mother to justify releasing the videos, images and family interviews that were done in the course of that investigation.”
Clearly, there is a heightened level of public interest in the tragic suicide of Naomi Judd, a woman who overcame adversity to attain great success and fame.
But the countervailing privacy interest is no stronger because the victim achieved celebrity status. The privacy of every family member who has lost a loved one under unexpected, tragic, and often violent circumstances must be recognized and afforded protection.
Consider, for example, accident scene photos and autopsy photos of an an eighteen-month-old child who was accidentally backed over at his residence by a vehicle driven by his father. The local sheriff in the case release all other investigative records but withheld these photos at the family’s request, and the Kentucky Attorney General affirmed the denial.
Or consider crime scene photos taken at a residence that depicted the deceased victim and a 911 call placed by the victim’s wife immediately after she was abducted by her husband’s assailant, subjected to additional crimes, and forced to witness as the assailant committed suicide in her presence — all while the couple’s children remained in the residence. The local sheriff disclosed the investigative file, with these exceptions, and the Attorney General affirmed.
In these cases, the Attorney General concluded that “the already-disclosed portions of the record [verified] that the [agency] faithfully performed its purpose“ by investigating the incidents “promptly, responsibly, and thoroughly” and that “further disclosure of information contained in the public record would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy.”
However, I take issue with Ashley Judd’s statement that no compelling public interest would be served by disclosure of investigative records relating to her mother’s death.
She identifies at least two possible reasons why release of those records — or redacted portions of the records — might advance the public’s interest in knowing whether public servants properly discharged their duties. Limited disclosure might, in fact, lead to improvements in agency policies or practices.
As Kentucky’s courts observed in the Cabinet for Health and Family Service’s child fatality records cases, “There can be no effective prevention when there is no public examination of the underlying facts.”
On its face, a 30 minute delay in dispatching emergency medical services raises concerns about the effectiveness and efficiency of 911 dispatch. Intrusive questioning by law enforcement officers suggests another problem with public agency response.
Under the privacy analysis adopted by Kentucky’s court’s in 1992, the only remaining question would be whether the Judd family privacy interest in the records outweighs the public’s “right to be informed as to what their government is doing” — whether these agencies were properly executing their statutory functions.
If review of the records confirmed that disclosure “would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny,” the public interest would yield to a strongly substantiated privacy interest, and the records would be deemed exempt from public inspection.
Thus, in a 2008 open records decision, the Attorney General affirmed Jefferson County Metro Government-MetroSafe’s denial of access to those portions of a 911 recordings in which a two-year-old child’s fatal injuries —accidentally sustained at a T-ball game — as well as his deteriorating medical condition were discussed but required disclosure of those portions reflecting the dispatch center’s inability to locate the child and dispatch aid.
Kentucky law, and it’s existing privacy exception, strike a fair and, yes, compassionate balance between the public’s right to ensure that Kentucky agencies are properly discharging their statutory functions and the privacy rights of surviving family members under these and other tragic facts. In cases of a strongly substantiated public interest, those privacy interest must occasionally yield.
The Williamson County Chancery Court will decide the Judd family’s case under Tennessee law. Whether such a public interest is a factor in Tennessee, and what the outcome will be, remains to be seen.