Category Archives: Transparency/FOI

The Practice Book Rule That Connecticut Judges Rarely Obey

by Categorized: First Amendment, Law Enforcement, Legal Affairs, Media, Transparency/FOI Date:

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 osealedfileften, 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.

Is Jailed CCSU Poet a Good Professor? That’s None of Your Business.

by Categorized: Education, Law Enforcement, Transparency/FOI Date:

My colleague Kathy Megan reports this morning that the Board of Regents for the Connecticut State University system will reconsider Tuesday’s decision to grant full professorship to Ravi Shankar – a promotion that occurred while Shankar was behind bars at the Hartford Correctional Center.

In seeking to distance Shankar’s legal troubles from his classroom duties, regents spokesman Michael Kozlowski said he has heard that Shankar, the school’s poet in residence, “has tremendous student ratings, they like him very much, and that his academic record, at least as far as I know, is quite good.”

We’ll have to take his word for it.

As I’ve noted before, there is a strange lack of transparency surrounding the assessment of public university professors in Connecticut, with all records of their performance and evaluation off limits to the taxpayers who employ them. But that cloak confidentialstampof secrecy is yet more stark for faculty employed by the State University System, where the entire contents of personnel files are closed to any outside scrutiny.

Those aren’t my words; that’s the actual language of the faculty union contract, which was given the force of law years ago by the legislature. “The entire contents of personnel files,” the contract reads, “shall be considered private and may not be opened to any outside scrutiny except when ordered by a court of law.”

Those personnel files contain a faculty member’s application for employment, payroll records, disciplinary actions, job-related correspondence with university administrators and “all other relevant personnel actions.”

That unmatched secrecy would typically run afoul of the state’s Freedom of Information laws, which recognize that public accountability is part of the deal when the public pays your salary. But under Connecticut law, when the legislature approves a collective-bargaining agreement, the provisions of the contract supersede any conflicting state law.

So in 1997, the union asked for wholesale secrecy, negotiators for the state agreed, and legislators let it become law.

“One the biggest potential threats to public accountability is a state law (Gen. Statutes section 5-278) that is being used to allow public employee contracts ratified by the legislature to trump FOI statutes when it comes to releasing information in employee personnel files,” the Connecticut Council on Freedom of Information wrote in their Agenda for Open Government last year. “The executive branch should refuse to negotiate, and the legislature should refuse to accept, such back-door assaults on accountability in the state’s union contracts.”

The current state-university contract expires next year and negotiations will begin anew. We’ll see if there are voices in state government willing to stand up for transparency. In the meantime, it’s anyone’s guess whether or not Professor Ravi Shankar’s academic record is in fact “quite good.”

FBI Releases Heavily Redacted Report on Adam Lanza

by Categorized: Law Enforcement, Transparency/FOI Date:

In response to a Freedom of Information Act request by the Courant’s Dave Altimari, the FBI has released 111 heavily redacted pages detailing its investigation into Sandy Hook shooter Adam Lanza. As Altimari reported, another 64 pages were withheld in their entirety.

The government claimed generally that releasing the redacted information would constitute an invasion of personal privacy, reveal the identify of confidential witnesses or interfere with law-enforcement proceedings. The partially redacted pages can be viewed below.

A Sunshine Week Question: Why Are Evaluations of Public University Professors Kept Secret?

by Categorized: Education, Employment, Government, Law Enforcement, Media, Public Safety, Transparency/FOI, UConn Date:

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.

Malloy Opening Up the Data Mines

by Categorized: Data, Government, Transparency/FOI, Uncategorized Date:

Gov. Dannel P. Malloy signed an executive order today designed to take some of the massive piles of data held by the state and move them onto an easily accessible website where researchers can dive in.

“This data belongs to the people of Connecticut, and this initiative will help make that data more easily and conveniently accessible to them,” Malloy said, expressing a sentiment not always championed by government officials.

The executive order instructs the state’s executive agencies to identify a first round of datasets that will be made available on what is being dubbed the Connecticut Open Data Portal, at data.ct.gov. Agencies have been told to look for data that is reliable, already in electronic form, frequently requested by the public and free of confidential information.Malloy told the departments to also consider whether disclosure of the information would “improve agency accountability and efficiency, enhance public knowledge of the agency’s operations, or create economic innovation and opportunity.”

Agencies have 90 days to come up with that first list.

Tyler Kleykamp, who works for the Office of Policy and Management, will l lead the enterprise as Chief Data Officer (not to be confused with the television character “Data,” who was a chief officer of the U.S.S. Enterprise).

The initiative builds on the state’s transparency website, which already provides data in searchable and downloadable form on the state’s payroll, pension, contracts, grants and payments. And it’s part of a larger trend of freeing “big data” for analysis by researchers, journalists and business interests. States maintain enormous amounts of data on everything from health care spending to educational performance to highway safety. And more and more of it is seeping into the public domain.

“Timely and consistent publication of public information and data is an essential component of an open and effective government,” the executive order proclaims.

But as it moves to place that information online, the governor’s office also said it would safeguard private information, and said the initiative “does not apply to any protected data that, if disclosed, would violate state or federal law, would endanger the public health, safety or welfare, hinder the operation of government or impose an undue financial, operational or administrative burden on a state agency.”

The way officials interpret those parameters may determine just how public all that public information really will be.

When Winning Equals Losing at the Freedom of Information Commission

by Categorized: Government, Transparency/FOI, Uncategorized Date:

Wrenching a stack of public documents from a government agency that prefers to operate in secret can be a long and frustrating process, from the initial request for access, to the final hearing before the state’s Freedom of Information Commission.

But for requesters with the law on their side, the long trek typically ends with the satisfaction of finally holding that stack of documents.

At least that’s how it’s supposed to work.

But at a hearing Thursday, the FOI Commission considered three separate cases in which it found that agencies should have released a variety of requested records – while simultaneously ruling that the Commission was powerless to do anything about it.

The culprit in each case: time.

Continue reading

Government Officials And The Urge To Tell Reporters To “Pound Sand”

by Categorized: Government, Politics, Transparency/FOI Date:

A few years ago, a Courant reporter emailed a routine Freedom-of-Information Act request to a certain large central-Connecticut municipality, and the reply that ended up back in her Inbox included – most definitely unintentionally – the entire string of emails that was created as the request bounced around various city departments.

The gem of that email string was a brief question posed by the city’s attorney, who asked one of his deputies: “Helen, take a look at this FOIA request. Any feelings re our capacity to tell [the reporter] to go pound sand?”

We got the records – this attorney was famously ill-informed on FOI matters and “Helen” was kind enough to explain the law to him – and we chalked this up as a one-in-a-million goof. But it turns out it’s not entirely uncommon for public employees to inadvertently reveal their plans to disregard transparency laws.

The latest case involves Washington, D.C., television reporter Scott MacFarlane, who asked the federal government for a variety of records related to last September’s attack at the Washington Navy Yard that left 12 dead. Instead of the records, the FOI officer last week sent him an email – intended for another Navy official – with a surprisingly detailed strategy for minimizing the amount of information the government would have to release to the public.

The email laid out a few scenarios for asserting that it would be impossible to fulfill MacFarlane’s request for photographs and memos, with ideas for turning MacFarlane down altogether or persuading him to narrow the scope of the records he wanted.The FOI officer discounted much of the request as a “fishing expedition,” but regarding a request for emails sent on the day of the shooting, she wrote: “this one is specific enough that we may be able to deny.”NavyTweets

MacFarlane promptly posted an image of the email – along with the Tweet: “EPIC FAILURE- U.S. Navy accidentally sends reporter its strategy memo for dodging his FOIA request.” In addition to 1,800 re-Tweets, that prompted an apology from the Navy, which also took to Twitter to insist the agency is thoroughly committed to transparency and the “vital role” of the Freedom of Information Act – the actions of its Freedom of Information officer notwithstanding.

The Navy episode got reporters on a Freedom of Information list-serv talking about similar email snafus. When a Florida reporter asked the IRS for information related to a problem with direct deposit of tax refunds, a tax official accidentally wrote back: “The reporter also wanted to know how many taxpayers are affected by this situation. I’m trying to avoid answering the question but I’ll bet someone knows the answer.”

A reporter in Washington state once emailed questions to the county sheriff, with a cc to the press officer. The sheriff hit “Reply All” and, thinking she was writing to her aide, simply asked “Who is this jerk?”

Government officials often find it more convenient to operate in secret. But that’s not how things are supposed to work in a Democracy. Have your own FOI horror story? Or having trouble accessing public records that you, after all, own? Let us know. Our contact form is always available.

A Journalist’s New Year’s Resolution: If You See Something, Say Something

by Categorized: Ethics, Government, Media, Transparency/FOI, Uncategorized Date:

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 thescoop@courant.com, 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.”

That doesn’t serve democracy. Sunlight does.

If you see something, say something.

Santa Favors Government Transparency

by Categorized: Government, Transparency/FOI, Uncategorized Date:

OpenTheGovernment.org, a pro-transparency coalition that promotes “less secrecy, more democracy,” is out with a naughty-and-nice list of politicians and government entities that have upheld or obstructed the notion that the people’s business is the people’s business.

NaughtyNiceGetting big presents under the tree this year are two members of Congress – California Republican Darrell Issa and Maryland Democrat Elijah Cummings – who last March unveiled the “FOIA Oversight and Implementation Act of 2013.”

The bill has several provisions designed to strengthen the federal Freedom of Information Act, including a requirement that agencies process FOIA requests with a presumption of openness. “It places the burden on agencies to demonstrate why information may be withheld, instead of on the public to justify release,” the lawmakers said. The legislation would also require agencies to post frequently requested information online and would establish a central portal for requesting federal records.

And getting huge lumps of coal for 2013? No surprise: The National Security Agency, which relied on secret court rulings for its massive surveillance program.

See the entire list of winners and sinners here.

Sedensky Formally Drops Appeal on Newtown 911 Tapes

by Categorized: First Amendment, Government, Law Enforcement, Legal Affairs, Media, Public Safety, Transparency/FOI, Uncategorized Date:

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.