Re: Transcript for the latter part of the FOI hearing
Note: I transcribed this myself from an audio recording. Anyone seeking an official rendition of the hearing should obtain a set of tapes from the FOI Commission.
BH = Barbara Housen, hearing officer
JC = James Clark, State’s Attorney
JM = Jeff Mitchell, complaintant
LN = Lieutenant Norwood, head of Jovin investigation for NH Police
NH = Barbara Chance Dowdie, counsel for the city of NH
RE = Ralph Elliot, counsel for the Hartford Courant
RE: Lt. Norwood, have any of the records that Mr. Gura has asked to see been made available to the state’s attorney’s office?
LN: Yes.
RE: Do you know whether the state’s attorney’s office has made any of those records available to Mr. Rosenzweig or to any private investigator?
JC: I object to that question.
BH: What’s your objection?
JC: My objection is that this is a request to the police department. The state’s attorney’s office and its documents are exempt from the Freedom of Information Commission and that question is irrelevant to this proceeding… on all levels.
BH: Well I think if you… why don’t you take it in two stages. His question is whether or not records have been turned over…
JC: …to Mr. Rosenzweig.
RE: By whom.
BH: And I believe your contention is that the state’s attorney’s office is… their records are excluded from this court room’s decisions. And I don’t think that… I’ll allow the question.
JC: Then I instruct him not to answer that.
RE: Well I’m going to object to that unless…
[Argument ensued that was wiped from the tape]
JC: Well I apologize.
BH: Well he can choose how to put on or defend his position, the commission will have to try to sort it out as best it can. I believe it would helpful if the witness could answer that specific question and if there is a legitimate claim of exemption that the records are in the possession of or are the records of the state’s attorney’s office then I can deal with that separately.
JC: But there’s nothing before the commission concerning the state’s attorney’s office at this time and I object to the relevance of that question.
BH: OK, again you choose to put on your position as you see fit. I’m not going to require the witness to answer the question. The commission will have to just makes it’s own…
RE: May I at least put on the record my position on this thing?
BH: Sure but do you want to save that for your argument so that we can just do…
RE: I think it’s not really argument. This really goes to the essence of this case and that is these records that we are talking about are the records of the chief of police or the police department of the city of New Haven and they can not by some magic act of transubstantiation be transformed into the records of the state’s attorney’s office and subject to exemption as a record of the state’s attorney’s office either by a handoff or by a loan. An issue that I’m after, the question that I am posing, is whether the records of the New Haven police department that Lt. Norwood has said comprise some 10 or 12 binders which he says have been made available to the state’s attorney’s office have so far as he knows been made available in whole or in part been made available by the state’s attorney’s office, which may very well for these purposes be acting as the agent of the New Haven police department to private investigator Rosenzweig. That’s the question that I’m asking. And that’s a very fundamental issue of law that is being posed by Mr. Clark whether these records can be…If I may…
JC: Sorry, I just don’t know when you’re done.
RE: I’ll let you know by nudging you if you’d like. Whether these records can be transformed into his records simply by the New Haven police department either Xeroxing copies of… making, allowing him to look at them…
BH: Why don’t you…
RE: And that’s what I asked. That was the question I asked.
BH: I understand …
JC: Can I respond to that because that’s not my claim at all?
BH: I think that’s into argument, a part of your argument. Again…
JC: With all due respect…
BH: …if you want to address that in your summation…
JC: Because it’s on the record here I’d just like to say two things, very briefly. One, I’m not claiming any of these records are exempt because they have been or not been given to the state’s attorney’s office. There is nothing that says that if you hand us a record it becomes our record as opposed to the police department’s record, so that claim isn’t here. My claim is that questions about what the state’s attorney’s office has or has not done are irrelevant to a proceeding involving the New Haven police department. That’s my claim.
BH: OK, and your question…
RE: And my question is because I view the role of the state’s attorney’s office as described, in getting these records, as becoming the agent of the city of New Haven police department, whether he knows, whether his agent the state’s attorney’s office has made available either by showing, by allowing him to copy, to read or otherwise, any of the records Mr. Gura is seeking, any of the records in the 10-12 binders to Mr. Rosenzweig…
BH: And how is that helpful to the commission at this time?
RE: It’s helpful because if a private investigator hired by Yale who is not cloaked with any state’s attorney’s privilege or any other privilege, he is a private investigator, he isn’t even a public agency within the meaning of the FOI case. If he has been allowed to see any of these documents then clearly Mr. Gura, a fellow member of the public, a fellow private citizen…
BH: OK, let’s give him an opportunity… ask him the question again. Do you still have an objection?
JC: I have an objection because it’s irrelevant. It is only relevant what the police department of the city of New Haven, which is a public agency, has done. This division of criminal justice is not a public agency.
BH: I’m going to request that the witness answer the question as I believe that that would be helpful to the commission.
JC: I’m going to direct the witness not to answer the question.
BH: OK, can we proceed? I’ll just…
RE: Excuse me Commissioner. He has a) no right to direct any witness, even his own to not answer. It’s not his client.
BH: To the extent that he…
RE: And the witness can say to heck with you Mr. Clark, I ought to answer that question.
BH: Counsel, I’m gonna allow it. I’m not going to require him to answer that. Again, the commission will makes its decision based on the record and the record will reflect that the hearing officer requested that it would be helpful and that the witness did not choose to respond. So let’s move on.
RE: Will it also reflect that counsel directed him not to?
BH: Yep, we’re on tape.
RE: Fine.
BH: Go ahead.
RE: Has the police department in New Haven communicated to anyone -- Mr. Gura, Mr. Mitchell, or anyone else -- that it will not, contrary to what Mayor Destefano said, allow Mr. Rosenzweig to see any of these records?
JC: I didn't understand the question.
RE: I don't care whether you understand. It's up to him.
JC: I'm objecting to the question because I think it is vague and convoluted enough that the answer would not be helpful to the commission.
BH: Well I'm kind of lost as to the question.
RE: OK, let me rephrase it so that even Mr. Clark can understand.
JC: I object to that and ask that it be stricken from the record. Mr. Elliot has been engaged in that kind of puerile commentary since he got here and I think it's highly unprofessional and unnecessary.
BH: Mr. Elliot I'm going to ask you to refrain from...
RE: ...puerile comments. Lieutenant Norwood, to your knowledge, has the New Haven police department or anyone in authority told Mayor Destefano that the files that we are talking about here will not be made available to Mr. Rosenzweig... to your knowledge.
LN: I can only account for my own actions.
RE: To your knowledge, has anyone done that?
NH: He's answered the question.
RE: I'm not asking for an accounting, I'm asking whether he knows.
BH: To your knowledge. Do you have...
LN: No.
BH: OK
RE: You have no knowledge that anything like that has been said to Mayor Destefano?
LN: No.
RE: To your knowledge, has the New Haven police department or anyone in authority said to anyone else that the files we are talking about here will not be made available to Mr. Rosenzweig?
JC: I object to the compound question. "Anyone in authority" is far too vague for me to know what he's talking about. If he limits to the police department I'll withdraw my objection.
RE: With anyone in authority in the police department?
JC: Oh, all right. That's limited.
RE: I think he understood that.
JC: Well, the record is the record.
BH: Are you with us Lieutenant?
LN: Yes, ma’am
BH: OK. Do you want to answer?
LN: To my knowledge... the answer is no.
RE: No, you don't know or no, no one has ever said that?
LN: No, I do not know that, to my knowledge.
RE: Let me ask the question differently. Has anyone ever said that?
JC: Said what?
RE: That we are not going to show the files we are talking about here to anyone else?
LN: Anyone ever said to anyone?
RE: Has anyone in the police department, anyone in authority in the police department, said that to anyone else?
JC: I'm sorry, there are so many "thats"... this's and thats… I object to it as being a completely vague question.
RE: I'm going to object to constant counsels puerile objections which he's been making ever since this hearing began. The witness seems to understand
BH: I'm not sure where exactly you're going with the question. Why is what you're asking important or helpful to the commission in figuring out whether the records are exempt or not?
RE: Well, whether or not the records are exempt there is a waiver by the city police department if they are being shown to private persons but not shown to Mr. Gura, also a private person.
NH: And I think the question is has that happened, not whether or not someone has told someone not to do something.
RE: I think it's highly relevant when the mayor comes out and says we are going to share and the witness is instructed not to answer whether the state's attorney's office to whom the records have been made available have shared. I think it's highly relevant to know whether the police department has said to the mayor -- and he's answered that question -- or to anyone else, like Mr. R, we are not going to share.
BH: Then why don't you ask him specifically about the private investigator...
RE: That's what I'm asking...
BH: As opposed to just anyone.
JH: It's not what counsel asked. It may be what he intends to ask. But it isn't what he asked.
RE: Let me ask you...
BH: Yes, so we can move on please.
RE: Lt. Norwood, has the New Haven police department or anyone in authority at the New Haven police department told anyone that the New Haven police department will not make available the documents Mr. Gura wants to see?
NH: Again, I believe the record reflects that we’ve asked Lt. Norwood whether in fact the New Haven police department has released or turned over any documents to Mr. Rosenzweig and I believe that the record will reflect the answer is no. I really don't see the relevance of counsel's question whether or not someone was told something.
RE: The fact of the matter is that the mayor is on record as saying we are going to make them available and I am asking whether the people who have the records have said no we are not.
BH: I have to agree with counsel, that specific piece of information I don’t think is particularly helpful to whether or not the exemption that is being claimed applies. I understand it may or goes to the argument of waiver or who else may have access but at this point I believe what is helpful and what is in the record and is more important to me at this stage is whether or not the records have in fact been turned over to any other individual or entity. So I'm not going to allow that particular question. Do you have any other questions?
RE: No.
BH: OK. All right.
NH: May I just ask..
JM: I have one question. For Lt Norwood.
BH: Come forward Mr. Mitchell. You’ve been so quiet. This is the complainant in 131. You have a question of... go ahead.
JM: The tone of the December 5th article was that there would be a "spirit of cooperation" with the private investigator Mr. Rosenzweig. Was that the police department's understanding that there would be a spirit of cooperation at that point in time?
JC: I'll object to what a spirit of cooperation...
JM: Were you committed to working with Mr. Rosenzweig to help him out in his investigation, the "fresh eyes" as was referred to by the mayor. Would that be an accurate statement that you were willing at that time to wok with Mr. Rosenzweig to help him with his investigation?
LN: We were committed to the investigation with the State's Attorney's office.
JM: So it's not accurate to say that you were willing to work with Mr. Rosenzweig?
NH: Let me ask a few questions. Perhaps I can clear something up here...
BH: No, I think it's a fair question. I'll allow him if he can answer.
LN: Could you just repeat the question for me?
BH: Were you prepared to work with the...
JM: The implication was that the police would be working with Mr. Rosenzweig as a pair of fresh eyes and I'm wondering if that was an accurate sort of implication or the feeling of the police depart at the time the article was written.
NH: I'm going to object to the phrasing of that question. He says the implication was that the police department would be working with Mr. Rosenzweig.
JM: I can read the exact quotation.
NH: I believe the article was about a statement made by the mayor. The police department was not there to comment. The conversation was with the mayor and not the police department.
BH: Since we have the benefit of the individual who is supervising, I'm going to allow him to ask the question. And if you can lieutenant, can you answer?
LN: The answer remains the same, that we are committed to the investigation through the state’s attorney's office. We're working jointly with the state's attorney's office.
JM: When you read the mayor's comment, would you say that accurately reflected what the police department felt at the time that you were indeed willing to work with this private detective on this murder case?
LN: My opinion about the mayor's comment, that's what you're asking me?
JM: Yes. Was there indeed... did he accurately reflect a spirit of cooperation between you and this private detective? (pause) Or did you never intend to work at all with this private detective?
LN: As I've stated, we are working with the state's attorney's office.
JM: Have you had any dealings... did Mr. Rosenzweig have any dealings with anybody at the New Haven police department regarding this case?
JC: All this is so vague, we're talking about documents here.
BH: No, I think his last question was pretty specific to the extent that you can address that.
JC: Well "any dealings at all" is what my problem is. It's such a vague phrase.
BH: Any dealings concerning...
JC: Concerning records, as long as that's clear because sometimes the record does not reflect the same assumptions the hearing officer is clearly making incorrectly, but the record does not reflect that we are talking about items subject to disclosure here. You can cooperate with people without disclosing any of the items.
JM: That's what we're trying to find out...
BH: That's my feeling, if the police department or the state's attorney’s office ... I don't know how you guys run your show, guys and girls, to the extent that there is cooperation, collaboration, to my mind that seems like something that could happen. It doesn't necessarily mean that it's going to lead the commission to make a particular kind of conclusion and I'll leave it at that. Do you want to try one last time because you're going around in circles. You're asking him specifically about this PI and his response is...
JM: It's a very simple question. Has Andy Rosenzweig talked to any New Haven police department detectives or officers specifically about this case?
BH: Can you respond to that?
LN: Yes.
BH: OK, the answer is yes.
JM: And in talking were any documents either given to him or read to him or I can even broadly ask what was the nature of the information given?
JC: I object to the broad one. The more narrow one was not a bad question but what was the information is getting into the information that may be...
JM: Was all information given to him of an oral nature?
LN: Yes.
JM: Was information given to him read from written records or all from memory?
JC: I object to the last part of the question. The answer was no to the first half until we had "all from memory." He's making an assumption.
BH: Where are you going with this Jeff because I think I understood...
JM: Because sometimes what the police will do or anybody will do is...
JC: I object to sometimes what a lay person from the investment field…
RE: I'm going to object. He's answering her question...
BH: Yes he is. Let me just hear...
RE: She's the attorney, the hearing officer. You wouldn't do that in court.
BH: Then I'll allow you to respond...
JM: There are technicalities. I could read from this, or I can give you a copy of this...
BH: I believe his response was to your last question, well not you're very last one, the one before that the communications were oral. Then you went to...
JM: I got "yes" there were oral communications and I got "no" they never gave him any documents. That would be accurate?
BH: Yes, I believe that...
JM: My further question was had they read from any documents and you're saying "no" you never quoted or read from any documents to Mr. Rosenzweig.
LN: I didn't have a chance to answer that question.
JM: OK, then that's my question.
BH: OK, what's your response?
LN: Ask me the question please.
JM: Did you read from any documents to Mr. Rosenzweig?
LN: No.
JM: So, basically to clarify, all the information that you imparted to Mr. Rosenzweig was from memory?
JC: I'll object to that. It's irrelevant to this proceeding and it's an assumption that was not based upon any statement that has been made in this hearing.
BH: Well I think he's trying to clarify the Lieutenant's statements that nothing from any documents… so is he correct and accurate in suggesting that the information that passed to the private investigator was from memory or summary what was contained in your records?
JC: See that's the problem with that question.
RE: Let me just clarify. He never said that the police never gave Mr. Rosenzweig anything. He never said that the police didn't read anything to Mr. Rosenzweig. The question was, did *you*?
BH: I think we're going a little too far afield for my purposes. Again, I was willing to allow somebody to, but this back and forth, I don't see how it's particularly helpful since the commission is going to review the documents.
JM: I have one more...
BH: If it's along those lines I'm not going to allow it.
JM: Is there a written record of the dealings between Mr. Rosenzweig and the police department?
LN: No.
NH: I'd like to just ask a few questions of Lt. Norwood.
BH: OK, I'll allow you two questions. And then move to summary please.
NH: In terms of the mayor and the police, the chief of police, who do you take directions?
LN: The Chief of Police.
NH: And is the Chief of Police responsible for conducting investigations into crimes?
LN: He's responsible for the entire police department.
NH: Does the mayor direct the chief on how to conduct investigations?
LN: Not to my knowledge, no.
[edit]
RE: The assistant corporation counsel asked you about the
mayor. The mayor, is he not the chief elected official of New Haven?
LN: That's correct.
RE: And as such he is the chief executive officer of New Haven, correct?
LN: Yes.
RE: A question was asked to you about Mr. Rosenzweig. Is it not a fact that when Mr. R is working in New Haven he works out of the police department?
LN: Is it not a fact that...
RE: …he works out of the police department when he is in
New Haven. He is allowed to use that as his office?
LN: That is not a fact.
RE: It is not a fact?
LN: No.
Re: Where does he work?
LN: He has his own office.
RE: Where?
LN: Andy Rosenzweig lives in Rhode Island.
RE: When he is New Haven I said.
LN: When he is in New Haven he visits the New Haven police
department and the state's attorney's office.
RE: And where is his office?
LN: Excuse me?
RE: Where does he work out of?
LN: Rhode Island.
RE: Where does he base his activities when he is in New Haven?
LN: He does not have an office in the New Haven police department. That's the answer to your question.
RE: I did not ask if he had an office there. I asked if he worked out of the New Haven police department.
JC: Then I object to the question.
RE: Is he allowed to use the facilities of the New Haven police department when he is in New Haven?
JC: I'll withdraw it.
RE: He's hoping you'll sustain his objection.
BH: The objection he says was withdrawn.
JC: I'll withdraw it when he's asked, when it's specific, as opposed to "where does he work out of" which is a pretty vague phrase.
RE: Actually it isn't. Do you understand the question... that Mr. Clark likes?
JC: Object. It continues. Mr. Elliot simply can not resist and I would ask the court, the hearing officer, again to direct him to address the witness, ask the question, and keep his little asides to himself. It's so infantile.
BH: OK, again, we are almost there. You don't understand Mr. Elliot's question?
LN: I'm just lost on the last part of the question that's all.
BH: Let's try it one last time.
RE: When Mr. Rosenzweig is in New Haven, does he use the facilities of the New Haven police department?
LN: Could you clarify facilities?
RE: Desks, tables, pieces of paper, pencils, any of the above.
LN: Yes we have allowed him that liberty.
RE: I can't hear...
LN: Yes, we have allowed him to use desks and tables to sit down.
RE: …and chairs?
LN: Yes sir.
Re: That's it.
JC: Can I follow that up now?
BH: OK
JC: Is he allowed police department telephones for his calls concerning this investigation?
LN: Yes.
JC: Does he however have his own phone which he uses routinely?
LN: Yes.
JC: Do you know whether or not he has an office at Yale University who, is as I understand it, his employer?
LN: Yes.
[edit]
BH: Could I get a sense of when the records could be submitted to the commission? Can I suggest two weeks?
JC: If I could intervene for just a second. If in fact, as I understand the regulations, they are going to have to list every single document on a form, correct? Because that's going to take more than two weeks given manpower at the police department.
BH: She's done this before, so I think she might be able to assist...
NH: I've done this before. I will know how to list the records so that's its acceptable to the commission.
[edit]
RE: A question for you. There are, according to Lt Norwood ,10 to 12 binders of information. Is it my understanding that the matter that's being submitted is everything that we have sought that has been denied us?
BH: Are you submitting the complete file?
LN: Yes.
BH: All the records that are at issue.
LN: If that's what you are requesting.
BH: Right.
LN: OK.
RE: The reason I ask that is it may very well be that counsel or the police department in compiling this may very well say about document #1 Oh there's nothing here we care about disclosing.
NH: Absolutely not.
RE: I'm just asking that question because if, what I want to know when I get that list is if that will contain a description by counsel of every document?
BH: I expect that it will. It's a complete accounting for all the records and pages being submitted to the commission and are being claimed as exempt.
RE: Yes, because I'd like to know will there be, you see we don't know what the… let's say that the 10-12 binders contain 100 documents. Her list will contain 75 documents. That means there may be 25 documents as to which they say on second thought we don't claim have any claim of exemption as to this. How will we know there are these 25 documents or not when we don’t know what the 100 documents are. But if she's saying that trust me I'm going to claim it as to every piece of paper in that file then...
BH: Is that the claim.
NH: I can not respond in advance to his queries.
Etc. |
