Re: 5/8/01 - Amended Respondent's Brief for FIC 2001-131 and FIC 2001-147
FREEDOM OF INFORMATION COMMISSION
STATE OF CONNECTICUT
IN THE MATTER OF :
A COMPLAINT BY :
:
JEFFREY MITCHELL : FIC 2001-131
Complainant :
:
AND :
:
GURA, LES AND :
THE HARTFORD COURANT : FIC 2001-147
Complainant :
:
VS. :
:
CHIEF, POLICE DEPARTMENT :
CITY OF NEW HAVEN : MAY 8, 2001
Respondent :
AMENDED RESPONDENT'S BRIEF
The Chief, Police Department, City of New Haven, Respondent in the above-titled matter, submits this Brief in support of its position that the records requested in the above-titled matter are exempt from disclosure pursuant to the Freedom of Information Act, Connecticut General Statutes, Sections 1-210(b}(3}(A), and {C}.
FACTS PRESENTED
1. By letter dated February 1, 2001 addressed to Chief Melvin Wearing of the New Haven Police Department, Complainant, Jeffrey Mitchell, requested the following information: (1) The 911 call made at approximately 9:55 p.m. on Friday, December 4, 1998 pursuant to the discovery of a woman bleeding, later identified as Yale student Suzanne Jovin; and (2) Copies of all information provided to Andrew Rosenzweig, a private investigator not in the employ of the New Haven Police department.
2. By way of a letter dated February 23, 2001 addressed to Jeff Mitchell, Chief Melvin Wearing denied Mr. Mitchell's request for the following reasons: That the requested records were exempt from release under the FOIA because the records requested pertained to an incident that is an "on-going murder investigation" and was an "open case"; and that "[r]elease of information regarding this on-going murder investigation would be prejudicial to future law enforcement action.
3. By a letter dated March 3, 2001 addressed to Chief Wearing of the New Haven Police Department, the Complainant, Les Gura, City Editor of The Hartford Courant, requested to view police documents relating to the homicide of Suzanne Jovin in New Haven on Dec. 4, 1998, as follows: "[T]he entire contents of the file in the case".
4. By way of a letter dated March 7, 2001 addressed to Mr. Gura, Chief Melvin Wearing denied Mr. Gura's request for the following reasons: "That as previously discussed in telephone conversation, the case is an on-going murder investigation; and, that the release of information regarding this on-going murder investigation would be prejudicial to future law enforcement action and could compromise the safety of individuals who have provided information to police.
5. Both Mr. Mitchell and Mr. Gura (the "Complainants") filed complaints with this Commission alleging that the Chief violated the Freedom of Information Act by failing to disclose the requested information.
6. The Commission consolidated the cases and conducted a hearing on April 16, 2001. All parties had the opportunity to submit documentary evidence and testimony relating to the complaints discussed above.
7. At the conclusion of the hearing, the Commission's Hearing Officer directed the Respondent to submit for in-camera inspection, all documents compiled by the New Haven Police Department involving the Jovin murder investigation.
8. Respondent has agreed to comply with the Commission's order and intends to submit the documents for in-camera inspection by the Commission.
QUESTIONS PRESENTED
1. WHETHER THE RECORDS REQUESTED BY THE COMPLAINANTS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, C.G.S. SECTION 1-210(b) (3)(C) BECAUSE THE RECORDS WERE COMPILED IN CONNECTION WITH THE DETECTION OR INVESTIGATION OF CRIME, AND THE DISCLOSURE OF SUCH RECORDS WOULD NOT BE IN THE PUBLIC INTEREST BECAUSE IT WOULD RESULT IN DISCLOSURE OF INFORMATION THAT IS TO BE USED IN PROSPECTIVE LAW ENFORCEMENT ACTION IF PREJUDICIAL TO SUCH ACTION.
2. WHETHER THE RECORDS REQUESTED BY THE COMPLAINANTS ARE EXEMPT FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT, C.G.S. SECTION 1-210(b) (3)(A)
3. BECAUSE THE RECORDS WERE COMPILED BY RESPONDENT IN CONNECTION WITH THE DETECTION OR INVESTIGATION OF CRIME, AND THE DISCLOSURE OF SUCH RECORDS WOULD NOT BE IN THE PUBLIC INTEREST BECAUSE IT WOULD RESULT IN THE DISCLOSURE OF THE IDENTITY OF INFORMANTS NOT OTHERWISE KNOWN OR THE IDENTITY OF WITNESSES NOT OTHERWISE KNOWN WHOSE SAFETY WOULD BE ENDANGERED OR WHO WOULD BE SUBJECT TO THREAT OR INTIMIDATION IF THEIR IDENTITY WAS MADE KNOWN.
COMPLAINANT'S POSITION
At the hearing, in support of his position that the records should be disclosed to him, Mr. Mitchell testified that he believed that the 911 tapes were disclosable based upon legal precedent that he could not identify. He further testified that he believed, based upon what he read in newspaper articles, that information had been provided to a private investigator, Andrew Rosenzwweig [sic], not employed by the New Haven Police Department.
In addition, Mr. Gura testified that as a result of an alleged statement made by the Mayor of City of New Haven to the effect that the documents would be made available to someone with "a fresh eye", the documents should be disclosed to him and the Hartford Courant. Further, Mr. Gura argued that the documents should be disclosed due to a statement allegedly made by the Chief of Police to the effect that the State's Attorney's Office was working with and providing information to a private investigator, Andrew Rosenzwweig [sic].
RESPONDENT'S POSITION
The Respondent's position is that the records are exempt from disclosure pursuant to the Section. 1-210(b}(3)(A) and (C) of the Act. These provisions permit the nondisclosure of:
"[R]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of such records would not be in the public interest because it would result in the disclosure of
(A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known,
(C) information to be used in prospective law enforcement action if prejudicial to such action, ..."
In support of its position, Respondent, offered testimony through Lt. Norword, head of the Police Department's Detective Division. Lt Norwood's testimony is summarized in the numbered paragraphs below as follows:
1. Lt. Norwood is the head of the Detective Division of the Police Department. As part of his duties as head of the Detective Division, Lt. Norwood is responsible for supervising the criminal investigation into the murder of Suzanne Jovin. This murder investigation is active and ongoing on a daily basis.
2. As a result of the Police Department's investigation, documents have been compiled in connection with the investigation and are being maintained by the Police Department. Such documents include, but are not limited to, police reports, witness statements, 911 calls, investigative notes, etc. Some documents have been shared with the State's Attorney's Office who is ultimately responsible for supervising the investigation and prosecution of the case. However, the Police Department has not made any of the documents available in any form to any member of the general public. Specifically, the Police Department has not made any of the documents in question available to a private investigator named Andrew Rosenzwweig [sic]. The Department has discussed the case with Mr. Rosenzweig, but have made no reference to any documents nor quoted any information from any documents that have been compiled in connection with this murder investigation.
3. The Police Department believes that disclosure of any of the requested records would jeopardize or prejudice the ongoing investigation of this crime and would negatively influence and prejudice the ultimate adjudication of the case and future law enforcement action because the investigation has not yet been completed, the perpetrator is still at large, and it has not yet been determined what documents contained in the file would ultimately be important in the apprehension of the perpetrator and future prosecution of the case. Furthermore, Lt. Norwood testified that premature disclosure of statements of witnesses and other documents might prejudice future law enforcement proceedings because other potential witnesses might change their testimony as a result of such disclosure.
4. Although no one has been arrested or charged with the murder, the Police Department expects to continue the investigation of the murder until it is resolved. Lt. Norwood stated that the requested records contain the identify of witnesses or informants not otherwise known, whose safety might be endangered by potentially violent actions on the part of suspects, and that, given the gruesome nature of the crime, he considers the perpetrator, who is still at large, a dangerous individual. As such, it is very important to maintain the anonymity of such witnesses or potential informants.
ARGUMENT AND AUTHORITIES
1. There is no question that the New Haven Police Department (the "Police Department") is a law enforcement agency. Furthermore, all parties involved know, and the testimony and evidence is undisputed, that the Police Department is treating the death of Suzzane [sic] Jovin as a crime and that the Police Department is conducting an ongoing criminal investigation into Ms. Jovin's death. It is further undisputed that as a result of the Police Department's investigation, documents have been compiled in connection with the investigation and is being maintained by the Police Department.
The Complainants have alleged that Police Department has disclosed documents to a member of the general public. The Complainant's, however, have not identified any such documents have allegedly been disclosed. In fact, the complainants have not provided the Commission with any credible evidence that would substantiate their allegations that the Police Department disclosed any of the documents in question to any member of the public. The allegations of such disclosure are further disputed by the Police Department's testimony that they have not disclosed any documents to anyone other that the State's Attorneys Office, another law enforcement agency.
The Police Department maintains that the documents requested are exempt under Sec. 1-210(b)(3)(C) of the Act because the documents compiled as a result of the criminal investigation will be used in future law enforcement action. The Police Department testified that although no one has been arrested or charged with the murder, the Police Department expects to continue the investigation of the murder until it is resolved. In addition, the Police Department testified that it intends to use some, if not all of the documents in the criminal prosecution of the case, but that it is too soon to determine which particular document or documents will ultimately be relied upon or used in future law enforcement action. Furthermore, the Police Department has offered undisputed testimony as to the prejudicial effect the premature disclosure of any of the documents in question would have upon the further investigation of this crime, and the ultimate prosecution of this case.
The Commission has requested that the Police Department to produce for in-camera inspection all of the documents. The Police Department intends to comply with the Commission's request. Nevertheless, the Department's position is that all, or only some, of the information may be used in a future law enforcement action, but that because the investigation is ongoing, it is too early to say which documents will in fact be used. Therefore, at this stage, the integrity of all of the documents should be maintained and none of the information should be disclosed at this time.
On the basis of the evidence offered, the Commission must determine whether the Police Department has met its evidentiary burden for nondisclosure under Sec. 1-210(b)(3)(C) in accordance with the standards set forth in Department of Public Safety, Division of State Police v. Freedom of Information Commission, Et Al, 51 Conn. App. 100 (1998). In Department of Public Safety, the Court set forth the following standard: "The statute, therefore, requires an evidentiary showing (1) that the records are to be used in a prospective law enforcement action and (2) that the disclosure of the records would be prejudicial to such action." 51 Conn. App. at 105. While the Police Department believes that it has met its burden through uncontroverted testimonial evidence, as stated above, the Police Department will submit the entire contents of its Jovin murder investigation to assist this Commission in its determination.
2. The Police Department also maintains that documents are exempt from disclosure pursuant to Section 1-210(b)(3)(A) of the Act because it would result in disclosure of the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to thereat or intimidation if their identity were made known. To support its position, Lt. Norwood testified as to the existence of such witness statements, and the potential ways in which a witness or informant not otherwise known to the public may be endangered or be subjected to threats or intimidation. Respondent believes it has met its burden of proof on this issue.
There is no Connecticut case on point that addresses the burden of proof on this particular exemption. However, the case of National labor Relations Board v. Robbins Tire and Rubber Company, 98 S. Ct. 2311 (1978, has articulated the appropriate standard. In National labor Relations Board v. Robbins Tire and Rubber Company, the court considered the question whether witness statements in a pending unfair labor practice proceedings were exempt under the Federal Freedom of Information Act (the "FOIA") that exempts investigatory records compiled for law enforcement purposes to the extent that production of such records would interfere with enforcement proceedings. The Supreme Court held that the "release of witnesses' statements prior to unfair labor practice hearing necessarily would interfere in a statutory sense with the National Labor Relation Board's enforcement proceedings". As such, the statements were exempt until after the hearing. National labor Relations Board v. Robbins Tire and Rubber Company, 98 S. CT.2311. Significantly, the Court reasoned that the exemption language of the statute did not support an interpretation that determination of "interference" under the FOIA could be made only on a individual, caseby-case basis, and that indeed, the exemption as a whole suggested to the contrary. The Court further reasoned that such interpretation is not supported by other portions of the FOIA providing for disclosure of segregable portions of records and for incamera review of documents, and placing the burden of justifying nondisclosure on the Government. 98 S. CT.2311.
The Court, in holding that the documents were exempt, reversed the Court of Appeals decision that the NLRB had failed to sustain its burden of demonstrating the availability of the exemption because it had introduced no evidence that interference with the unfair labor practice proceeding in the form of witness intimidation was likely to occur. In reversing the Court of Appeals decision, in essence, the Court found that the witness statements were per se not disclosable until after the proceeding was concluded. The NLRB was therefore not required to submit them for incamera inspection so that the Court could determine on a case by case basis whether the statements were disclosable. The Court concluded:
"IT]he NLRB ha[s] met its burden of demonstrating that the disclosure of the witnesses' statements in question would interfere with the enforcement proceedings, since the dangers posed by premature release of the statements would involve precisely the kind of interference with enforcement proceedings that [the exemption] was designed to avoid, the most obvious [being the risk] that employers or in some cases, unions will coerce or intimidate employees and others who have given statements, in a effort to make them change their testimony or not testify at all.. 98 S.Ct. at 2313.
While the witness statement exemption under the Connecticut Act varies somewhat from the Federal FOIA, the Court's reasoning in National labor Relations Board v. Robbins Tire and Rubber Company is applicable to this case. It is clear that the disclosure of any of the witness or informant statements would pose a danger to such individuals. It is the position of the Respondent that once the Commission satisfies itself that the documents exist pursuant to an incamera inspection, the Commission must find that such documents are exempt without further proof.
CONCLUSION
In conclusion, in view of the above facts and arguments, the Respondent has met its evidentiary burden for non-disclosure of the requested information pursuant to the exemptions set forth under C.G.S. Sec. 1-210(b)(3){A) and (C).
Based on the foregoing, the Respondent has provided evidence, through the testimony of Lt. Norwood, that the subject matter of this proceeding involves an ongoing and active criminal investigation into Ms. Jovin's murder, and that while an arrest has not been made, the records, including reports and statements of witnesses contain evidence the Police Department ultimately intends to use in its ongoing investigation and in future law enforcement action. Furthermore, as set forth above, there is a reasonable basis to believe that the disclosure of the requested information would prejudice any future criminal investigation and law enforcement action or proceeding in this case, and unnecessarily expose potential witnesses and informants not otherwise known to the public to danger. For these reasons, nondisclosure of the documents in questions outweigh the Complainants' need to know the nature of evidence the Police Department has compiled in connection with its murder investigation..
Finally, Respondent believes that the public interest demands nondisclosure of the requested information. The Commission, in prior decisions involving the same issues as presented in this case agreed with Respondent, and found that the exact records as here, involving the a murder investigation as here, were permissively exempt from mandatory disclosure pursuant to Connecticut General Statute ("C.G.S.") Sec. 1210(b)(3)(C). See Bill Kaempffer and New Haven Register, v. Office of Corporation Counsel, City of New Haven, Docket #FIC 2000-114, May 10, 2000, and Paul Bass and New haven Advocate v. Chief, Police Department, City of New Haven, Docket #FIC 2000-312, October 27, 2000. Respondent respectfully urges the Commission to weigh its decision in this case in view of its decisions in Bill Kaempffer and Paul Bass.
Respectfully submitted
RESPONDENT, CHIEF, POLICE DEPARTMENT,
CITY OF NEW HAVEN
By: Donna Chance Dowdie
Assistant Corporation Counsel
OFFICE OF CORPORATION COUNSEL
165 Church Street, 4th Floor
New Haven, CT 06515
Juris No. 42715
Telephone (203) 946-7958
Its Attorney |
