Re: 2/5/02 - City of New Haven: Brief of Respondent in Anticipation of Hearing on Proposed Final Decision of Second Hearing Officer (Part 1 of 2)
FREEDOM OF INFORMATION COMMISSION
STATE OF CONNECTICUT
IN THE MATTER OF
A COMPLAINT BY
JEFFREY MITCHELL
Complainant
AND
GURA, LES AND
THE HARTFORD COURANT
Complainant
VS.
CHIEF, POLICE DEPARTMENT
CITY OF NEW HAVEN
Respondent
FIC 2001-131
FIC 2001-147
FEBRUARY 5, 2002
BRIEF OF RESPONDENT
IN ANTICIPATION OF HEARING ON PROPOSED FINAL DECISION
OF SECOND HEARING OFFICER
The Complainants sought from the Chief of Police of the New Haven Department of Police Services
"the '911' call made on Friday, December 4, 1998 in connection with the discovery of the body of Yale University student Suzanne Jovin," and
"all information provided to Andrew Rosenzweig, a private investigator not in the employ of the New Haven Police Department."
The Proposed Final Decision states that "[a]t the hearing on this matter, it was clarified that the records to which the complainant referred… [in the second part of the foregoing identified request] were all of the additional records complied in connection with the Suzanne Jovin investigation and that the respondent understood that to be the nature of the request, notwithstanding the respondent's claim that he had not provided records to Andrew Rosenzweig. Therefore, the records at issue in this matter are copies of the "911” call and any other records compiled in the Suzanne Jovin investigation.”
At issue are Freedom of Information Act exemptions C.G.S. Secs. 1-210(b)(3)(A) and 1-210(b)(3)(C), which provide, in relevant part, as follows:
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... (C) information to be used in a prospective law enforcement action if prejudicial to such action…
The records were reviewed in camera.
We acknowledge the deficiencies in the manner in which representatives of Respondent provided the in camera submissions and itemized those portions claimed subject to exemption, a matter which Respondent and his attorneys take very seriously and for which corrective measures have been initiated in order to avoid similar deficiencies in the future.
The recommended order of the Proposed Final Decision emphasizes, in part, at paragraph 4, the Commission's "displeasure with the respondent's decision in this case to claim a blanket exemption to disclosure and then simply unload the thousands of pages of in camera records on the Commission for it to review and determine which, if any, are exempt."
The Respondent and the attorneys in the Office of Corporation Counsel representing the Respondent take such criticism most seriously and are initiating corrective measures in order to avoid a repetition of such an insufficiencies in the future. [1]
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[1] While it is not sufficient excuse for the noted insufficiencies, the undersigned has been advised that the documents were literally delivered to the attorneys relatively shortly prior to the delivery of the documents to the Commission and the remaining time before actual delivery was devoted to "Bate" stamping the documents. The Office of Corporation Counsel did not even take the time to make its own copies of the documents after the "Bate" stamps were added.
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We also appreciate that, despite that legitimate criticism, the Proposed Final Decision attempts to retain a dispassionate view of the sensitivity of the records at issue and that therefore a portion of the recommended Order [paragraph 1] would still permit the respondent to redact any information contained in the requested records that would reveal, either directly or indirectly, the identity of informants not otherwise not known, or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known, within the meaning Sec. 1-210(b)(3)(A), G.S., ..., and any signed statements of witnesses, within the meaning of Sec. 1-210(b)(3)(B), G.S.
We take that permission to still conduct certain redacting as a recognition of legitimate law enforcement interests at stake as well as of the difficulty of executing what the Proposed Final Decision recognizes as "the difficult job of balancing the public's right to know against the need to maintain the integrity of [Respondent's] department's investigations" [paragraph 4 of the recommended Order]. Such difficulty is of course further complicated when we are dealing, as in this instance, with an open and ongoing investigation, involving thousands of pages of documents.
Respondent must and does still contest those portions of the Proposed Final Order that (1) dispute the accuracy of respondent's witness. and {2) rejects in its entirety respondent's claim that disclosure of the remaining records at issue would be prejudicial to a prospective law enforcement action [Proposed Finding 20.1].
The Commissioner's decision to discredit the testimony of our key witness [Proposed Final Decision, paragraph 20] due to a brief letter written by another person is not supported by the evidence.
Proposed Finding Number 20 states as follows:
"It is further found that the testimony of the respondent's sole witness with respect to whether the requested records had been disclosed to certain third parties by the respondent is not accurate. In camera document IC-III, pages 2001-131/147-2501 and 2502, clearly contradicts such testimony. Consequently, the Commission finds the testimony of such witness not credible and the claim that disclosure of the remaining records at issue would be prejudicial to a prospective law enforcement action implausible."
It is of course particularly difficult to address that proposed Finding without at least in some limited way addressing the general nature and some limited portions of the contents of that document, but the undersigned has no choice but to attempt to do so and believes that it can be done in a manner that will not compromise the confidentiality of the document, particularly since the Proposed Finding defines the issue as whether disclosure had been made to "certain third parties by the respondent."
In order to adequately address this most important proposed Finding the undersigned was newly appointed to this case to handle this stage of the proceedings and, in effect, to independently question and review the representations of our witness at the FOI hearing, the author of in camera document IC-III, pages 2001-131/147-2501 and 2502 (who is distinct from the witness at the FOI hearing), and even our own attorney.
The document at issue is a letter from a senior New Haven law enforcement official to a senior law enforcement official in another police department requesting the assistance of that other law enforcement department with regard to a matter requiring certain expertise. By way of background the letter indicates that the referral to the other law enforcement department had been made by former high ranking members of that other law enforcement department. Also by way of background the letter indicated that those former high ranking members of law enforcement had been referred to the City and had requested cooperation in allowing them to review the Jovin homicide investigation files, and to discuss the investigation with certain of the City's investigators. The letter also states that such persons "have been granted full and complete cooperation, with the understanding that our goal is the successful resolution of this case.”
That reference to "[f]ull and complete cooperation" does not justify the wholesale rejection of the credibility of the material statements of the Respondent's witness.
Rather, at most, that reference might raise grounds for further inquiry.
First, the undersigned is advised that the Commissioner who prepared the Proposed Final Decision was not present at the hearing at which the witness testified.
The most fundamental principles relating to credibility recognize that the demeanor and tenor of the witness are crucial factors to evaluating credibility. This was simply unknown to the drafter of the Proposed Final Decision.
Moreover, the undersigned is advised that the Hearing Officer/Attorney who drafted the earlier Proposed Decision was present, and she credited the testimony of the witness and also had the benefit of reviewing the records in camera which she found to be properly withheld
Second, the most fundamental concepts of challenging credibility require that a person claimed to be impeached by a document be permitted to examine it and respond, potentially explaining any apparent inconsistency. Our witness was not so confronted with this document. To the extent this lack of confrontation was due to the late disclosure of the document we again accept the criticism of the Proposed Final Decision but believe that the interests of justice, the legitimate interests of law enforcement, the reputation of the witness, and the concern of all for a full and fair determination of this FOI controversy and the ultimate capture and conviction of the murderer justifies remanding the matter for further hearing and recalling that witness to testify about the document.
Third, for the same reasons discussed in the foregoing paragraph we ask for a remand to call the author of the document to more fully explain the circumstances of that letter. Even had in camera submission been sooner it is entirely possible that this office would not have recognized the potential significance of the document and not have had the author of the letter present to testify.
Fourth, even though the usual length of an FOI hearing is, I am advised, strictly limited, I am also advised that in appropriate instances additional time can be granted. Given the thousands of pages of documents at issue in this case and the permission of even the Proposed Final Order that Respondent be permitted to redact documents to at least a limited extent, we believe the opportunity to revisit the documents and further redact them beyond the limited manner in which the Proposed Final Decision would permit is appropriate.
Fifth, what the former members of the other law enforcement agency apparently requested (i.e., to review files and to discuss the investigation with New Haven police officials) need not (and in fact does not) mean that granting them "full and complete cooperation" included allowing them to actually review records or even know the substance of all records.
"[F]ull and complete cooperation" is simply too ambiguous a phrase to upon which to base a conclusion that one should reject particularly the credibility of a person who did not prepare the document, or indeed, even of the person who did prepare the document
Thus, one definition of the word "cooperation" is "[t]he association of a number of persons for their common benefit; collective action in the pursuit of common well-being…" Webster's New International Dictionary, Second Edition, Unabridged, G. & C. Merriam Company, Vol. I, page 585 (1955).
Indeed, the phrase in the same sentence and immediately following that reference to "full and complete cooperation" states "with the understanding that our mutual goal is the successful resolution of this case."
Thus, merely because there is "cooperation," even "full and complete" cooperation in the pursuit of the same desired end, does not necessarily mean that every item of information or every or even any item of evidence has been shared. For example, it would be naïve to believe that the United States has shared all our relevant intelligence information with each and everyone of our many allies in the current conflict in Afghanistan (or even with any single one of our allies), even though more broadly worded public statements of cooperation serve legitimate interests
In the instance at issue in this FOI case the reference to "full and complete cooperation" with former senior officials of the other law enforcement agency whose facilities the author of the letter is seeking serves the legitimate interest in fostering the hoped for cooperation of that other law enforcement agency.
The explanations offered by the Respondent's witness are not inadequate to support the claimed exemption.
The nature of the evidence and extent of justification to support an asserted exemption logically must vary with the particular exemption asserted.
Thus, in most instances it will be rather simple to determine whether or not a person's identity might be disclosed by simply seeing if that person's name or other identifying information (address, employment title, or social security number) is among the information to be disclosed. On the otherhand, whether a person's identity might be disclosed indirectly in the context with other circumstantial information might be more difficult but the claim might be just as legitimate, justifies examination of the more circumstantial evidence, and also justifies deference to the expertise of the agency asserting the exemption.
Whether information "would be prejudicial to a prospective law enforcement action" requires much more deference to law enforcement officers and their expertise, and they in turn are required to rely in substantial part on the judgment of prosecutors who are assigned to the more serious cases.
The judgment as to whether release of information would be prejudicial requires almost a "crystal ball," i.e., a degree of speculation, albeit informed and reasonable speculation, as to what will be significant in the future when other evidence may have been developed, other leads may have been developed when new and more refined scientific testing may be available, when a final suspect has been identified and formally charged, and when the defense for such a person charged may have offered claims such as an alibi. [2]
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[2] One scholarly treatise on the similar federal Freedom of Information Act exemption from disclosure of law enforcement investigatory records which "would… interfere with enforcement proceedings" recounts legislative history and early judicial rulings that indicate the legislative intent that the types of interference to be avoided by exempting disclosure "include prematurely revealing the substance, scope, and direction of an investigation, witness intimidation or a 'chilling effect' on potential witnesses, permitting construction of alibis or tampering with evidence, and making it difficult for the agency to get similar information in the future." B. A. Braverman, F. J. Chetwynd, Information Law, Practicing Law Institute (1985), Vol. I, Section 11-5.2 (footnotes and citations omitted, emphasis added). (We emphasis "include" since that choice of wording does not preclude other potential forms of interference in addition to the brief summary included in the text cited.)
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Additionally, such a judgment by police officials must take into consideration what will be significant to a prosecutor in the future, and calling a current or prospective prosecutor to testify in a pending criminal investigation (or even a pending prosecution) would open a "pandora's box" and giving unjustified advantages to a potential suspect or defendant. That is why courts are extremely reluctant to allow prosecutor's to be called to testify in any proceedings related to criminal charges. See discussion in Ullmann v. State of Connecticut, 230 Conn. 698, 716, 647 A.2d 324 (1994) regarding the great reluctance to require an attorney to testify in a criminal case in which he has been at some point an advocate even after charges have been brought and the attorney's testimony may otherwise have relevance. It would be even more inappropriate to call such an attorney to speculate about a pending criminal investigation in which he is or might be involved, risking exposure of alternative theories of the crime and prosecution as well as potential leads and evidence and the perceived strength or weaknesses of the investigation.
Moreover, even such a prosecutor would have to speculate about what will be significant at some future date when when other evidence may have been developed, other leads may have been developed, when new and more refined scientific testing may be available, when a final suspect has been identified and formally charged, and when the defense for such a person charged may have offered claims such as an alibi. The very factors about which we are concerned have been held to constitute standing to challenge the release of criminal investigatory files under the Connecticut Freedom of Information Act. Kelly v. Freedom of Information Commission, 221 Conn. 300, 312, 603 A.2d 1131 (1992).
Of particular importance in making such an evaluation is that the investigating police and even the prospective prosecutor cannot know what seemingly innocuous undisclosed information could be of significant benefit to the murderer (in avoiding identification and capture, or in ultimately presenting a defense) when considered in context with information currently known to the murderer but not to law enforcement.
In fact, this latter factor of what is known and not known to the murderer could become significant in later confirming that a particular suspect is or is not the actual murderer since the actual murderer may be privy to some information known to law enforcement but not publicly disclosed or at least not publicly disclosed in a particular manner. In otherwords, when law enforcement knows some precise particular and that is not public, or is public only in some general manner and not precisely, law enforcement can be more confident in its ultimately arresting and charging an individual with the murder if that individual also knows the same matter and with the same precision as law enforcement.
All the foregoing would seem to be common sense.
The FOI exemption at issue has been characterized in other circumstances as the "law enforcement investigatory privilege," which privilege "is largely incorporated into the various state and federal freedom of information acts." In Re Department of Investigation of the City of New York, 856 F.2d 481, 483-84 (2d Cir. 1988) (footnotes omitted).
...The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.
Id., 856 F.2d at 484 (citations omitted).
The Federal Freedom of Information Act cited by the Court in In Re Department of Investigation of the City of New York, 856 F.2d at 483-84 n. 2 also provides an exemption for such records or information to the extent disclosure "would reasonably be expected to interfere with enforcement proceedings."
Indeed, it is a privilege that extends not only to documents from law enforcement investigatory files but also to testimony about the contents of such documents.
...It makes little sense to protect the actual files from disclosure while forcing the government to testify about their contents. The public interest in safeguarding the integrity of on-going civil and criminal investigations is the same in both situations. The privilege may be asserted to protect testimony about or other disclosure of the contents of law enforcement investigatory files.
In Re Sealed Case, 856 F.2d 268,271 (D.C.Cir. 1988).
One of the more frequently quoted judicial officers concluded, in discussing the "law enforcement investigatory privilege" set forth in the Federal Freedom of Information Act, that
...It seems to us, …, and not only to us, that there ought to be a pretty strong presumption against lifting the privilege. ...Otherwise the courts will be thrust too deeply into the criminal investigative process. ...
Dellwood Farms. Inc. v. Cargill. Inc., 128 F.3d 1122, 1125 (7th Cir. 1997) (Chief Judge Posner, speaking for a unanimous panel) (citing Black v. Sheraton Corporation of America, 564 F.2d 531, 545-47 (D.C.Cir. 1977). [3]
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[3] Newspaper reports regarding the Jovin murder investigation indicate that one of the claimants in this FOI request is a friend of and actively attempting to clear that friend who has been mentioned in the media as a possible suspect. In fact, that person mentioned in the media as a possible suspect has already filed a lawsuit against the City and various police investigators claiming, among other misdeeds, an improper investigation. James Van Velde v. Melvin Wearing. et al., U. S. District Court, District of Connecticut, Docket No. 3:01 CV2296 (RNC).
Of course, such individuals have as much right to know information properly available to the general public pursuant to an FOI request or otherwise. But their interest in expediting such litigation has been rejected as taking precedence over the interests of law enforcement. Dellwood Farms. Inc. v. Cargill. Inc., 128 F.3d 1122, 1125, Rehearing and Suggestion for Rehearing En Banc Denied (7th Cir. 1997). The Opinion for the Court was written by the oft quoted Chief Judge Posner.
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