Re: 2/5/02 - City of New Haven: Brief of Respondent in Anticipation of Hearing on Proposed Final Decision of Second Hearing Officer (Part 2 of 2)
That the drafter of the Proposed Final Order has concluded that "much of the information" entered the "public domain" does not justify disclosure in this instance.
The drafter of the Proposed Final Decision concluded, in part, that "it is found that much of the information contained in such records, excluding the information described in paragraphs 13 and 14 [of the Proposed Final Decision], above, [and concerning certain informants and witnesses] has already entered the public domain, as evidenced by the numerous newspaper and internet articles contained in the in camera records that were not claimed to be exempt by respondent, as described in paragraph 10 [of the Proposed Final Decision], above, and the additional published articles contained in IC-III, as described in paragraph 12, above…). [Proposed Final Decision, paragraph 17 (bracketed portions added).]
However, that "much of the information" may be in the public domain in some form logically cannot mean that necessarily all of the information is in the public domain, and, more importantly, cannot offset the justified law enforcement concern with the manner that something is stated in the public domain.
As we have already noted, of particular importance in making an evaluation of whether or not an item in the public domain in a particular format may prejudice an eventual arrest or the eventual prosecution is that the investigating police and even the prospective prosecutor cannot know what seemingly innocuous as yet 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.
Again, 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.
Moreover, a statement in the media is pure hearsay and mayor may not be accurate in its entirety or in any particular part. Law enforcement officials are not required to confirm or deny such hearsay allegations, both because to do so would give them added credence and, more importantly, because if they deny was published assertion, even if wrong, it may be presumed by readers that other assertions they do not deny are necessarily true. This is a "damned if they do, and damned if they don't" situation for any official and is the reason officials often decline to either affirm or deny.
We respectfully urge that the testimony of Respondent's witness as to the potential significance of disclosure was sufficient; but if deemed not sufficient we respectfully ask for the opportunity that the matter be reopened to supplement the record, as indicated below.
The drafter of the Proposed Final Decision concluded, in part, that as to the "remaining records"
- '[t]he respondent... failed to demonstrate how disclosure of such information would be prejudicial to any prospective law enforcement action [and instead] "simply claimed, without any supporting evidence or specific circumstances, that: the investigation was "ongoing;" any release of the records at issue could possibly prejudice a jury and 'the prosecution of the possible suspect in the case;' and would also 'create a depiction of the facts and circumstances to the public that may not be true,"' [paragraph 18],
- '[t]he respondent also made reference to certain hypothetical situations under which disclosure of certain kinds of information would be prejudicial to a prospective law enforcement action, but failed to explain why disclosure of any of the records at issue would be prejudicial in this case," [paragraph 18].
First, hypothetical examples are very relevant, material and significant. If not given significance the Respondent would be effectively required to disclose, even inadvertently, at least some of the very information and investigative leads and strategies in the particular murder investigation at issue.
Second, we respectfully urge that the testimony of the witness was far more detailed and explanatory than as characterized.
The witness answered every question and to the satisfaction of the Hearing Officer who could assess his demeanor and tenor. Had the Hearing Officer believed that the in camera submissions raised additional questions should could have initiated an additional hearing, as we suggest should be the next step in order to respond to the concerns of the drafter of the Proposed Final Decision.
Third, as indicated below, we are prepared to offer a much more comprehensive articulation by Respondent which the Proposed Final Decision proferred as appropriate to the circumstances.
The sweeping proposal of the Proposed Final Decision, if without a further opportunity to more appropriately redact documents and index our justifications for nondisclosure, that would result in the disclosure of almost all of the file also would necessarily run contrary to prior interpretations of the Connecticut Courts concerning application of the Connecticut Freedom of Information Act to law enforcement investigatory records.
The State Courts have already ruled that many law enforcement investigatory records need not be released. Gifford v. Freedom of Information Commission, 227 Conn. 641,631 A.2d 252 (1993); Bona v. Freedom of Information Commission, et al., 44 Conn.App. 622, 691 A.2d 1 (1997).
The sweeping Proposed Final Decision would substantially eviscerate those rulings.
Also, the more precise indexing and redaction that the Proposed Final Decision contemplates and that we are prepared to undertake make well focus Respondent and the Commission on other, conceivably more narrow, exemptions under the State FOI than we have previously relied on and which may be more acceptable to both the Commission and the complainants.
Permitting such further redaction, indexing and explanation is not inconsistent with the principles enunciated in Department of Public Safety, Division of State Police v. Freedom of Information Commission, et al., 51 Conn.App. 100, 720 A.2d 268 (1998).
The manner in which we are prepared to improve disclosure and support our claimed exemption is consistent with the concerns expressed by the Proposed Final Decision, and we respectfully ask the Commission for the opportunity to do so.
The judgments that need to be made as to the potential for prejudicing both the criminal investigation and an ultimate prosecution are much like the judgments that must be made in evaluating federal Freedom of Information Act requests for documents related to national security, where such information was often acquired in the course of a criminal investigation. As in such instances, one must speculate, albeit an informed and reasonable speculation but based on specialized training and experience, what seemingly innocuous information would likely be prejudicial if available to some unknown individual already in possession of other related information probably not available to the agency seeking to withhold the documents.
A procedure has been adopted by the federal courts in all federal Freedom of Information Act cases allowing the agency to offer its explanations for exemption in more detail similar to the type of index the Proposed Final Decision in the instant matter contemplates, no doubt carefully crafted by experienced agency personnel with the assistance of their attorneys, which more detailed index can then be evaluated in connection with
(A) those documents which are publicly disclosed,
(B) redactions in the records disclosed, and
(C) an in camera examination by the judiciary .
Such procedure has been applied to all federal agencies, even where national security is not involved, and was actually developed in litigation involving the federal Bureau of Personnel Management. [4]
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[4] Vaughn v. Rosen (I), 157 U.S.App.D.C. 340, 484 F.2d 82-0, rehearing denied (D.C.Cir. 1973), Petition for writ of certiorari denied, sub nom. Rosen v. Vaughn, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d873 (1974); The Herald Company, Inc. v. City of Kalamazoo, 229 Mich.App. 376, 581 N.W.2d 295 (1998).
The Vaughn procedures and guidelines have been applied to all federal agencies, including the Justice Department and the Federal Bureau of Investigation. E.g., Joan Baez v. U. S. Department of Justice (Federal Bureau of Investigation), 208 U.S.App.D.C. 199, 647 F.2d 1328 (D.C.Cir. 1980).
The undersigned was actively involved litigating, on behalf of persons seeking disclosure of such records under the federal Freedom of Information Act, the development and adequacy of such indices. See, for example, Ray, et al. v. Turner, et al., 190 U.S.App.D.C. 290, 587 F.2d 1187, as amended (D.C.Cir. 1978).
Such litigation did begin in an adversarial context and the development of adequate affidavits required extensive refinement over the course of a number of such lawsuits and appeals but the results had the salutary effects of greater disclosure (in many, though not all instances) but also greater respect for the concern and reasoning of the agencies.
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We believe our request for such an opportunity is not unreasonable in the context of (1) the potential for interfering with the solving of a brutal murder and the successful prosecution and punishment of the murderer, (2) the new involvement of the undersigned and therefore the opportunity to bring to bear my own prior experience with respect to disclosing or justifying nondisclosure of highly sensitive records (I was not employed with the Office of the Corporation Counsel when the matter was previously before this Commission and my usual assignment is litigation, but the Corporation Counsel has assured that I will personally participate in such review), and (3) the fact that the Proposed Final Order already contemplates that the Respondent still have the opportunity to redact certain of the records. [5]
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[5] I have been assigned to defend the above-referenced Van de Velde lawsuit so that I must, in any event, familiarize myself with the investigative files
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Lastly, even if the documents hypothetically had been shared with the former high ranking law enforcement officials our exemption would not have been waived or otherwise compromised by doing so.
Even viewed in the light least favorable to the Respondent, in camera document IC-III, pages 2001-131/147-2501 and 2502, to which the Proposed Final Decision gave significance, indicates only certain highly experienced former law enforcement officers whose services were offered to the Respondent "have been granted full and complete cooperation, with the understanding that our goal is the successful resolution of this case.
To assert that such discussions with persons not employed by the Respondent constitutes disclosure or waiver of exemption of the law enforcement investigatory privilege would unduly and unjustifiably cripple modern law enforcement. It would mean, for example, that showing to prospective witnesses photographs of a potential suspect not known to the public would have to be disclosed, prematurely tipping off that suspect. It would mean that utilizing expertise of persons not employed by the Respondent's department or the prosecution would compromise the entire investigatory file. It would mean, for practical purposes, that a criminal investigation must be conducted only "in house" or in the full glare of public scrutiny.
Legislative rejection of such an absurdity is the very essence of the exemption at issue.
Respectfully Submitted,
[signature]
Martin S. Echter
Deputy Corporation Counsel
165 Church Street, 4th Floor
New Haven, CT 06510
Phone: (203) 946-7958
Fax: (203) 946-7942
Juris No. 42715
PAGER: 1-860-590-4432
Certificate of Service
I, Martin S. Echter, hereby certify that I have served the foregoing Brief by causing a copy to be mailed, postage prepaid, respectively to:
Attorney Ralph G. Elliott
Tyler, Cooper & Alcorn
City Place, 35th Floor
Hartford, CT 06103-3488
For Complainants
Les Gura
Hartford Courant
Mr. Jeffrey Mitchell
Pro Se Complainant
54 Easton Road
Westport, CT 06880
Attorney James G. Clark
Assistant States Attorney
234 Church Street, Suite 402
New Haven, CT 06510,
And hand-delivering a copy to:
Attorney Donna Chance Dowdie
Assistant Corporation Counsel
165 Church Street, 4th Floor
New Haven, CT 06510
This 6th day of February, 2002.
[signature]
Martin S. Echter
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Note: This document was scanned and converted to text and should therefore not be used as a substitute for an official copy. |
