CCFOI testimony: SB 234

A proposed exemption to police records would be overly broad and unconstitutional.

See full testimony from Michele Jacklin here.

SB 234, AN ACT EXEMPTING CERTAIN LAW ENFORCEMENT RECORDS FROM
DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT

Public Safety and Security Committee
February 29, 2024

Good afternoon Sen. Gaston, Rep. Boyd, Ranking Members Cicarella and Howard and Honorable Members of the
Public Safety and Security Committee:

My name is Michele Jacklin, and I am legislative co-chair of the Connecticut Council on Freedom of Information (CCFOI). We are a 69-year-old organization comprised of CT news media outlets and First Amendment supporters. Our mission is to advocate and promote government transparency, public access, strong Freedom of Information laws and other measures that guarantee the rights of individuals and journalists under the First Amendment to the United States Constitution and the state Constitution, and to promote government openness and transparency.

CCFOI was largely supportive of the so-called Police Accountability Law that was enacted in 2022. However, we oppose SB 234 for several reasons, not the least of which is that the proposed exemptions are not aligned with the exemptions in that law. And, generally speaking, the exemptions that would be created are too sweeping. Section 1 of SB 234 would alter a provision in the Freedom of Information Act (FOIA) that has stood the test of time for more than two decades. Currently, law enforcement agencies may withhold from public disclosure signed witness statements. That has enabled the identities of witnesses to be protected while providing access to information used by police officials when deciding to arrest someone and charge him or her with a crime.

The proposed language would suppress all information obtained from witnesses regardless of whether the information is included in an official statement. It would also permit the redaction of witness statements in police reports or those recorded by video or by such means as 911 calls. That overly broad exemption would, in effect, cloak transparency in criminal investigations.

But the proposed language isn’t needed because the FOIA already protects the identity of witnesses in many situations. Such examples include witnesses whose safety could be in danger or who might be subjected to threats or intimidation if their identities were to become known.

Section 2 of the bill doesn’t accomplish what has been purported by the state police. The goal of the legislation, according to a statement submitted to the Office of Policy and Management, is to align provisions of the FOIA with the state’s body-worn camera law. But the proposal provides for limited access because it doesn’t include existing language that permits records involving minors to be released if the minor and parent consent.

In reality, it would seem that the objective of Section 2 is to prevent the news media from disseminating images or videos of an accident or crime scene that involves a minor, a victim of domestic or sexual abuse or a homicide or suicide victim. In our view, such a law would be unconstitutional.

The U.S. Supreme Court has repeatedly rejected prior restraint except in extremely narrow circumstances where the dissemination of information or images threatens national security. This protection was first established in Near v. Minnesota in 1931. It has been upheld numerous times, most notably in New York Times Co. v. United States in 1971.

The First Amendment of the U.S. Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press.” Government regulation of this kind should be reserved only for the most extreme cases. Section 2 of this bill does not meet that threshold. Government has no place in a newsroom, and using legislation to make editorial decisions is a dangerous precedent.

If the intent of this bill is to address law enforcement agencies’ reliance on sworn statements captured on body- worn cameras that are considered to be the functional equivalent of a signed witness statement, then CCFOI would urge committee members to work with the Freedom of Information Commission to draft language that would accomplish that goal by creating a very narrow exemption to the FOIA.

Thank you.
Michele Jacklin