By James H. Smith
Virtually every news organization in Connecticut has joined a friend of the court action to the state Supreme Court asking it to overturn a lower court restriction on how much information police must release in a criminal investigation.
At the same time, The News-Times of Danbury, joined by The New York Times, The Washington Post, The Associated Press and Gannett Westchester newspapers are asking a Connecticut Superior Court judge to unseal search warrants and all related court records in the Sandy Hook School massacre. The prosecutor opposes unsealing the warrants even though the shooter is dead and there will be no prosecution.
The continued sealing “appears to be based on nothing more than the fact that the State Attorney’s investigation is ongoing,” but statutes require it be shown that an open investigation “would be adversely affected” by disclosure, the newspapers argued in a Jan. 24 letter to Superior Court Judge John F. Blawie in Danbury.
In the case going to the state Supreme Court, brought by the state’s Freedom of Information Commission, the commission argues that the state Appellate Court misinterpreted Freedom of Information laws in denying that police must disclose information beyond basic blotter data.
The Appellate Court concluded that state law “requires absolutely no disclosure beyond police blotter information and a press release, thereby keeping secret “information of legitimate interest to the public relating to arrests such as the race of the offender, whether unusual force was used in the arrest, whether injuries including hospitalization resulted from the arrest, and other circumstances surrounding the arrest such as political protest, immigrant sweeps, even the identities of the arresting officers,” the FOIC said in its appeal.
The New Haven Register filed the original complaint in 2008 when state police refused to provide copies of any reports on the arrest of a man charged with first-degree assault and attempted murder.
The FOIC, a state agency which hears about 800 cases a year from citizens and news organizations that are denied access to government information, ruled the Register could have the documents but was overruled by both the Superior and Appellate courts.
The non-profit Connecticut Council on Freedom of Information organized the amici curiae brief. Signatories include the Connecticut Daily Newspaper Association, the state radio and television news directors association, The Associated Press, the Connecticut SPJ chapter, the non-profit Connecticut Foundation for Open Government, and the American Civil Liberties Union.
The FOIC is actually stopping short of asking for an order that the information sought be released by the police. Its “modest” request is an acknowledgment that “there is sometimes information of legitimate public interest about an arrest that is not contained in the blotter information and the press release, and law enforcement agencies should be required, not necessarily to disclose this information, but merely to articulate a factual and legal reason for withholding it.”
It cites a 1998 Appellate Court ruling that there must be “an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that disclosure of that information would be prejudicial to that action.”
That’s the point in the Newtown shootings case. How can releasing information held by the police and/or prosecutors be prejudicial if there is to be no prosecution, no case? Judge Blawie has yet to respond to the News-Times request for release of the search warrants of the shooter’s home and cars.
The FOIC’s case to the Supreme Court also hinges on differing interpretations of two sections of the state FOI statutes. The court will hear oral arguments later this year.
James is a retired Connecticut newspaper editor, author of “A Passion for Journalism, A Newspaper Editor Writes to His Readers” and president of the Connecticut Council on Freedom of Information.