Amicus Curiae Brief — Matthew Fox, et al., Petitioners v. Charles A. Summers

No. 20-1381

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------MATTHEW FOX, ET AL.,

Petitioners,

v.

CHARLES A. SUMMERS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Ohio Supreme Court

---------------------------------♦--------------------------------MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF AMICI CURIAE OF LEGAL

MOMENTUM, THE NATIONAL CRIME VICTIM LAW

INSTITUTE, AND EIGHTEEN OTHER WOMEN’S

AND CRIME VICTIM’S ORGANIZATIONS

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------MARY-CHRISTINE SUNGAILA*

Counsel of Record

JOSHUA OSTRER

LAUREN JACOBS

BUCHALTER APC

18400 Von Karman Avenue

Suite 800

Irvine, CA 92612

T: (949) 760-1121

msungaila@buchalter.com

JENNIFER M. BECKER

LYNN HECHT SCHAFRAN

LEGAL MOMENTUM

32 Broadway, Suite 1801

New York, NY 10004

T: (212) 925-6635

jbecker@legalmomentum.org

lschafran@legalmomentum.org

Attorneys for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE IN SUPPORT OF PETITIONERS

Legal Momentum and the National Crime Victim

Law Institute (NCVLI) received consent to file this

brief on behalf of themselves and other amici organizations1 from Petitioners Matthew Fox, Jeff Grey, and

J.K.. However, Respondent Charles A. Summers did

not consent to the filing of this brief. Accordingly, Legal

Momentum, NCVLI, and their companion amici submit this motion for leave to file an amici curiae brief

pursuant to Rule 37.2(b).

Legal Momentum, NCVLI, and companion amici

are advocacy groups dedicated to, among other things,

the rights of women, crime victims, and survivors of

gender-based violence. As associations that represent

women, victims, and survivors across the country,

amici have a substantial interest in ensuring that a

federal constitutional right to informational privacy is

preserved and its scope clarified, particularly in the

context of public records act requests in response to

1

Advocating Opportunity; Arizona Voice for Crime Victims,

Inc.; Asian Pacific Institute on Gender-Based Violence; Chicago

Alliance Against Sexual Exploitation; Crime Victim Services; Futures Without Violence; National Alliance to End Sexual Violence; National Association of Women Lawyers; National Center

for Victims of Crime; National Coalition Against Domestic Violence; National Network to End Domestic Violence; National Organization for Victim Assistance (NOVA); Network for Victim

Recovery of DC; Ohio Alliance to End Sexual Violence; Ohio

Domestic Violence Network; Ohio Victim Witness Association;

Rocky Mountain Victim Law Center; and Women Lawyers on

Guard, Inc.

2

which the government may disclose the details of sexual assaults of minors.

Amici seek leave to file a brief in this case because

the pending petition raises significant and timely issues – particularly in the Internet age – about the

Fourteenth Amendment Due Process right to informational privacy and the protection that it provides

against government disclosure of information concerning the details of a minor’s sexual assault.

The brief supplements, rather than repeats, the

arguments in the Petition. It further details the unexpected divergence of the Ohio Supreme Court’s approach in this case, in which the state court ignored

J.K.’s constitutional privacy rights in analyzing the

propriety of a public records act disclosure, from that

of the same court and the Sixth Circuit in other cases

concerning privacy and the release of other public records. It also explains the carefully calibrated legislative and judicial efforts to protect and anonymize

sexual assault victims and encourage them to come

forward, and how governmental disclosure through

public records act request responses would undermine these efforts and discourage reporting of such

crimes, particularly where further disclosure of these

records can be made on the Internet, which can allow

for much more retaliation against sexual assault survivors.

3

Accordingly, amici seek leave to file the accompanying amici curiae brief.

Dated: May 3, 2021

Respectfully submitted,

MARY-CHRISTINE SUNGAILA*

Counsel of Record

JOSHUA OSTRER

LAUREN JACOBS

BUCHALTER APC

18400 Von Karman Avenue

Suite 800

Irvine, CA 92612

T: (949) 760-1121

msungaila@buchalter.com

JENNIFER M. BECKER

LYNN HECHT SCHAFRAN

LEGAL MOMENTUM

32 Broadway, Suite 1801

New York, NY 10004

T: (212) 925-6635

jbecker@legalmomentum.org

lschafran@legalmomentum.org

Attorneys for Amici Curiae

i

CORPORATE DISCLOSURE STATEMENT

Under rule 29.6 of the Rules of this court, amici

curiae state the following:

Legal Momentum is a not-for-profit corporation incorporated under the laws of the District of Columbia.

It has no shareholders, parents, subsidiaries, or affiliates.

NCVLI is a not-for-profit organization incorporated under the laws of the state of Oregon. It has no

shareholders, parents, subsidiaries, or affiliates.

ii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

5

I.

II.

In assessing whether graphic material detailing a minor’s sexual assault should be

disclosed as part of a public records act request, the Ohio Supreme Court refused to

balance a constitutional right to informational privacy recognized by both the

Sixth Circuit and its own precedent. This

alone warrants review, even if there were

no circuit split about the scope and existence of a federal constitutional right to informational privacy ...................................

5

Review is necessary because informational privacy carries heightened importance in the Internet age. Moreover, web

publication of government records detailing a minor’s sexual assault would undermine longstanding judicial and legislative

efforts to both encourage reporting of such

crimes and maintain the anonymity of

sexual assault survivors ............................ 11

CONCLUSION..................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

Allied Daily Newspapers v. Eikenberry,

848 P.2d 1258 (Wash. 1993) ....................................19

Anderson v. Blake,

469 F.3d 910 (10th Cir. 2006) ..................................11

Baldwin v. Alabama,

472 U.S. 372 (1985) ...................................................6

Bloch v. Ribar,

156 F.3d 673 (6th Cir. 1998) ............................ 8, 9, 10

Dep’t of Air Force v. Rose,

425 U.S. 352 (1976) ...................................................4

Dillard v. O’Kelley,

961 F.3d 1048 (8th Cir. 2020) ..................................11

E.B. v. Landry,

No. 19-862, 2020 WL 5775148

(M.D. La. Sept. 28, 2020) .........................................21

Florida v. White,

526 U.S. 559 (1999) ...................................................6

Florida Star v. B.J.F.,

491 U.S. 524 (1989) ........................................... 17, 18

Gambale v. Deutsche Bank AG,

377 F.3d 133 (2d Cir. 2004) .....................................12

Hagen v. Utah,

510 U.S. 399 (1994) ...................................................6

In re A Minor,

595 N.E.2d 1052 (Ill. 1992) .....................................18

iv

TABLE OF AUTHORITIES – Continued

Page

In re Expungement of the Crim. Records of E.C.,

184 A.3d 120 (N.J. Super. Ct. App. Div. 2018).........22

In re Expungement Petition of R.M.M.,

No. A-5413-13T3, 2015 WL 2259228

(N.J. Super. Ct. App. Div. May 15, 2015) .................22

Johnson v. California,

545 U.S. 162 (2005) ...................................................6

Kallstrom v. Columbus,

136 F.3d 1055 (6th Cir. 1998) ....................................8

Lambert v. Hartman,

517 F.3d 433 (6th Cir. 2008) ......................................8

Lee v. City of Columbus, Ohio,

636 F.3d 245 (6th Cir. 2011) ......................................9

Lucky v. United States,

No. 15-MC-1979, 2016 WL 525474

(E.D.N.Y. Feb. 8, 2016) ............................................22

Malleus v. George,

641 F.3d 560 (3d Cir. 2011) ............................... 10, 11

Maryland v. Craig,

497 U.S. 836 (1990) .................................................20

Michigan v. Lucas,

500 U.S. 145 (1991) .................................................17

NASA v. Nelson,

562 U.S. 134 (2011) ........................................... 3, 8, 9

People v. Bryant,

94 P.3d 624 (Colo. 2004) .................................... 12, 18

v

TABLE OF AUTHORITIES – Continued

Page

People v. Fontana,

232 P.3d 1187 (2010) ...............................................18

Sealed Plaintiff #1 v. Farber,

212 Fed. Appx. 42 (2d Cir. 2007) .............................10

State v. Boehme,

No. 27255, 2017 WL 4712432

(Ohio Ct. App. Oct. 20, 2017) ..................................21

State v. Hall,

No. 25794, 2014 WL 2091895

(Ohio Ct. App. May 16, 2014) ..................................21

State v. Jeffries,

160 Ohio St. 3d 300, 2020-Ohio-1539,

156 N.E.3d 859 (Ohio 2020) ....................................20

State ex rel. Cincinnati Enquirer v.

City of Cincinnati,

157 Ohio St. 3d 290, 2019-Ohio-3876,

135 N.E.3d 772 (Ohio 2019) ......................................3

State ex rel. Cincinnati Enquirer v. Craig,

132 Ohio St. 3d 68, 2012-Ohio-1999,

969 N.E.2d 243 (Ohio 2012) .................................. 7, 8

State ex rel. Keller v. Cox,

707 N.E.2d 931 (Ohio 1999) .................................. 3, 7

State ex rel. McCleary v. Roberts,

725 N.E.2d 1144 (Ohio 2000) .............................. 8, 12

State ex rel. Summers v. Fox,

Slip Opinion No. 2020-Ohio-5585 (2020)............ 3, 10

State ex rel. Thomas v. Ohio State Univ.,

643 N.E.2d 126 (Ohio 1994) ......................................7

vi

TABLE OF AUTHORITIES – Continued

Page

Thorne v. El Segundo,

726 F.2d 459 (9th Cir. 1983) ....................................11

Turner v. Rogers,

564 U.S. 431 (2011) ...................................................6

United States v. Estate of Romani,

523 U.S. 517 (1998) ...................................................6

United States v. Miami Univ.,

294 F.3d 797 (6th Cir. 2002) ......................................8

United States Dep’t of State v. Ray,

502 U.S. 164 (1991) ............................................... 4, 7

United States DOJ v. Reporters Comm. for

Freedom of Press,

489 U.S. 749 (1989) ...................................................4

Wurzelbacher v. Jones-Kelley,

675 F.3d 580 (6th Cir. 2012) ......................................9

STATUTES AND REGULATIONS

Cal. Gov’t Code § 6250 (Deering 2021) ........................7

Fiscal Impact Statement for Proposed Legislation: Senate Bill No. 1339, 2020 Legis. Bill

Hist. Va. S.B. 1339 (Va. Feb. 5, 2021) ......................22

Ga. Code Ann. § 16-6-23 (2004) ..................................16

Mich. Comp. Laws Serv.

§ 28.243(8) (LexisNexis 2021).................................22

§ 764.26a(1) (LexisNexis 2021) ................................22

vii

TABLE OF AUTHORITIES – Continued

Page

Ohio Rev. Code Ann.

§ 149.43 (LexisNexis 2021) ................................... 3, 7

§ 2152.81 (LexisNexis2021) ....................................21

§ 2907.02(D) (LexisNexis 2021) ..............................20

§ 2907.05(E) (LexisNexis 2021) ..............................20

§ 2907.11 (LexisNexis 2021) ...................................20

§ 2930.07 (LexisNexis 2021) ...................................21

§ 2945.49 (LexisNexis 2021) ...................................21

Pennsylvania’s Clean Slate Law, 2018 Pa. Laws

56, codified at 18 Pa. Cons. Stat. §§ 9121-9125

(2021) .......................................................................22

S.C. Code Ann. §§ 16-3-652-656 (2002) ......................16

Supreme Court Rule 10 ................................................5

Tex. Code Crim. Proc. Ann. art. 57.02 (West

2002) ........................................................................16

OTHER

Jess Bidgood, After Arrests, Quandary for Police

on Posting Booking Photos, N.Y. Times (June

26, 2015), https://www.nytimes.com/2015/06/27/

us/after-arrests-quandary-for-police-on-postingbooking-photos.html................................................12

Kaitlin A. Chivers-Wilson, Sexual assault and

posttraumatic stress disorder: A review of the

biological, psychological and sociological factors and treatments, 9 McGill J. Med. 111

(2006) .......................................................................14

viii

TABLE OF AUTHORITIES – Continued

Page

Discussion of each exemption, Reporter’s Committee, https://www.rcfp.org/opengovernmentsections/2-discussion-of-each-exemption/ (last

accessed Apr. 13, 2021) ..............................................7

Jennifer J. Freyd, When sexual assault victims

speak out, their institutions often betray them,

The Conversation (Jan. 11, 2018, 6:41 AM),

https://theconversation.com/when-sexual-assaultvictims-speak-out-their-institutions-oftenbetray-them-87050 .................................................14

Lori Haskell & Melanie Randall, The Impact

of Trauma on Adult Sexual Assault Victims

(2019), https://www.justice.gc.ca/eng/rp-pr/jr/

trauma/trauma_eng.pdf ..........................................14

Iowa man sentenced to prison for threatening

Bryant accuser, Waterloo-Cedar Falls Courier,

https://wcfcourier.com/news/breaking_news/

iowa-man-sentenced-to-prison-for-threateningbryant-accuser/article_be7994cf-2222-5f5a-b2f5698ba79d4a89.html (last visited Apr. 21,

2021) .................................................................. 17, 18

Man charged with soliciting murder of Kobe

Bryant’s accuser, ESPN News Wire, http://

www.espn.com/espn/wire/_/id/1621370 (last

visited Apr. 21, 2021) ...............................................17

Office for Victims of Crime, OVC Archive: Victims of Sexual Assault, https://www.ncjrs.gov/

ovc_archives/reports/firstrep/vicsexaslt.html

(last accessed Apr. 16, 2021) ...................................13

ix

TABLE OF AUTHORITIES – Continued

Page

OLR Staff, Other States’ FOI Exemptions Protecting Personal Privacy, OLR Research Report (Oct. 1, 2013), https://www.cga.ct.gov/2013/

rpt/2013-R-0384.htm ............................................. 6, 7

Claudia Polsky, Open Records Shuttered Labs:

Ending Political Harassment of Public University Researchers, 66 UCLA L. Rev. 208

(2019) .........................................................................4

Charles Putnam and David Finkelhor, “Mitigating the Impact of Publicity on Child Crime

Victims and Witnesses,” Handbook on Children, Culture, and Violence, 113 (2006) ..................16

S. Shapiro et al., Supreme Court Practice (11th

ed. 2019) ....................................................................5

Survivor Protection: Reducing the Risk of Trauma

to Child Sex Trafficking Victims, Rights4Girls

(Jan. 2018) https://rights4girls.org/wp/wp-content/

uploads/r4g/2018/01/Survivor-Protection.pdf ..... 19, 20

Warren Binford et al., Beyond Paroline: Ensuring Meaningful Remedies for Child Pornography Victims at Home and Abroad, 35

Children’s Legal Rights J. 117 (2015) ....................15

What happened in the rape claim case against

NBA star Kobe Bryant that was dropped

in 2004?, Australian Broad. Corp., https://www.

abc.net.au/news/2020-01-30/what-happenedin-the-kobe-bryant-nba-star-rape-claim-case/

11912250 (last visited Apr. 21, 2021).............. 17, 18

1

INTEREST OF AMICI CURIAE1

Legal Momentum, the National Crime Victim Law

Institute (NCVLI), and companion amici2 are advocacy

groups dedicated to, among other things, the rights of

women, crime victims, and survivors of gender-based

violence. Legal Momentum is the nation’s longest serving civil rights organization dedicated to advancing

the rights of women and girls. For over 50 years, Legal

Momentum has worked to achieve gender equality

through impact litigation, policy advocacy, and education. NCVLI is a legal education and advocacy organization focused on promoting balance and fairness in

the justice system through legal advocacy, education,

and resource sharing. NCVLI is dedicated to ensuring

1

No counsel for a party authored this brief in whole or in

part. Neither a party, nor its counsel, nor any other entity other

than amicus curiae and counsel has made a monetary contribution intended to fund the preparation or submission of this brief.

The parties were notified ten days prior to the due date of this

brief of the intention to file. Petitioners have consented to the filing of this brief; Respondent has not. A motion for leave to file this

brief is being concurrently submitted with this brief.

2

Advocating Opportunity; Arizona Voice for Crime Victims,

Inc.; Asian Pacific Institute on Gender-Based Violence; Chicago

Alliance Against Sexual Exploitation; Crime Victim Services;

Futures Without Violence; National Alliance to End Sexual Violence; National Association of Women Lawyers; National Center

for Victims of Crime; National Coalition Against Domestic Violence; National Network to End Domestic Violence; National Organization for Victim Assistance (NOVA); Network for Victim

Recovery of DC; Ohio Alliance to End Sexual Violence; Ohio

Domestic Violence Network; Ohio Victim Witness Association;

Rocky Mountain Victim Law Center; and Women Lawyers on

Guard, Inc.

2

that everyone in the justice system respects and enforces the legal rights of crime victims.

Legal Momentum, NCVLI, and the companion

amici have an interest in ensuring that a federal constitutional right to informational privacy is preserved

and its scope clarified, particularly in the context of

public records act requests in response to which the

government may disclose the details of sexual assaults

of minors.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Christopher Summers, Petitioner J.K.’s high

school teacher and athletic coach, pled guilty to eight

counts of sexual battery against her, and was sentenced to twenty years in prison. Summers’ post-conviction legal challenges did not succeed.

Summers’ parents set up a Facebook page, “Justice

for Chris,” on which they posted J.K.’s photograph,

called J.K. a liar, and posted graphic details of the sexual assaults, including videos of witness interviews

provided for their son’s criminal defense and text messages between their son and J.K. at the time of the

crimes. Summers’ parents were charged with criminal

offenses for this conduct. Pet. at 3.

Summers’ father made a public records act request to the Mercer County Prosecutor’s Office and

Sheriff for documents and witness interview videos,

including videotaped interviews of J.K. by the police

3

early in the criminal investigation, in which she detailed the assaults.

The Ohio Supreme Court held that disclosure of

this graphic material was required, over J.K. and the

government’s privacy objections, because there was no

“categorical exception to disclosure under federal law,”

and disclosure therefore was not prohibited by the

Ohio Public Records Act. State ex rel. Summers v. Fox,

Slip Opinion No. 2020-Ohio-5585, ¶ 41 (2020).

The Ohio Supreme Court’s conclusion defies its

own precedent, under which it has weighed core privacy rights and interests under the public records act,

and Sixth Circuit caselaw, which continues to recognize a federal constitutional right to privacy about sexual matters following this Court’s decision in NASA v.

Nelson, 562 U.S. 134 (2011). Indeed, a “public record”

under the Ohio Public Records Act does not include

“[r]ecords the release of which is prohibited by state or

federal law.” Ohio Rev. Code Ann. § 149.43(A)(1)(v)

(LexisNexis 2021). “Constitutional privacy rights are

‘state or federal law’ for purposes of the Public Records

Act.” State ex rel. Cincinnati Enquirer v. City of Cincinnati, 157 Ohio St. 3d 290, 292, 2019-Ohio-3876, 135

N.E.3d 772 (Ohio 2019); see also State ex rel. Keller v.

Cox, 707 N.E.2d 931, 934 (Ohio 1999) (personal information in police officers’ personnel files is exempt from

disclosure).

Moreover, as we explain, release of such information will undermine judicial and legislative efforts

to protect the privacy of sexual assault victims and

4

encourage reporting and prosecution of such crimes.

The judicial system’s efforts to anonymize victims

(through pseudonyms and elimination of identifying

information in judicial opinions, for example) will be

nullified if victims can be easily “outed” on social media

using documents disclosed by other branches of government through public records act inquiries. And the

purpose of public records act statutes (which exist at

the federal level and in all 50 states) – to lend transparency to government agency action – would not be

served by disclosure of information that would only invade the privacy of individuals rather than illuminate

government decision making.3

---------------------------------♦--------------------------------3

See United States Dep’t of State v. Ray, 502 U.S. 164, 177-79

(1991); United States DOJ v. Reporters Comm. for Freedom of

Press, 489 U.S. 749, 773 (1989) (FOIA “focuses on the citizens’ right

to be informed about ‘what their government is up to.’ Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose. That

purpose, however, is not fostered by disclosure of information about

private citizens that is accumulated in various governmental files

but that reveals little or nothing about an agency’s own conduct.”

(citation omitted)); Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976) (FOIA was designed “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny[.]”

(internal quotations and citations omitted)); see generally Claudia

Polsky, Open Records Shuttered Labs: Ending Political Harassment of Public University Researchers, 66 UCLA L. Rev. 208, 220

(2019) (“Federal and state PRLs in the United States, like the European Enlightenment open records laws from which they descend,

are premised on the need for a democratic government to be transparent and accountable to its citizen-subjects. The federal FOIA,

enacted in 1966 and significantly strengthened in 1974, reflects

the suspicion of U.S. government secrecy born of the Cold War

and Vietnam era, and magnified by the Watergate scandal.”).

5

ARGUMENT

I.

In assessing whether graphic material detailing a minor’s sexual assault should be

disclosed as part of a public records act request, the Ohio Supreme Court refused to

balance a constitutional right to informational privacy recognized by both the

Sixth Circuit and its own precedent. This

alone warrants review, even if there were

no circuit split about the scope and existence of a federal constitutional right to informational privacy.

Petitioners raise three independent grounds for

granting certiorari: (1) a circuit split about the existence and scope of a federal constitutional right to informational privacy; (2) an important issue of federal

constitutional law; and (3) a conflict between a state

supreme court and a federal circuit court of appeals on

an issue of federal constitutional law. We elaborate on

the latter conflict and explain why it compels review.

A “state court of last resort [ ] decid[ing] an important federal question in a way that conflicts with

the decision of another state court of last resort or of a

United States Court of Appeals” is a well-established

ground for review by this Court. U.S. Supreme Court

Rule 10; S. Shapiro et al., Supreme Court Practice

§ 4.9, p.14 (11th ed. 2019) (“Another established reason

for the grant of certiorari is the presence of a direct

conflict between the decision of a court of appeals and

that of the highest court of a state where that conflict

6

concerns a federal question.”)4 Here, the Ohio Supreme

Court ignored J.K.’s assertion of her privacy rights in

information about her sexual assault as a minor, despite the Sixth Circuit’s prevailing law on federal constitutional protection of informational privacy.

Ohio’s Public Records Act, unlike many public records acts,5 has no express statutory privacy exemption.

4

This Court has granted certiorari in many cases in which,

as here, state supreme courts have diverged from federal courts

of appeals about important issues of federal law. See, e.g., Turner

v. Rogers, 564 U.S. 431, 438 (2011) (“In light of differences among

state courts (and some federal courts) on the applicability of a

‘right to counsel’ in civil contempt proceedings enforcing child

support orders, we granted the writ.”); Johnson v. California, 545

U.S. 162, 164 (2005) (granting certiorari when the Supreme Court

of California and Ninth Circuit “provided conflicting answers” to

a question); Florida v. White, 526 U.S. 559, 562-63 (1999) (granting certiorari to address the Florida Supreme Court’s express rejection of an Eleventh Circuit holding); United States v. Estate of

Romani, 523 U.S. 517, 521-22 (1998) (granting certiorari “to resolve the conflict” between the Pennsylvania Supreme Court and

two federal courts of appeals decisions, and to decide whether

U.S. Supreme Court precedent required a different result); Hagen

v. Utah, 510 U.S. 399, 409 (1994) (“We granted certiorari to resolve the direct conflict between these decisions of the Tenth Circuit and the Utah Supreme Court on the question whether the

Uintah Reservation has been diminished.” (citation omitted));

Baldwin v. Alabama, 472 U.S. 372, 374 (1985) (granting review

“to resolve [a] significant conflict” between the Eleventh Circuit

and the Supreme Court of Alabama).

5

Alaska, Arkansas, California, Colorado, D.C., Hawaii, Idaho,

Illinois, Iowa, Kansas, Kentucky, Maryland, Massachusetts,

Michigan, New Hampshire, New Jersey, New York, Rhode Island,

Utah, Vermont, Washington, and Wyoming statutorily consider

personal privacy before disclosing records. See OLR Staff, Other

States’ FOI Exemptions Protecting Personal Privacy, OLR Research Report (Oct. 1, 2013), https://www.cga.ct.gov/2013/rpt/

7

See Ohio Rev. Code Ann. § 149.43(A)(1) (listing exceptions to disclosure); see also State ex rel. Thomas v. Ohio

State Univ., 643 N.E.2d 126, 129 (Ohio 1994) (“FOIA

does not apply here, and R.C. 149.43 contains no similar personal-privacy exception.”). Yet the Ohio Public

Records Act exempts “[r]ecords the release of which

is prohibited by state or federal law.” Ohio Rev. Code

Ann. § 149.43(A)(1)(v) (emphasis added).

The Ohio Supreme Court has recognized that constitutional privacy rights are “state or federal law” for

purposes of the Public Records Act. See State ex rel.

Keller, 707 N.E.2d at 934 (personal information in police officers’ personnel files is exempt from disclosure:

“Police officers’ files that contain the names of the officers’ children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information,

and the like should not be available to a defendant who

might use the information to achieve nefarious ends.

This information should be protected . . . by the constitutional right of privacy. . . .”); State ex rel. Cincinnati

2013-R-0384.htm; Discussion of each exemption, Reporter’s Committee, https://www.rcfp.org/open-government-sections/2-discussionof-each-exemption/ (last accessed Apr. 13, 2021); see also, Ray,

502 U.S. at 175 (the text of the FOIA privacy “exemption requires

the Court to balance ‘the individual’s right of privacy’ against the

basic policy of opening ‘agency action to the light of public scrutiny’ ” (citation omitted)); Cal. Gov’t Code § 6250 (Deering 2021)

(California’s Public Records Act: “In enacting this chapter, the

Legislature, mindful of the right of individuals to privacy, finds

and declares that access to information concerning the conduct of

the people’s business is a fundamental and necessary right of

every person in this state.”).

8

Enquirer v. Craig, 132 Ohio St. 3d 68, 71, 2012-Ohio1999, 969 N.E.2d 243 (Ohio 2012) (Police officers “have

a fundamental constitutional interest in preventing

the release of private information when disclosure

would create a substantial risk of serious bodily harm,

and possibly even death, ‘from a perceived likely

threat[.]’ ” (quoting Kallstrom v. Columbus, 136 F.3d

1055, 1064 (6th Cir. 1998)); State ex rel. McCleary v.

Roberts, 725 N.E.2d 1144, 1150 (Ohio 2000) (disclosure

of photo-identification-program database would create

general risk of harm to children who use municipal recreation facilities); see also United States v. Miami

Univ., 294 F.3d 797, 811 (6th Cir. 2002) (“Ohio Public

Records Act does not require disclosure of records the

release of which is prohibited by federal law.” (citing

Ohio Rev. Code Ann. § 149.43(A)(1)(v))).

“[W]hether the release of a particular record is

prohibited by federal law necessarily implicates the interpretation of that federal law.” Miami Univ., 294 F.3d

at 810. Here, that federal law is the U.S. Constitution

and the substantive due process right to informational

privacy. Both before and after this Court’s decision in

Nelson, the Sixth Circuit “has recognized an informational-privacy interest of constitutional dimension in

only two instances: (1) where the release of personal

information could lead to bodily harm; and (2) where

the information released was of a sexual, personal, and

humiliating nature.” Lambert v. Hartman, 517 F.3d

433, 440 (6th Cir. 2008) (citations omitted); see also

Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998) (“[A]

rape victim has a fundamental right of privacy in

9

preventing government officials from gratuitously and

unnecessarily releasing the intimate details of the

rape where no penalogical purpose is being served.”);

Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 586 (6th

Cir. 2012) (“In contrast to our sister circuits, we have

limited the right of informational privacy ‘only to interests that implicate a fundamental liberty interest.’

Accordingly, a plaintiff alleging the violation of his informational privacy rights must demonstrate that ‘the

interest at stake relates to those personal rights that

can be deemed fundamental or implicit in the concept

of ordered liberty.’ ” (cleaned up)); Lee v. City of Columbus, Ohio, 636 F.3d 245, 260 n.8 (6th Cir. 2011) (acknowledging that Nelson stated that “[w]hether a

broader right to nondisclosure of private information

even exists remains an open question,” but concluding

that “the [Supreme] Court has not provided us with

any reason to take the opportunity to revisit our past

precedents on this matter” because the Court had also

acknowledged the various approaches taken by Circuit

courts).

Evaluating a right to informational privacy claim

in the Sixth Circuit involves a two-step analysis, which

includes a balancing test: “(1) the interest at stake

must implicate either a fundamental right or one implicit in the concept of ordered liberty; and (2) the government’s interest in disseminating the information

must be balanced against the individual’s interest in

keeping the information private.” Bloch, 156 F.3d at

684.

10

Here, the Ohio Supreme Court not only failed to

recognize J.K.’s informational privacy right, as both it

and the Sixth Circuit previously had done in other

cases; it refused to consider that right in connection

with a challenge to a public records act request because to do so would require application of a constitutional balancing test rather than a categorical

prohibition on disclosure. See State ex rel. Summers,

Slip Opinion No. 2020-Ohio-5585 at ¶ 41.

The Ohio Supreme Court’s divergence from the

Sixth Circuit on the U.S. Constitution alone merits review.

This case is also a good vehicle for defining the

scope and application of a federal constitutional right

to informational privacy. First, because the Ohio Public

Records Act has no stand-alone statutory protection

for privacy, the federal constitutional right to privacy

is pivotal to the outcome here. Second, the personal

sexual information at issue lies at the core of informational privacy,6 which makes this case a good vehicle

for this Court to address central privacy protections.

6

See, e.g., Bloch, 156 F.3d at 686; Sealed Plaintiff #1 v. Farber, 212 Fed. Appx. 42, 43 (2d Cir. 2007) (“[A] person’s status as

a juvenile sex abuse victim is clearly the type of ‘highly personal’

information that we have long recognized as protected by the Constitution from governmental dissemination absent a substantial

government interest in disclosure.” (citation omitted)); Malleus v.

George, 641 F.3d 560, 564-65 (3d Cir. 2011) (“[T]he right not to

have intimate facts concerning one’s life disclosed without one’s

consent is a venerable [right] whose constitutional significance

we have recognized in the past”; recognizing three categories of

information as being protected – “sexual information, medical

11

II.

Review is necessary because informational

privacy carries heightened importance in

the Internet age. Moreover, web publication

of government records detailing a minor’s

sexual assault would undermine longstanding judicial and legislative efforts to both

encourage reporting of such crimes and

maintain the anonymity of sexual assault

survivors.

Making information public in a court filing is one

thing; sharing government agency documents through

a public records act request that, as in this case, will in

turn be published on the Internet, is another. “We live

in a time that has commonly been referred to as The

Information Age. Technological advances have made

. . . it possible to generate and collect vast amounts of

personal, identifying information. . . . The advent of

the Internet and its proliferation of users has dramatically increased, almost beyond comprehension, our

ability to collect, analyze, exchange, and transmit data,

information, and some financial information” (internal quotations

and citations omitted, alterations in Malleus)); Dillard v. O’Kelley,

961 F.3d 1048, 1059 (8th Cir. 2020) (en banc) (Kelly, J., dissenting) (“The particular facts alleged here are not near the periphery

of the right to privacy but at its center. Certainly, allegations of

incestuous sexual abuse implicate ‘the most intimate aspects of

human affairs’ and are ‘inherently private.’ ” (cleaned up)); Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006) (“Ms. Anderson

possesses a constitutionally protected privacy interest in the

video because it depicts the most private of matters: namely her

body being forcibly violated.”); Thorne v. El Segundo, 726 F.2d

459, 468 (9th Cir. 1983) (“The interests Thorne raises in the privacy of her sexual activities are within the zone protected by the

constitution.”).

12

including personal information.” State ex rel. McCleary,

725 N.E.2d at 1149.7 “Posting on the Internet is kind of

like a bell you can’t unring.” Jess Bidgood, After Arrests, Quandary for Police on Posting Booking Photos,

N.Y. Times (June 26, 2015), https://www.nytimes.com/

2015/06/27/us/after-arrests-quandary-for-police-onposting-booking-photos.html (quoting a police chief

about posting mug shots on Facebook).8

7

See also id. (citation omitted) (“[I]t is not beyond the realm

of possibility that the information at issue herein might be posted

on the Internet and transmitted to millions of people. Access to

the Internet presents no difficulty. Anyone with a personal computer can transmit and receive information on line via the Internet. This court has long recognized that children possess certain

fundamental rights, among which are the right ‘to be free from

physical, sexual and other abuses.’ Because, unfortunately, we

live in a society where children all too often fall victim to abuse,

it is necessary to take precautions to prevent, or at least limit,

any opportunities for victimization.”); id. (“[A]ny perceived threat

that would likely follow the release of such information, no matter

how attenuated, cannot be discounted.”)

8

Cf. People v. Bryant, 94 P.3d 624, 642 (Colo. 2004) (Bender,

J., dissenting) (“The majority, through its sanction of the order

not to publish, seeks to protect the alleged victim from embarrassing revelations about her private sexual conduct, but ‘that cat is

out of the bag.’ Through court filings and interviews with the alleged victim’s associates, the media have reported on topics related to the evidence considered at the rape shield hearing and

the purposes for which the defense seeks to admit that evidence.”

(citation omitted)); Gambale v. Deutsche Bank AG, 377 F.3d 133,

144 (2d Cir. 2004) (discussing, in the context of unsealing a transcript where a confidential settlement agreement was discussed:

“We simply do not have the power, even were we of the mind to

use it if we had, to make what has thus become public private

again. The genie is out of the bottle, albeit because of what we

consider to be the district court’s error. We have not the means to

put the genie back.” (citation omitted)).

13

Allowing the disclosure of records that detail the

sexual assault of the minor victim here, e.g., videotaped

police interviews where the victim recounts the sexual

assault perpetrated by her teacher and coach, would

serve no governmental interest; it also would undermine all of the concerted judicial and legislative efforts

over the past several decades to protect the privacy of

sexual assault victims and encourage them to come forward. In other words, what the courts and legislatures

have given to sexual assault victims on the one hand

would be taken away by public records acts and the Internet on the other.

“Sexual assault is one of the most traumatic types

of criminal victimization. Whereas most crime victims find it difficult to discuss their victimization,

sexual assault victims find it especially painful. One

obvious reason for this is the difficulty that many

people have in talking about sex. A more important

reason, however, is that many victims of sexual assault are intensely traumatized not only by the humiliation of their physical violation but by the fear of

being severely injured or killed.” Office for Victims

of Crime, OVC Archive: Victims of Sexual Assault,

https://www.ncjrs.gov/ovc_archives/reports/firstrep/

vicsexaslt.html (last accessed Apr. 16, 2021). “The prevalence of Posttraumatic Stress Disorder (PTSD) in

assault survivors is drastically higher than the national prevalence of the disorder, which is a strong

indication that the current therapies for sexualassault-related PTSD are in need of improvement.

Increasing knowledge and understanding of the

14

pathologies associated with rape trauma in biological,

psychological and sociological domains will help to develop more effective treatments for survivors.” Kaitlin

A. Chivers-Wilson, Sexual assault and posttraumatic

stress disorder: A review of the biological, psychological

and sociological factors and treatments, 9 McGill J.

Med. 111 (2006).

“Victim reactions to sexual assaults are still not

well understood in society and ‘rape myths’ are still

common. These misunderstandings, unfortunately,

continue to persist in the justice system. In fact, they

contribute to ongoing deficiencies in criminal justice

system processing of sexual assault cases, leading to

imperfect justice for victims and survivors. This has

been described as the ‘justice gap’ for sexual assault

cases.” Lori Haskell & Melanie Randall, The Impact

of Trauma on Adult Sexual Assault Victims (2019),

https://www.justice.gc.ca/eng/rp-pr/jr/trauma/trauma_

eng.pdf; see also Jennifer J. Freyd, When sexual assault

victims speak out, their institutions often betray

them, The Conversation (Jan. 11, 2018, 6:41 AM),

https://theconversation.com/when-sexual-assault-victimsspeak-out-their-institutions-often-betray-them-87050

(“[I]nstitutional betrayal exacerbates symptoms associated with sexual trauma, such as anxiety, dissociation and sexual problems.”).

Exacerbating all of this is the Internet – which

can broadcast both the original crime and government

records about the abuse. “Many victims know that the

images of their sexual abuse as children are being consumed by numerous, and often unknown, perpetrators

15

and that this revictimization may continue for the rest

of their lives due to the nature of the Internet. Amy

Unknown, the child portrayed in the ‘Misty series,’ one

of the most widely-distributed and collected sets of

child sexual abuse images, wrote about this problem in

her victim impact statement. She wrote:

‘Every day of my life I live in constant

fear that someone will see my pictures

and recognize me and that I will be humiliated all over again. . . . [T]he crime

has never really stopped and will never

really stop. It is hard to describe what it feels

like to know that at any moment, anywhere,

someone is looking at pictures of me as a little

girl being abused by my uncle and is getting

some kind of sick enjoyment from it. It’s like I

am being abused over and over and over

again.’ ”9

Courts and legislatures have adopted a panoply of

approaches to protect sexual assault victims and allow

them to come forward in a way that reduces renewed

trauma and embarrassment. “State legislators have

pursued a number of strategies to protect crime victims from the potential stigma of publicity, including

prohibiting the publication of victim identity, requiring the redaction [of ] names or use of pseudonyms

in police reports and court filings, allowing victims to

9

Warren Binford et al., Beyond Paroline: Ensuring Meaningful Remedies for Child Pornography Victims at Home and Abroad,

35 Children’s Legal Rights J. 117, 121 (2015) (emphasis added).

16

request redaction or the use of pseudonyms in official

documents, protecting victims from the normal requirement that witnesses identify themselves on the

public record at trial, exempting police reports and

court filings relating to certain crimes from public

records requirements, and allowing trials to be closed

to the public in some circumstances.” Charles Putnam

and David Finkelhor, “Mitigating the Impact of Publicity on Child Crime Victims and Witnesses,” Handbook

on Children, Culture, and Violence, 113, 119 (2006).

Both the legislature and the courts protect victim privacy by carefully balancing the privacy right and interest with the rights of the accused and respect for

open courts.

For example, South Carolina “criminalizes publication of a rape victim’s name. The statute makes it a

misdemeanor to publish the name (but not the image

or other identifying information) of victims of criminal

sexual conduct.” Id. at 120 (citing S.C. Code Ann. §§ 163-652-656 (2002); Ga. Code Ann. § 16-6-23 (2004)).

“Texas gives victims of sexual crimes the right to be

referred to by pseudonym in all public files and records

concerning the offense, including police summary reports, press releases, and records of judicial proceedings. Victims who elect to use this procedure complete

a ‘pseudonym form’ developed and distributed by the

Sexual Assault Prevention and Crisis Services Program of the Texas Department of Health, which records

their name, address, telephone number, and pseudonym.” Id. at 121 (citing Tex. Code Crim. Proc. Ann. art.

57.02 (West 2002)).

17

Rape shield laws prevent publication of victims’

names, as well as limit inquiries into a victim’s past

sexual history. See Michigan v. Lucas, 500 U.S. 145,

149-50 (1991) (recognizing that Michigan’s rape-shield

statute “represents a valid legislative determination

that rape victims deserve heightened protection

against surprise, harassment, and unnecessary invasions of privacy”). In discussing a Florida law punishing publication of rape victim names, this Court

recognized that Florida’s law pursued three “highly

significant interests”: “the privacy of victims of sexual

offenses; the physical safety of such victims, who may

be targeted for retaliation if their names become

known to their assailants; and the goal of encouraging

victims of such crimes to report these offenses without

fear of exposure.”10 Florida Star v. B.J.F., 491 U.S. 524,

10

This Court recognized the danger of retaliation over thirty

years ago, before the age of the Internet. As this case illustrates,

through the actions the parents have already taken which led to

a criminal complaint against them, the Internet amplifies this

danger.

Sexual assault victims whose names become known are often

the target of harassment – including death threats – as well as

efforts to make good on them; the Internet (particularly where the

alleged perpetrator is well-known) may exacerbate this by widening the group of potential harassers. See, e.g., Man charged with

soliciting murder of Kobe Bryant’s accuser, ESPN News Wire,

http://www.espn.com/espn/wire/_/id/1621370 (last visited Apr.

21, 2021) (man offered to kill Kobe Bryant rape accuser); Iowa

man sentenced to prison for threatening Bryant accuser, WaterlooCedar Falls Courier, https://wcfcourier.com/news/breaking_news/

iowa-man-sentenced-to-prison-for-threatening-bryant-accuser/

article_be7994cf-2222-5f5a-b2f5-698ba79d4a89.html (last visited Apr. 21, 2021); What happened in the rape claim case

against NBA star Kobe Bryant that was dropped in 2004?,

18

537 (1989); see also People v. Fontana, 232 P.3d 1187,

1194 (2010) (“The Legislature’s purpose in crafting

these limitations is manifest and represents a valid

determination that victims of sex-related offenses

deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. By affording victims protection in most instances, these

provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders.” (citations omitted)); Bryant, 94 P.3d at

636 (noting that publication of in camera transcripts of

a victim’s sexual conduct and its “graphic detail” would

inflict “[t]he very damage that the rape shield statute

is designed to prevent” and would also “demonstrate

to other sexual assault victims that they cannot rely

on the rape shield statute to prevent public airing of

sexual conduct testimony the law deems inadmissible.

This would directly undercut the reporting and prosecution of sexual assault cases, in contravention of the

General Assembly’s legislative purposes.”).

Several states also provide heightened protections

to minor victims of sex crimes. See, e.g., In re A Minor,

595 N.E.2d 1052, 1056 (Ill. 1992) (upholding an Illinois

state law preventing the press from disclosing the

identities of minor victims of sex crimes, because: “Public identity could cause continuing emotional trauma

to these unfortunate children and impede the lengthy

Australian Broad. Corp., https://www.abc.net.au/news/2020-01-30/

what-happened-in-the-kobe-bryant-nba-star-rape-claim-case/

11912250 (last visited Apr. 21. 2021) (rape case dismissed because, after receiving death threats, victim declined to proceed).

19

and difficult healing process which they must endure.

We find that the danger of public disclosure and the

probability of irreparable adverse effects which such

disclosure would entail to be a compelling State interest at stake in this case.”); Allied Daily Newspapers v.

Eikenberry, 848 P.2d 1258, 1262 (Wash. 1993) (“recogniz[ing] that closure of judicial proceedings or court

documents may, under some circumstances, be necessary in order to protect child victims of sexual assault

from further trauma and harm and to protect their

rights of privacy”).

For example, child victims of sex crimes may be

allowed to testify remotely by video. “Closed Circuit

Television (CCTV) is a video system that securely

transmits signals from a video camera to specified television monitors. In the context of child victim witnesses, it is used to limit the number of individuals in

the room when the child is testifying, thereby creating

a less intimidating environment. Victims of child abuse

typically experience denial of the abuse, helplessness,

a lack of self-worth, and an inability to trust adults.

Subjecting children who have experienced a multitude

of these emotions to ‘adversarial testing’ in open court

in front of a room full of other adult authority figures,

such as a defense attorney and a judge, can aggravate

their mental and emotional distress. Existing research

indicates that, for some children, testifying by CCTV

can alleviate significant stressors and lower levels of

anxiety pre-trial.”11 Survivor Protection: Reducing the

11

Permitting testimony in this fashion requires a judicial determination that it is “necessary to further an important public

20

Risk of Trauma to Child Sex Trafficking Victims,

Rights4Girls, at 17 (Jan. 2018) https://rights4girls.org/

wp/wp-content/uploads/r4g/2018/01/Survivor-Protection.

pdf.

Ohio law provides many of these same protections

to sexual assault survivors and child sexual assault

victims. Ohio’s rape shield law bars questioning sexual

abuse victims about their sexual history. Ohio Rev.

Code Ann. §§ 2907.02(D), 2907.05(E) (LexisNexis 2021);

State v. Jeffries, 160 Ohio St. 3d 300, 306, 2020-Ohio1539, 156 N.E.3d 859 (Ohio 2020) (noting that the

rape-shield “promotes several interests” including

“preventing harassment of the victim with probing inquiries into private matters” and “encouraging victims

to report sexual assaults without fear of being harassed and traumatized by the process”). Victims of

certain sex crimes have the right to ask the judge to

order that the information in the police report not be

released. Ohio Rev. Code Ann. § 2907.11 (LexisNexis

2021). If the judge grants the request, all names and

details will remain confidential until after a preliminary hearing or an arraignment or until the case is

dismissed. Id. The prosecutor may file a motion requesting an order that the victim and other witnesses

in the case not be compelled to give testimony that

would disclose the victim’s or victim’s representative’s

address, place of employment, or similar identifying

policy” so long as “the reliability of the testimony is otherwise assured” to ensure careful balance between victim protection and

the accused’s right to confrontation. Maryland v. Craig, 497 U.S.

836, 850-53 (1990).

21

facts without the victim’s consent. Ohio Rev. Code Ann.

§ 2930.07(A) (LexisNexis 2021). If the court orders that

the identifying information must remain confidential,

the court files or documents must not contain that information unless it is used to identify the location of

the crime. Ohio Rev. Code Ann. § 2930.07(B). The hearing will be recorded, and the court must order the transcript sealed. Id.

A prosecutor may admit videotaped preliminary

hearing testimony of the child victim as evidence at the

trial, instead of the victim testifying at the trial. Ohio

Rev. Code Ann. § 2945.49 (LexisNexis 2021). A child

victim’s testimony at trial may be taken by deposition,

videotaped, and then played for the jury. Ohio Rev.

Code Ann. § 2152.81 (LexisNexis 2021). Appellate

courts use pseudonyms in their opinions to protect

minor victims. State v. Boehme, No. 27255, 2017 WL

4712432 at *1 n.1 (Ohio Ct. App. Oct. 20, 2017) (“We

use this pseudonym for the victim to protect her identity”); State v. Hall, No. 25794, 2014 WL 2091895, at *1

n.1 (Ohio Ct. App. May 16, 2014) (“We use this pseudonym to protect the identity of the minor victim”).

These interlocking efforts to protect and support

sexual assault victims would all be compromised if

this same information were disclosed through public

records act requests and allowed to be published on

the Internet.12 It is often the judiciary who carefully

12

Recent efforts at criminal justice reform, including expungement, would likewise be compromised by publication of

arrest and other criminal records on the Internet. E.B. v. Landry,

No. 19-862, 2020 WL 5775148, at *4 (M.D. La. Sept. 28, 2020)

22

(even if the defendants’ records were expunged “future employers

will nonetheless learn that they were the named Plaintiffs in a

case involving the expungement of criminal records through a

simple internet search”); Lucky v. United States, 15-MC-1979,

2016 WL 525474, at *3 (E.D.N.Y. Feb. 8, 2016) (noting that expungement would not “have any effect on the availability of newspaper or internet articles about [the petitioner’s] case”); In re

Expungement of the Crim. Records of E.C., 184 A.3d 120, 122 n.2

(N.J. Super. Ct. App. Div. 2018) (“We use E.C.’s initials to protect

her privacy, as this opinion discloses personal details from her

application. Further, posting her name on the internet, as part of

this opinion, would defeat the purpose of expungement, should

that relief be granted remand.”); In re Expungement Petition of

R.M.M., No. A-5413-13T3, 2015 WL 2259228, at *1 n.1 (N.J. Super. Ct. App. Div. May 15, 2015) (the court used the petitioner’s

initials because “it would do him little good to later obtain expungement, when this opinion revealing his identity would still

be available on the internet”).

In Michigan, for example, if an individual is arrested but the

charges are dismissed before trial, the arrest record must be removed from the online criminal history database, and absent

objection from court or prosecutor, the arrest record, all biometric

data, fingerprints, and DNA samples or profile must be expunged, destroyed, or both. Mich. Comp. Laws Serv. §§ 764.26a(1),

28.243(8) (LexisNexis 2021); see also Pennsylvania’s Clean Slate

Law, 2018 Pa. Laws 56, codified at 18 Pa. Cons. Stat. §§ 9121-9125

(2021) (establishing limited access to expunged records); Fiscal

Impact Statement for Proposed Legislation: Senate Bill No. 1339,

2020 Legis. Bill Hist. Va. S.B. 1339 (Va. Feb. 5, 2021) (“Summary

of Proposed Legislation”) (“The bill creates a process for the sealing of criminal records for certain charges, convictions, deferred

dispositions, acquittals, and for offenses that have been nolle

prossed or otherwise dismissed. The bill also expands the eligibility of criminal records for expungement, expedites the expungement process for dismissed district court charges, introduces new

criminal penalties regarding illegal disclosure and requiring disclosure of sealed and expunged records, and establishes civil penalties for business screening services that publish unauthorized

police and criminal records.”).

23

balances the interests of the victim, the accused, and

the presumption that our courts should be open in determining whether records of sexual assault victims

should remain private; allowing release of this information through public records act requests would defy

the judiciary’s efforts.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons, and for the reasons stated in

the petition, this Court should grant review.

Dated: May 3, 2021

Respectfully submitted,

MARY-CHRISTINE SUNGAILA*

Counsel of Record

JOSHUA OSTRER

LAUREN JACOBS

BUCHALTER APC

18400 Von Karman Avenue

Suite 800

Irvine, CA 92612

T: (949) 760-1121

msungaila@buchalter.com

JENNIFER M. BECKER

LYNN HECHT SCHAFRAN

LEGAL MOMENTUM

32 Broadway, Suite 1801

New York, NY 10004

T: (212) 925-6635

jbecker@legalmomentum.org

lschafran@legalmomentum.org

Attorneys for Amici Curiae