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 →
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.
I began teaching a journalism class at Central Connecticut State University this semester, with the taxpayers and students’ families picking up the tab for my modest salary. At some point, I imagine the school will evaluate my performance, and when that happens, it will be the official policy of the state legislature that it’s none of the taxpayers’ business whether I’m doing a great job or a crummy job.
If you teach in a public school in Connecticut, from Kindergarten to a Ph.D. program, state law deems that records of your “performance and evaluation” are off-limits to the public that pays your salary. I was given a stark reminder of that today, just as transparency advocates are wrapping up “Sunshine Week,” a national campaign highlighting the importance of open government.
Today happened to be the day I was provided with a large number of documents I had requested from the University of Connecticut, which included the draft of a review of Robert Miller, the former UConn music professor now under the microscope for allegations of sexual misconduct that spanned decades.
The evaluation runs 28 pages – 19 of which have been blacked out completely, and the rest of which have no more than a sentence or two visible. There is a list of “Dr. Miller’s Strengths” and another of “Dr. Miller’s Weaknesses” – but they have been almost entirely blacked out. There is a section marked “Comments from the Faculty” – immediately followed by a page and a half of black boxes. Under “PERSONALITY ISSUES,” the report notes that neither the review committee members nor those interviewed are trained psychologists, but the rest of section, taking up nearly two pages, is completely redacted.
This isn’t the university getting overly exuberant with a magic marker; it’s just following the law.
As I’ve written before, a move to keep teacher evaluations secret began 30 years, resulting in the passage of a law titled “Nondisclosure of records of teacher performance and evaluation,” which made teacher evaluations in local public schools exempt from the state’s Freedom of Information Act. Legislators were persuaded that parents would use evaluations to shop for the best teachers and pressure schools to place their children accordingly – though every parent I’ve ever talked to already knows who the great teachers are in their schools.
And even while the bill was pitched as a way to prevent teacher-shopping, the final language covered all professional staff in a public K-12 school except the superintendent. Assistant superintendents, principals, librarians – all covered by the law putting their performance evaluations off limits.
Before long, that sort of secrecy started looking good to those in higher education. And in 1989, a similar statute was put on the books blocking public access to performance records for the faculty and professional staff at UConn, the state university system and the state’s technical colleges.
And that’s why the document below is mostly black boxes.
Transparency advocates would like to change that. I’ll start with my eval. If and when CCSU gauges my performance, I’ll be happy to send a copy to anyone interested in reading it.
In these early days of the year, when we’re all vowing to hit the gym or give up smoking or call our mothers more often, I’m hoping there’s room for one more New Year’s resolution, one that’s as easy to execute as it is to remember.
For 2014, let’s all pledge: If you see something, say something.
No, I’m not talking about speed-dialing the Department of Homeland Security to report that suspicious Burger King bag you saw on Metro-North. I’m talking about building the partnership that exists between media outlets and the communities they reach. It’s a tenuous partnership at times, but it’s more important than ever.
News outlets have always depended on sources – from average citizens to the deeply connected – and for investigative reporters, that communication is critical. So when things are amiss in your community, when institutions are failing those they serve, when greed or bias gets the better of politicians, when injustice reigns, let us know.
Last month, the Courant reported that at least 15 college students awarded aid by the Doc Hurley Scholarship Foundation between 2005 and 2008 had received less money than they were promised. The students did their best to harangue scholarship officials, with little success, and years passed before someone thought to alert the paper and prompt the sort of action that transparency and publicity often brings. But by the time we were on the story, it appears the Foundation’s coffers were empty. Imagine if we had known about the problems years earlier.
The Courant breaks a lot of news and we have excellent sourcing. But it could always be better. And it could hardly be easier. Have a tip? Call me at 860-241-6741 or send an email to our investigative blog, at firstname.lastname@example.org, or use our online tip form.
Bob Woodward of the Washington Post once asked former Vice President Al Gore how much the press and the public really knew about what went on in the Clinton White House. Gore’s reply: “One percent.”
Danbury State’s Attorney Stephen J. Sedensky III Wednesday formally abandoned his argument that state law gave him the authority to withhold recordings of 911 calls made during the Sandy Hook Elementary School shooting, ending a nearly yearlong battle that highlighted tensions between transparency and privacy.
The Freedom of Information Commission had ordered the tapes released, and they were made public a week ago after a judge ruled he would not keep them secret pending an appeal by Sedensky of the commission’s ruling. Although Sedensky could have pursued the legal arguments even after the tapes were released, he dropped the appeal Wednesday, submitting a one-page form to the court declaring that he was unilaterally withdrawing the suit.
After the Associated Press filed a Freedom of Information Act request for tapes of the 911 calls, Sedensky ordered Newtown police not to release them. Although such tapes are routinely provided, Sedensky argued to the Freedom of Information Commission that the tapes were legally exempt from disclosure because their release would harm a prospective law-enforcement action and because they contained confidential evidence of child abuse and were the equivalent of signed witness statements.
The FOI Commission unanimously rejected those arguments and Sedensky appealed to Superior Court, asking Judge Eliot D. Prescott to stay enforcement of the commission’s order to release the tapes while the appeal was pending. Prescott turned him down, declaring that parts of Sedensky’s argument “bordered on the frivolous” and amounted to a claim by the prosecutor that the tapes are exempt from disclosure “because ‘I say so.’ ”
The tapes became a raw battleground in the emotional aftermath of the mass shooting, with some family members of those killed urging that the recordings never be made public and some transparency advocates saying prolonged efforts to keep them secret had merely fed conspiracy theorists and exacerbated the families’ anxiety over their release.
Prescott wrote that media attention following release of the tapes would probably be “a searing reminder of the horror and pain of that awful day.” But he said access to the tapes would also allow the public to evaluate the response by police.
“Delaying the release of the audio recordings, particularly where the legal justification to keep them confidential is lacking, only serves to fuel speculation about and undermine confidence in our law enforcement officials,” he wrote.
The tapes revealed the terror inside the school in the moments after the shooting began and the steely resolve of several staff members as they alerted police. Officers arrived quickly, although five minutes passed before the first entered the building. Sedensky said that with initial reports of multiple shooters, the actions of the earliest responders was appropriate.
The old adage that watching laws being made is like watching sausage being made was on display Wednesday during a 2½-hour meeting of the state’s Task Force on Victim Privacy and the Public’s Right to Know, at which frustrated members found themselves struggling with parliamentary bureaucracy and entrenched disagreements.
Half-way through the meeting, after a lengthy and complicated series of motions and amendments, Quinnipiac University law professor William Dunlap tried to suggest a way to move toward a vote on a proposal by state Victims Advocate Garvin Ambrose.
“Once we dispose of the Storey amendment, then Ms. Mozdzer-Gil’s amendment is entirely in order, because it’s an amendment to your original motion, as amended to conform with Sen. Fasano’s proposal,” he said.
But by then, Ambrose had given up.
“I have a solution,” he said. “I’m going to take the entire issue off the table and just withdraw my motion completely so we can start fresh, because this is getting beyond ridiculous at this point.”
But it wasn’t quite so easy. Instead, the panel spent another two minutes discussing whether Ambrose could in fact unilaterally withdraw his motion or whether the full task force had to vote on whether or not the full task force could stop considering the issue.
The task force, which will make recommendations to the legislature, was created during the last legislative session, following the mass shooting at Sandy Hook Elementary School and fears that records related to victims and witnesses would be released publicly. The same legislation that created the task force also temporarily amended the state’s Freedom of Information Act to exclude from mandatory disclosure “the identity of minor witnesses” in records created by police during criminal investigations.
State Sen. Leonard Fasano, a member of the task force, said at an earlier meeting that that language was added at the request of Bridgeport lawmakers in response to the 1999 murder of Leroy “B.J.” Brown, an 8-year-old city boy who witnessed a shooting and was killed before he could testify.
The boy’s name came out as part of the criminal trial, not as a result of a Freedom of Information Act request, and the recent change in the law would have no impact on a similar scenario. But it has become something of a line in the sand between privacy advocates and transparency advocates on the task force.
Transparency advocates say existing law already allows police to withhold the names of witnesses of any age who might face intimidation or threats. Privacy advocates say minor witnesses and accusers deserve special protection and a presumption that their identities should be confidential, just as juvenile defendants are afforded special protections. During Wednesday’s meeting, those points were made over and over.
As the gathering neared the one hour and 45 minute mark, co-chairman Don DeCesare’s patience was wearing thin, as illustrated in the video below, from CT-N. DeCesare said the group was “bunkered in” and seemingly unable to move forward.
Forty-five minutes later, after a discussion of whether or not they had to take a vote on whether to take a vote, the deeply divided panel did in fact call the roll on a proposal to restrict access to the identify of witnesses under age 13 – but to make that information releasable once the witnesses turn 18.
The 17-member Task Force on Victim Privacy and the Public’s Right to Know is typically a cordial bunch, despite having strong voices at polar opposites on the issues. Garvin G. Ambrose, the state’s victim advocate, for example, evaluates victim privacy and media rights through a completely different lens than, say, James H. Smith, a former newspaper editor and now executive director of the Connecticut Council on Freedom of Information. And Chief Public Defender Susan O. Storey sits right next to Chief State’s Attorney Kevin T. Kane, leading to frequent side-by-side disagreements, but also to occasional friendly banter.
But despite the normally civil tone, the task force, created in response to the Sandy Hook shootings, “can be a pressure cooker,” Smith said. And that below-the-surface tension made a rare and dramatic appearance during a marathon hearing Wednesday, when a frustrated DebraLee Hovey, a task force member and state representative from Newtown, laid into a transparency advocate who suggested that civil laws might already address the sort of harmful behavior members of the committee were looking to curtail.
Rosanna Cavanagh, a lawyer and executive director of the New England First Amendment Coalition, told task force members that relatives of the Newtown victims had seemed to indicate through their attorney that they were primarily concerned about graphic details of the crime being misused by those on the fringe who were intent on causing pain to the families. She said those actions could run afoul of laws already on the books that punish the intentional infliction of emotional distress.
That earned a sharp rebuke from Hovey, who assailed Cavanagh’s perspective – and lawyers in general. You can view the exchange below, and watch the entire hearing on CT-N.com, the website of the Connecticut Network.
The task force was established by the legislature to “consider and make recommendations regarding the balance between victim privacy under the Freedom of Information Act and the public’s right to know.” Those recommendations are due Jan. 1.
It certainly wasn’t their primary objective, but an intriguing Sunday story in the New York Times illustrates the value of keeping death certificates and death-certificate data available to researchers, including journalists.
The Times’ story reveals that in eight states in which reporters were able to analyze death records, most accidental shooting deaths of children were classified as something other than an accident, skewing the apparent prevalence of such deaths and in turn giving policymakers misleading data.
It’s not the result of a deliberate effort to under-report such tragedies. Instead, in states surveyed by the Times – as in Connecticut – medical examiners have a number of options for describing the manner of an individual’s demise, including classifying a death as a homicide, suicide or accident. And in some states, any death directly caused by the actions of another, even if accidental, is classified as a homicide. Likewise, some self-inflicted deaths are classified as suicides, even if the deaths – such as those from accidental shootings – are not intentional.
In all, the Times identified more than 250 fatal shootings of children known to be accidental – the majority of which were not counted as accidents in official death records.
The same issue appears to exists in Connecticut. In 2010, for example, death-certificate data – which has been collected and analyzed by the Courant for decades – includes five individuals younger than 18 who died by gunfire. Four are known or believed to have been killed intentionally. But the fifth victim, Jamese Hudson, a 16-year-old New Haven girl, was accidentally shot in the face by a friend, police said, while the two were playing with a gun in the friend’s bedroom.
Nevertheless, Hudson’s death is listed as a “homicide” – and not included in statistics for accidental shootings.
That discrepancy has important policy implications. Most safety legislation represents a balance between inconvenience to those affected and the reduction in harm that might be realized by government-mandated behavior. But for years, lawmakers considering measures to reduce accidental shootings have engaged in that balancing act with incorrect information on one side of the scale. And groups opposing stricter gun-storage laws have cited government statistics on accidental shooting deaths – now revealed to be flawed – to argue that such fatalities are uncommon enough that they don’t justify more-intrusive laws.
That debate will continue – but it will now do so with all sides having access to more-accurate information. And it’s worth remembering that none of this would be occurring if the Times had been unable to review death records.
A public analysis of how Connecticut classifies accidental shootings would likewise be impossible without the state’s tradition of making such records available. In the past, that same data has allowed the Courant to identify deadly medical errors that hospitals failed to report to state authorities, and was a cornerstone of the paper’s recent investigation revealing scores of preventable deaths among individuals with developmental disabilities who were living in state-run or state-supervised facilities.
State prosecutors and transparency advocates will square off next week as the state Freedom of Information Commission considers a proposed order to release tapes of 911 calls made during the December shooting at Sandy Hook Elementary School in Newtown.
In advance of the Sept. 25 hearing, Danbury States Attorney Stephen J. Sedensky III has filed a brief saying the proposed order misinterprets state law and, if upheld, could be a boon to criminals trying to figure out what evidence investigators have collected.
Sedensky argues that the tapes are protected from disclosure by laws related to investigations of child abuse, and by exemptions to the state’s Freedom of Information Act covering records to be used in a future law-enforcement action. Kathleen K. Ross, a lawyer with the Freedom of Information Commission, rejected those arguments during a hearing in June.
The full commission typically upholds the decisions of its hearing officers, but Sedensky will have an opportunity next Wednesday to try to persuade them to reject Ross’s proposed order. Either way, the matter may not be settled for a while. Whoever loses next Wednesday can appeal the commission’s order to Superior Court.
Our full story on Sedensky’s legal brief is here. And the full document can be read below.