Re: 5/7/01 - Brief of Complainants Les Gura and The Hartford Courant for FIC 2001-147
In the matter of a Complaint by : DOCKET # FIC 2001-147
:
LES GURA AND THE :
HARTFORD COURANT :
:
v. :
:
Complainant(s) :
:
CHIEF, POLICE DEPARTMENT :
CITY OF NEW HAVEN : MAY 7, 2001
BRIEF OF COMPLAINANTS LES GURA AND THE HARTFORD COURANT
By letter dated March 2, 2001 (Compl. Ex. A in FIC 2001-147) Complainant Les Gura, City Editor of Complainant The Hartford Courant, requested of Respondent Chief of Police "a chance to view police documents relating to the homicide of Suzanne Jovin, in New Haven, on December 4, 1998". He asked "to view the entire contents of the file", but indicated his willingness to discuss the possibility that some documents may be exempt.
In response, Respondent in his letter to Complainant dated March 7, 2001 (Compl. Ex. B in FIC 2001-147), citing no provision of the FOIA or any other statute, asserted in conclusory manner that "[r]elease 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." He went on to say that he had "consulted with the New Haven State's Attorneys Office and determined that the information you are requesting is exempt from release." (While he does not claim to have been so advised by that Office, that is the impression conveyed by his statement.) This appeal followed.
THE HEARING
The hearing on April 16 was noteworthy only for the complete absence of any .evidence showing the harm Respondent believes will occur from disclosing the file -- or any part of it -and how the existence of that harm, if proven, would statutorily allow him to deny access to each and every part of the file. Lt. Brian Norwood, Respondent's sole witness, testified that the file Complainant seeks comprises 10-12 binders of perhaps 100 pages per binder. He did not identify the contents further. The reasons he claimed the files are exempt are that their release would possibly prejudice a jury and give the public an erroneous impression. While he asserted that the Police Department had made none of the files available to the private investigator hired by Yale University (where the victim had been a student), he declined (upon purported direction from the Assistant State's Attorney representing the Intervenor State of Connecticut) to answer whether he knew if the State's Attorney's offices had made any of the files available to the private investigator. He acknowledged that the private investigator is allowed to use desk space at the Police Department.
THE STATUTES INVOLVED
While Respondent has nowhere cited a statute in his response to Complainant on which he based his refusal to allow inspection of the Jovin file, from the arguments of counsel for Respondent and the State it is logical to infer that they rely on General Statutes § 1-210(b)(3), which permits disclosure of, but exempts from mandatory disclosure, the following:
(3) Records 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 said 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, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing the morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216;
Nothing in the record at the hearing disclosed any concern about subsections (D), (E). (F) or (G); and so Complainants are left to infer that subsections (A), (B) and (C) represent the basis for Respondent's refusal to disclose.
THE LAW
The framework under which exemption claims such as Respondent's must be assessed has long been clear:
"[I]t is well established that the general rule under the Freedom of Information Act [FOIA] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the FOIA legislation. Board of Education v. Freedom of Information Commission [208 Conn. 442, 450, 545 A.2d 1064 (1988)]. The burden of proving the applicability of an exception to the FOIA rests upon the party claiming it. Rose v. Freedom of Information Commission. 221 Conn. 217, 232, 602 A.2d 1019 (1992)." (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, 221 Conn. 393,398, 604 A.2d 351 (1992).
Carpenter v. Freedom of Information
Commission, 59 Conn. App. 20, 24-25
(2000), cert. den. 254 Conn. 933.
The application of that standard to the exemption claimed here -- § 1-210(b)(3) – has equally clearly been established:
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.
…
The statute, however, does not require that an investigation be closed before disclosure is required. Additionally, the statute is not satisfied and, consequently, information is not exempted from disclosure by the mere good faith assertion that the matter to which the information pertains is potentially criminal. As we have stated, there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.
Department of Public Safety v. Freedom of
Information Commission, 51 Conn. App.
100, 105 (1998).
Respondent, as noted earlier, has made no such evidentiary showing, and for that reason Complainants' complaint must be sustained. Indeed, there was no evidence that Respondent Chief ever looked at the documents, much less made the factual determinations necessary to support a claim of exemption. Shew v. FOIC, 245 Conn. 149, 167 (1998). The Commission. however, has permitted Respondent to cure his failure by filing the files in question with the Commission for its in camera review pursuant to FOIC Regulations § 1-21j - 37(f). That inspection and decision by the Hearing Officer requires her inspection of each and every document in the files, and an assessment as to each such document whether whatever exemption claim is made as to it (1) comes within the statutory exemption categories and, most significantly, (2) if at all viable, can be satisfied by redaction of a word, a phrase or a sentence, rather than the entire document. The goal is to disclose as much as possible, concealing only so much as must be concealed to satisfy the legitimate requirements of the particular exemption. An exemplar of the process dealing with this statute is FIC 87-173 (1992), Donovan v. Greenwich Police Department.
Thus, for instance, if the claim is, under (A), that an informant's identity or that of a witness, not otherwise known, would be revealed and endanger their safety, the Hearing Officer must make a factual determination as to (1) if the person can legitimately be characterized as an "informant" or "witness", (2) whether their identity is in fact otherwise known, (3) whether their safety "would" (not "possibly might") be endangered from disclosure and/or (4) whether they "would" (not "possibly might") be subject to threat or intimidation. As to (C), there must be a showing -- not just speculation, conjecture or the assertion of a possibility -- that disclosure of the data would be prejudicial to the law enforcement action.
That kind of showing, of course, should more appropriately have been made through witnesses discussing each of the documents in open hearing, even if the documents themselves were shown only to the Hearing Officer. The witness could then have been cross-examined. As it now is, the Hearing Officer must by herself undertake the fact-intensive inquiry document by document and page by page; and before anything can be ordered concealed she must be satisfied that there has been more than a conclusory allegation or rote incantation of the statute's exempting language. She must be satisfied that Respondent has met the burden of Dept. of Public Saftety, supra, that there has been an "evidentiary showing" on all requisite elements of any claimed exemption.
THE STATE'S ATTORNEY'S INTEREST
The State of Connecticut, acting through the New Haven State's Attorney's Office, sought and was granted intervenor status because, inter alia, that Office would be responsible for prosecuting anyone charged with Ms. Jovin's murder. During the course of the hearing mention was made of General Statutes § 1-201's exclusion of the Division of Criminal Justice from the definition of "public agency" (except as to its administrative functions). While thereafter Intervenor expressly disclaimed any intent to claim exemption for the records because they or control of them might have been physically transferred to DCJ, Complainant wishes his position to be clear on this. Respondent cannot escape his duty to disclose records maintained by him at the time the request for them was made by the simple expedient of handing them off to a person or entity that is not a "public agency" within the meaning of General Statutes § 1-200(1). While Respondent has not said he has done so or intends to do so, it should be clear that the FOIA does not countenance such a subterfuge.
CONCLUSION
For the reasons stated, the complaint should be sustained on the present state of the record. Respondent has made no evidentiary showing that the data falls under any exemption of the FOIA. If that evidentiary showing is to be permitted through in camera review, that review must bear in mind that disclosure is the rule and concealment the exception: that each word or phrase in each document must be examined to determine if any showing has been made to support its concealment; that the reasons given at the hearing for concealing the data are not reasons recognized under the FOIA; and that Complainants are entitled to see every word that has not been demonstrated to be exempt.
COMPLAINANTS
LES GURA AND THE
HARTFORD COURANT
BY Ralph G. Elliot, of
Tyler Cooper & Alcorn, LLP
CityPlace - 35th Floor
Hartford, CT 06103-3488
Juris No. 00362
Tel.: (860) 725-6200
Fax: (860) 278-3802 |
