By Paul Bass
The State Supreme Court may have had no choice but to hand cops new powers to hide information from the public. But the state legislature can take action to rein in those powers.
So said New Haven state Sen. Martin Looney in the wake of a unanimous Supreme Court ruling to withhold most information about crimes from the media, for years, without even having to explain why.
That ruling came this week in a case called Commissioner of Public Safety v. Freedom of Information Commission. The justices ruled that Derby police were justified under the law when they waited two years before giving much information to the New Haven Register about the murder of a father by his son in 2008. According to the ruling, police must give only basic “blotter” information to the media for pending crimes—the charges, the name of the accused, the date and time of arrest. They have to provide some form of “document” as well, but that can include a bare-bones “press release” with no more information. And they can continue to withhold information while a case remains “pending.” That means an unsolved case can drag on for years, or decades, without information being released.
Click here to read the decision.
It matters what Martin Looney thinks about the ruling, because he is expected to become the president of the State Senate. From that perch, he will have the most say in what matters get taken up and advanced.
Looney pointed out that the justices’ ruling hewed strictly to the current Freedom of Information law in making the decision. It didn’t weigh in on merits of philosophical arguments made by media organizations statewide, about how the law should work. That’s the legislature’s job. The legislature will do that job, Looney said.
That’s clearly something that we will need to look at next year,” Looney said.
He didn’t commit to any specifics changes he would make to the law in response to the court ruling. But he did say that “the time has come to provide for some additional disclosure.
“This case highlights the need for a new legislative review. The court invites the legislature to take another look at the issue.”
In editorials published in the ruling’s wake, newspapers argued that now police departments will escape public scrutiny of how it handles cases. The papers also suggested that they should have access to officers’ incident reports as well as mug shots and names of victims. (The Independent does not publish mug shots of accused criminals except in the case of public figures or exceptional circumstances.)
Law-enforcement agencies have argued that the release of, say, incident reports with names of witnesses or information about pending investigations can blow a case. It can also endanger the lives of witnesses or lead members of the public not to cooperate with police in the future.
A subtler question—one that will face Looney (pictured) and his fellow legislators—is how to navigate those questions about information that can jeopardize an investigation. Under the Supreme Court ruling, the police can just declare information exempt from public view because of “pending” investigations. Looney noted that police can simply declare a case “pending” indefinitely. They don’t even have to prove that they’re actually still investigating.
That was a major issue in the 1994 gubernatorial campaign, when a local police chief refused to release information about a domestic violence complaint against a candidate with whom he was friendly, Republican John Rowland. (Rowland won the election, and two more elections after that. He rewarded a Superior Court judge, Christine Vertefeuille, who had helped kept the report secret in 1994 with a promotion to the appellate court, and then to the state Supreme Court, where she sits to this day.)
The state Freedom of Information Commission, among others, has suggested that the release of more information about crimes be made the default position of the law, with the burden or proof placed on police agencies if they wish to withhold (or redact) arrest reports or otherwise keep some information secret.
Looney said he envisions the legislature looking at “whether or not the presumption should be changed to have a presumption in favor of disclosure if police are able to raise specific objections.”
The senator cited a passing point in the justices’ 27-page ruling to demonstrate why the ball has fallen in the legislature’s court: The justices cited, as one reason for siding with the police in this case, the fate of “Senate Amendment A.” Legislators considered that amendment the last time they updated the state’s Freedom of Information statute, in 1994. The amendment that would have required the police to “disclose both the blotter information and ‘the arrest report, incident report or any similar report of the arrest of a person.’ Moreover, the Senate Amendment A did
not offer the option of a news release or make clear that the choice of which document to disclose remained in the discretion of the law enforcement agency,” Justice Richard Robinson wrote on behalf of the court.
Twenty years later, the legislature may have a chance to vote again.