FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on January 12, February 23, and March 11, 2004, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing, the Office of the State’s Attorney, Judicial District of New Haven, moved for and was granted intervenor status.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter received and filed May 8, 2003, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their April 23, 2003 request for access to the respondent’s file concerning the December 4, 1998 death of Suzanne Jovin and the investigation of the circumstances surrounding her death.

 

3.      It is found that the respondent denied the complainants’ request.

 

            4.  The requested records were submitted to the Commission for an in camera inspection by the respondent, numbered by the respondent as pages 1 through 2,572, and organized into the categories described in paragraph 5 of the findings, below.

 

5.  It is found that the records consist of:

 

a.                 interviews with, and information concerning, potential witnesses (including transcripts of recorded interviews of potential witnesses or suspects, inquiries to other entities concerning potential suspects or witnesses, and responses to inquiries concerning potential suspects or witnesses);

 

b.                statements of witnesses;

 

c.                 police reports (including incident reports, reports of searches, reports identifying vehicles located in the vicinity of the crime, reports identifying persons associated with those vehicles, reports identifying persons interviewed and the substance of those interviews, and reports identifying persons possibly having information relevant to the investigation);

 

d.                search warrants and related affidavits;

 

e.                 forensic reports;

 

f.                  investigatory summaries (including memoranda discussing evidence and witnesses);

 

g.                 potential documentary evidence; and

 

h.                 descriptions of potential physical evidence (including receipts for evidence, requests for examination of physical evidence, and reports of examination of physical evidence).

 

6.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  Section 1-210(a), G.S., provides in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

8.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

9.  The respondent and the intervenor maintain that the requested records are exempt from disclosure pursuant to §§1-210(b)(3)(A), (B), and (C), G.S., which provide that disclosure is not required of:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action….

 

10.  It is found that the Suzanne Jovin homicide investigation is unsolved but ongoing, and the passage of time does not affect the disclosability of the records in this matter. 

 

11.  With respect to §§1-210(b)(3)(A), (B), and (C), G.S., generally, the respondent maintains that it has already made significant disclosures and that all of the remaining documents are exempt from disclosure.

 

12.  Also with respect to §§1-210(b)(3)(A), (B), and (C), G.S., generally, the complainant maintains that, in light of the respondent’s disclosures, the respondent must prove that the information contained in each of the undisclosed records is not already “otherwise available to the public” and that the identity of each informant and witness is “not otherwise known.”

 

13.  It is found that the respondent disclosed approximately 500 or more pages of documents from its files on the Suzanne Jovin investigation, although many of those pages are duplicates.

 

14.  It is also found that the documents disclosed have only the most tenuous relationship to the records requested by the complainants, largely consisting of already-published accounts of the homicide and the individuals and institutions associated with it, and unrelated police incident reports involving some of the same individuals.

 

15.  In general, it is found that the documents disclosed by the respondent are largely not helpful in determining whether the information contained in the in camera documents is otherwise available or known to the public, and that those disclosures only in isolated instances support either the complainants’ arguments for, or the respondent’s arguments against, disclosure.

 

16.  With respect to §§1-210(b)(3)(A) and (B), G.S., the respondent and the intervenor maintain that none of the informants or witnesses identified in the requested records are otherwise known, and that, with respect to all of them, their safety would be endangered or they would be subject to threat or intimidation if their identities were made known. 

 

17.  With respect to §1-210(b)(3)(C), G.S., the respondent and the intervenor maintain that, in an active unsolved homicide case, it is impossible, until they identify a viable suspect, to determine exactly what potential evidence will be used to prove the guilt of that suspect, or what testimony of which potential witnesses will be used to prove that guilt.  Consequently, they maintain that disclosure of any potential evidence, or descriptions of evidence, or information about potential witnesses, could potentially prejudice the ultimate prosecution of the case.  They maintain that the actual killer could protect himself from prosecution if he knew what evidence the police had collected or what witnesses they had interviewed, by concealing additional evidence, or altering his eventual testimony, or threatening or harming witnesses.

 

18.  The respondent therefore maintains that it must be permitted to prove the exemption of the requested records category-by-category, as described in paragraph 5 of the findings, above, rather than page-by-page, because the respondent cannot demonstrate the prejudice of disclosure of any particular record under §1-210(b)(3)(C), G.S., until it is prepared to assemble its case against a particular suspect.

 

            19.  The complainants maintain, to the contrary, that the respondent should not be permitted to prove the exemption of the requested records category-by-category, but rather must prove it document-by-document, and line-by-line in each individual document.  The complainants further maintain that the exemption, for example, of one line in a document cannot “inoculate” the remainder of the document from disclosure.

 

20.  In support of their argument, the complainants cite Donovan v. Greenwich Police Department, docket #FIC 87-173.  In Donovan, the Commission addressed the exemption under §§1-19(b)(3)(B) and (C), G.S. [now §§1-200(b)(3)(B) and (C)] of an 18-page report, written by a consultant, that analyzed and critiqued the investigation by the Greenwich Police Department of an unsolved homicide.  That decision analyzes the single 18-page document line-by-line, in 201 paragraphs of findings and conclusions.

 

21.  However, the document analyzed in Donovan was not comparable to the records sought by the complainants, either in content or size.  Specifically, the Commission found in Donovan that the requested analytical report was “not co-extensive with the respondents’ investigative file concerning the … homicide; rather, the report reviews and comments upon the respondent department’s investigation, while revealing little of the actual content of the investigative file.”  Donovan at paragraph 8 [emphasis added].

 

22.  It is found that the in camera review undertaken in Donovan was not comparable to the review of documents in the instant case.

 

23.  In further support of their argument, the complainants cite Department of Public Safety v. FOIC, 51 Conn. App. 100, 105 (1998), for the proposition that §1-210(b)(3), G.S., requires an evidentiary showing that the records are to be used in a prospective law enforcement action and that the disclosure of that information would be prejudicial to such action.

 

24.  While the Commission agrees with the standard regarding the respondent’s burden of proof, as enunciated in Department of Public Safety, above, it does not agree that meeting that standard requires a document-by-document, line-by-line analysis in every case.  Specifically, the Commission notes that the Appellate Court based its conclusion that the burden of proof in Department of Public Safety had not been met on the fact that the respondent’s entire claim of exemption was based on evidence “that the completed records had not yet been reviewed by the division of criminal justice and that the office of the state's attorney had not yet closed the case.”  Department of Public Safety at 105.

 

25.  In contrast, it is found that the respondent’s evidence in support of its claim of exemption in the instant case is based, not upon the fact that the records had not been reviewed by the division of criminal justice, but rather upon the fact that the division had reviewed the records and that, in the division’s opinion, disclosure would potentially prejudice the ongoing investigation and endanger the safety of witnesses and informants.

 

26.  It is concluded that if the complainants’ argument were correct as to the respondent’s burden of proof in every criminal case, then the respondent could also be required, on the first day of its investigation, to prove to the Commission how all evidence collected and all information gleaned from witnesses would actually be used in a law enforcement action, and how disclosure of that information would be prejudicial to such action.  Such a burden would put the police in the position of essentially proving the viability of their criminal case to the Commission before they had concluded their investigation, or even before they had identified a suspect.

 

27.  The Commission notes that in some cases it has conducted a page-by-page, line-by-line analysis of in camera documents, as in the Donovan case, above, and that in some cases it has not.  See, for example, Paul Bass and New Haven Advocate v. Chief, Police Department, City of New Haven, docket #FIC 2000-312.

 

28.  The complainants cited no cases in which the Commission had conducted a page-by-page, line-by-line analysis of the entire investigatory file of an unsolved homicide.

 

29.  In Bass, above, the Commission concluded, after reviewing the requested investigatory records of a pending homicide case, that disclosure was not required pursuant to §1-210(b)(3), G.S., because “the respondent has a reasonable basis to believe that disclosure of the requested records at this time would not be in the public interest because such information might be used in a prospective law enforcement action and that disclosure at this time might prejudice such action.”  Bass at paragraph 12. 

 

30.  While the factual circumstances in Bass, above, were not identical to the instant case, it is found that the risk of prejudice to a prospective law enforcement action is similar: that is, that the police department’s investigatory files, by being made public, may also be made known to the actual killer.

 

31.  It is therefore concluded that, under the facts and circumstances of this case, it is not reasonable to impose on the respondent the burden of proving how disclosure of each line in each document in their investigatory file could ultimately prejudice a prospective law enforcement action.

 

32.  The respondent maintains that the phrase “not otherwise available to the public” in §1-210(b)(3), G.S., means “not made available to the public by the police department,” and that disclosure of the mere fact that the respondent has in its file publicly-known information could prejudice its investigation, because then the killer would know what information was the focus of the respondent’s investigation.  

 

33.  The Commission disagrees with the respondent’s interpretation of §1-210(b)(3), G.S., which is not consistent with the actual language of the statute.    The respondent’s interpretation, if correct, would shield from disclosure, if in the possession of the respondent, even newspaper reports, which the respondent has conceded are public.  Essentially, the respondent’s argument proves too much.  If nondisclosure depends, not on the content of the record, but on the mere fact that the respondent has the record in its investigatory file, then the entire file must necessarily be nondisclosable, because disclosing any part of it would disclose what information police have.  Such an interpretation would render the specific language of the statute meaningless.

 

34.  Consequently, it is concluded that not every document in the respondent’s files is exempt from disclosure by virtue of simply being in those files.

 

35.  After a review of the in camera documents, it is concluded that, with the exception of the records described in paragraph 41, below, the respondent has a reasonable basis to believe that disclosure of the requested records at this time would not be in the public interest because such information might be used in a prospective law enforcement action and that disclosure at this time might prejudice such action.

 

36.  With respect to the respondent’s claim that the identities of witnesses and informants are exempt from disclosure pursuant to §§1-210(3)(A), (B) and (C), the respondent maintains that, at this stage of its investigation, it does not know which witnesses or informants it will use to prosecute the homicide, so that it cannot, individual-by-individual, prove that disclosure would be prejudicial.  Additionally, the respondent maintains that, because the killer is likely still at large, the safety of any of the informants or witnesses could be endangered by disclosure of their identities.

 

37.  The complainants maintain that, to the contrary, the respondent must prove that each potential witness or informant is not otherwise known, and how each individual would be endangered by disclosure of his or her identity. 

 

38.  After review of the in camera documents, and applying the same standard of deference to the respondent’s reasonable belief that disclosing the identities of informants and witnesses could endanger them, it is concluded that the identities of informants and witnesses, with the exception of the individual described in paragraph 40, below, are permissibly exempt from disclosure pursuant to §§1-210(3)(A), (B) and (C), G.S.

 

39.  In reaching  the conclusion that disclosure of most of records described in paragraph 5 of the findings, above, would either prejudice a prospective law enforcement action or endanger the safety of informants or witnesses, the Commission, in the absence of evidence to the contrary, has given substantial weight to the testimony of Senior Assistant State’s Attorney James G. Clark, who has approximately 20 years experience in the  prosecution of crime, including the trial of some 60 serious felony cases and 31 murder trials, and who has been the principal investigator of the Suzanne Jovin homicide since approximately April of 2000.  Clark is familiar with the full scope of the investigation and all of the records sought by the complainants.

 

40.  While deferring to the reasonable opinions of the respondent with respect to most of the requested records, it is found that there is no reasonable basis for the belief that disclosure of certain of the records could prejudice a prospective law enforcement action, or that disclosure of the identity of the “witness” who was the sole publicly (and prominently) named suspect, could endanger him.

 

41.  Specifically, it is found that the following in camera documents are not exempt from disclosure pursuant to §§1-210(b)(3)(A), (B) or (C), G.S., either because there is no reasonable basis for believing that they could be used as evidence, or because the information contained in them has otherwise been made known to the public, or because the information pertains only to the victim of the crime in ways unrelated to the crime itself, or because there is no reasonable basis for believing that the suspect named could be any further harmed by disclosure of his identity:

 

Page 120;

Pages 200-202;

Pages 203-208;

Page 238;

Pages 247-257;

Page 260;

Pages 262-265;

Pages 266-268;

Page 270;

Pages 287-292, (but with social security numbers redacted);

Page 293;

Page 294;

Pages 295-296;

Pages 802-954;

Pages 2147-2148;

Page 2149;

Pages 2150-2190;

Pages 2203-2229;

Pages 2231-2269;

Pages 2270-2337;

Pages 2338-2340;

Pages 2357-2370;

Page 2371; and

Pages 2404-2406.

 

 

42.  It is therefore concluded that the respondent did not violate §1-210(a), G.S., when it refused to provide access to records of its investigation, other than those described in paragraph 41 of the findings, above.

 

            43.  It is also concluded that the respondent violated §1-210(a), G.S., when it refused to provide access to the records described in paragraph 41 of the findings, above.

 

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent shall forthwith provide to the complainant the records described in paragraph 41 of the findings, above.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 2004.

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Gary Libow and The Hartford Courant

c/o Ralph G. Elliot, Esq.

Tyler Cooper & Alcorn, LLP

185 Asylum Street

City Place – 35th Floor

Hartford, CT  06103-3488

 

Chief, Police Department,

City of New Haven

c/o Martin S. Echter, Esq. and

Kathleen M. Foster, Esq.

Office of the Corporation Counsel

165 Church Street

New Haven, CT  06510

 

 

THE INTERVENORS IN THIS CONTESTED CASE ARE:

 

State’s Attorney of New Haven

c/o James G. Clark, Esq.

Assistant State’s Attorney

234 Church Street, Suite 402

New Haven, CT  06510

 

Ellen Jovin

c/o David N. Rosen, Esq.

400 Orange Street

New Haven, CT  06511

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-171/FD/abg/04/29/2004