Connecticut’s Freedom of Information Act turns 40 years old today, and in honor of that milestone, let’s write about a transparency success story – the tale of an agency that received a request for public documents and actually produced the records with no delays, no phony roadblocks, and even no cost.
This is not a fictionalized fantasy; it really happened, and it involved the City of Hartford Corporation Counsel, which, under prior regimes, was not always so agreeable when it came to giving, to the public, records that belong to the public.
First, some background: On Nov. 14, 2012 a Hartford man named Lamonte Brown was walking with his dog Boomer on South Marshall Street when police officers investigating a noise complaint confronted him and, he says, beat him, shot him with Tasers, and impounded his dog, which was later euthanized.
Those events led to a lawsuit against the officers in federal court and then, in August, to a formal settlement – with Brown agreeing to drop the suit and city officials agreeing to write Brown a check for $7,500. The settlement was later reported by the Associated Press, in a story that included this curious line: “Brown’s lawyer, John Q. Gale, said he couldn’t discuss the case because of a confidentiality agreement.”
Such confidentiality agreements are common in lawsuit settlements. They are also controversial, with a continuing debate over whether the potential benefit of that secrecy (the ability to settle more cases without the fear of inviting more litigation) outweighs the potential harm (keeping the public in the dark about, say, especially dangerous doctors or dangerous products or serial rapists).
But when it comes to public agencies – at least in Connecticut – that debate is mostly muted. Our Freedom of Information Commission – an independent agency that is the jewel of the law turning 40 today – has consistently held that when government officials settle lawsuits, they can’t keep taxpayers in the dark about the terms of the settlement – unless there are special circumstances that compel a a judge to take the extraordinary step of ordering the settlement sealed.
Which brings us back to Lamonte Brown’s case. Continue reading
For all the data analysis conducted by The Courant, no other topic comes close to generating the reader reaction we receive when looking at apparent racial disparities in policing.
That was evident once again this week with the release of fresh police-stop data showing – as previous releases have – that statewide, black and Hispanic motorists are stopped and ticketed at higher rates than white drivers.
That led to a flurry of comments on The Courant’s website – more than 100 at last count – most of which took exception to any implication that police officers might be treating minority drivers more harshly. Some were simply self-disproving diatribes – posts that used overtly racist slurs in arguing that racism was non-existent. But others took aim at the statistical methodology applied, some raising legitimate points, others misinterpreting or making incorrect assumptions about the analysis applied.
So, as we have in the past, here’s a primer on the data collected by the Connecticut Racial Profiling Prohibition Project and on the Courant’s analysis of post-stop behavior, along with responses to the most frequent issues that are raised whenever we dig into this data. Continue reading
It is extraordinarily well-settled law in Connecticut that personnel records related to the official conduct of our civil servants are public records that must – with rare and well-delineated exceptions – be released to members of the public, who employ those civil servants.
And yet, decades after the state Supreme Court resolved any serious question about the obligation of public agencies, the dockets of the Freedom of Information Commission are routinely clogged with cases in which one town or another is trying – through ignorance or willful law-breaking – to keep personnel files secret.
Usually, the arguments are worn and tired, but occasionally an agency will come up with a novel, if misplaced, justification for skirting the law. That’s the case with a complaint brought against the Ansonia Police Department, which refuses to release personnel records for one of its officer. Continue reading
When the Boston Globe sought records related to crashes involving Massachusetts State Police cars, the agency said it would be happy to comply – for a fee of $62,200. The agency was also willing to release a log of public-records requests – for $42,750. And the Staties told a reporter for the Bay State Examiner that he would have to pay a $710.50 “non-refundable research fee” just to find out how much the agency would ultimately charge for copies of internal-affairs documents.
For “habitually going to extraordinary lengths to thwart public records requests, protect law enforcement officers and public officials who violate the law and block efforts to scrutinize how the department performs its duties,” the Massachusetts State Police was named one of four finalists for the Golden Padlock Award, a slightly tongue-in-cheek honor bestowed annually by the journalism organization Investigative Reporters and Editors (IRE).
“It normally takes months or longer to respond to news media FOI requests. Requests for basic documents routinely produce refusals, large portions of blacked out documents or demands for tens of thousands of dollars in unjustified fees,” IRE gushed in announcing the department’s nomination. The news organization also quoted a 2013 story in the Worcester Telegram & Gazette that declared: “The Massachusetts State Police is a habitual offender – verging on a career criminal – when it comes to breaking a state law intended to ensure government is accountable to the people it serves.”
This is the third year IRE has led the hunt for “the most secretive government agency or individual in the United States.” Last year, the award was shared by the U.S. Navy FOI office, which not only stymied efforts by a reporter to obtain information on a shooting spree at the Navy Yard in Washington, D.C., but also accidentally sent the reporter an internal memo outlining the plan to keep records secret; and the governors of Oklahoma and Missouri, who went to extraordinary lengths to keep the public in the dark about problems with prison executions.
Joining the Massachusetts State Police as finalists this year are the Colorado Judicial Branch, which keeps records of its spending and disciplinary actions under wraps; The Texas Department of Public Safety, which tried to block inquiries into the validity of its border-security program; and the U.S. Department of Defense, which has stonewalled efforts to learn more about the massacre of 16 civilians in Afghanistan by an Army staff sergeant.
“There is a unique brand of courage displayed by public officials who deny, delay and circumvent the public’s right to know with a straight-faced sense of duty,” said Robert Cribb, a Toronto Star reporter and chair of IRE’s Golden Padlock committee. “They carry forward a rich tradition of undermining open records laws with ingenuity, commitment and condescension deserving of our acknowledgement.”
The winner will be announced at IRE’s annual conference this weekend.
The fraud case brought against four spectacularly inefficient cancer charities is welcome news to watchdogs who have studied the fleecing of generous donors by unscrupulous nonprofits. But it is only the tip of the iceberg.
Americans donate hundreds of billions of dollars each year to more than 1.5 million tax-exempt organizations. The great majority are legitimate operations. But some – hundreds for sure – are little more than conduits that funnel money to professional fundraising firms while devoting pennies on the dollar to charitable purposes.
And there is often little the government can do about it. Continue reading
Racial and ethnic disparities in policing has long been an uneasy topic in Connecticut and across the country. And that was reflected in reaction to a Sunday story in the Courant reporting that black and Hispanic motorists pulled over for traffic violations were more likely to receive a ticket than were white motorists pulled over for the same offense.
Many commenters and email writers were quick to challenge the findings, advancing a slew of reasons why the data or the analysis was flawed, and confidently assuring that there was a legitimate reason for any disparities in policing. Some raised legitimate questions. Others misunderstood the analysis.
The Courant performed a similar analysis in 2012 – and received a similarly visceral reaction from many readers. So as we did three years ago, here’s an elucidation on a few of the topics raised by readers.
The most common misconception was that the reported disparities simply indicate that black and Hispanic drivers violate traffic laws at higher rates than white motorists. “Could minority drivers commit more motor vehicle violations than non-minority drivers?” one poster asked. “No, this can’t be true. that would be racist.” Continue reading
I recently obtained an internal email in which a lawyer for a public agency laid out the agency’s strategy for responding to a request for records under the Freedom of Information Act.
Step One was identifying the records the agency was willing to release.
Step Two was identifying the records the agency had no intention of releasing.
And then Step Three, almost as an afterthought, was determining whether there was actually an exception under the Freedom of Information Act that would provide a legal basis for keeping the withheld documents secret from the public.
“As we discussed we can always withhold a document even if there is no exception,” the lawyer wrote, with the understanding that the agency might have to concoct a justification for the illegal act if the requester was savvy enough to pursue an appeal to the Freedom of Information Commission.
It wasn’t the first such email I had been made privy to, and it reminded me of the need for vigilance in Freedom of Information matters and the importance of constantly reminding the public servants who work for us that they do, in fact, work for us. They’re paid by us, they’re sworn to serve us. And with rare exceptions, all of the paperwork and data they produce and collect while on our payroll belongs to us, and should be provided to us without a fight.
So as the Legislature gets down to business this week, here’s one transparency advocate’s wish list, for any lawmakers willing to champion the not-so-radical concept that the people’s business really is the people’s business. Continue reading
Joe Bergantino, executive director of the New England Center for Investigative Reporting and a long-time Boston television reporter, was detained in Russia Thursday while conducting a training session for fellow journalists, according to a release from the New England First Amendment Center.
Bergantino and Randy Covington of the University of South Carolina were leading a workshop with Russian journalists when authorities interrupted the session and took the two men away, the release states, citing Beth Daley, a reporter for NECIR who has spoken with Bergantino.
Daley said the men were accused of “teaching an educational workshop illegally because they were using the wrong visas,” according to the release. The men were then taken to a Russian court and ordered to halt the workshop and leave the country.
Bergantino, a former reporter for WBZ-TV and ABC News, co-founded the non-profit New England Center for Investigative Reporting in 2009.
The arrest affidavit detailing the criminal case against Southington teenager Eric Morelli, who unwittingly caused a fatal fire by tossing firecrackers at a friend’s bedroom window, was ordered sealed three different times in the last month and half, until a Superior Court judge lifted the secrecy order late last week after acknowledging there was no good reason to keep the document under wraps.
This happens too often, despite a legal mandate that favors openness in the courts, and clear rules establishing the hurdles that must be cleared and the process that must be followed when judges take what should be the extraordinary step of shutting off public access.
So as a public service, The Scoop would like to publicly remind the state’s judges, prosecutors and defense attorneys of their obligations under the Connecticut Practice Book when seeking to seal arrest warrants and other court documents.
Section 42-49A of the Practice Book begins: “Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.” That presumption is echoed in the commentary of the section, which summarizes the findings of various court cases that make up the established and non-discretionary law of the state. “The public and press enjoy a right of access to attend trials in criminal cases and to access documents filed in connection with such cases,” the Practice Book notes. “This right is well settled in the common law and has been held to be implicit in the first amendment rights protecting the freedom of speech [and] of the press.”
That right, of course, is not absolute – as indicated by the phrase “Except as otherwise provided by law” – and there are various reasons why at least portions of a court document may legally be sealed, such as to protect witnesses or preserve an ongoing criminal investigation that would truly be jeopardized if certain details became publicly known.
But the Practice Book recognizes that is a momentous step and mandates that judges work to minimize the impact on the public’s right to know. As such, a sealing order can be entered “only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in viewing such material. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.”
And the Practice Book requires judges to pay more than lip service to that principle by spelling out exactly what they’re doing and why. In sealing a document, “the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.” In addition, “the judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.”
There are no transcripts or memoranda in Eric Morelli’s file and veteran criminal court reporters will tell you that in practice, there is little resembling the formality and gravity envisioned by the Practice Book rules.
In the Morelli case, the initial seal was requested by the prosecutor in what sometimes seems like an automatic action in higher-profile cases. Such requests are rarely rejected by judges. The last extension to the seal order was requested by Morelli’s defense attorney, who said he feared pre-trial publicity could poison a jury pool and that details in the warrant might be embarrassing to those involved.
Defense attorneys are duty-bound to promote their clients’ interests, but seasoned lawyers certainly know those are almost never valid reasons for keeping an arrest warrant secret. Nevertheless, some judges apply an inappropriately low level of scrutiny to such requests. And as in the Morelli case, they often are overturned only after intervention by a newspaper lawyer.
That’s not how it’s supposed to be. So in this, the 223rd year of the Bill of Rights, I offer a modest proposal that the state’s criminal bar and judiciary give Practice Book Section 42-49A a fresh read and recommit to the transparency that has been a hallmark of a reputable judicial branch for centuries.