Last year, the Connecticut Supreme Court overturned some 20 years of Freedom of Information law when it concluded that police departments need only disclose a bare minimum of arrest information (name, address, date, time and charges) pending prosecution.
This ruling applies even if other arrest information is not exempt from public disclosure. The Supreme Court majority itself, however, recognized that its tortured reading of the law is in need of legislative clarification.
House Bill 6750 is now wending its way through the General Assembly. The bill was introduced to reestablish the law that existed prior to the unfortunate Supreme Court decision. The bill passed through the legislative committee dealing with Freedom of Information in good fashion. It was then sent to the Judiciary Committee where, at the urging of the Chief State’s Attorney, it was amended to negate the original intent of the bill and, in essence, would codify into law the Supreme Court’s ruling.
As one who has been working in the field of government transparency and accountability for over 40 years, I am not exaggerating one iota when I say that failure to enact House Bill 6750 as originally proposed will be one of the final nails in the coffin of open government in Connecticut.
Ironically, Connecticut had been considered one of the enlightened pillars of good government, but unfortunately, of late it has earned a reputation as one that tolerates corruption and governmental misconduct. This is a stain on the entire state and an embarrassment to all of us who call Connecticut home.
Because government gives its law enforcement agencies monopoly power over the use of force and incarceration, they pose one of the greatest threats to a democratic form of government, if and when that power is misused or abused.
The aftermaths of the tragic killings of minorities by police officers – fueled by a lack of public information about those killings – in Florida, Missouri, New York, California, Wisconsin, and now in Baltimore — illustrate how police, prosecutorial, and indeed judicial secrecy has led to the widely-held perception, particularly in minority communities, of official government cover-ups of police misconduct.
Connecticut has not been immune to such cases of police misconduct. Racial profiling and the excessive use of force have been issues here for decades. Some have come to light only because civilians saw and recorded what transpired. Such episodes have led to a general distrust of, and a lack of confidence in, not only our law enforcement agencies, but all of the institutions of government – something public opinion polls report consistently.
Provisions in the Freedom of Information Act permit a police department to withhold any record or photograph whose disclosure would prejudice a prospective law enforcement action, endanger witnesses, or reveal secret investigatory techniques pending a public trial that may never occur, especially if it involves police misconduct. As originally drafted, House Bill 6750 would require that during the pendency of a criminal prosecution, a law enforcement agency must disclose at least basic police blotter information, without redaction. All other records about the arrest would be subject to disclosure unless they fall within the Freedom of Information Act’s very specific and categorical non-disclosure provisions dealing with law enforcement agencies.
House Bill 6750, in the form passed by the legislature’s Government Administration and Elections Committee, strikes an appropriate balance between protecting transparency and accountability in government, on the one hand, and preserving the integrity of pending prosecutions on the other. The bill as amended by the Judiciary Committee does not.
It simply would permit law enforcement agencies to keep secret virtually any information they choose without reference to the specific exceptions to disclosure actually set forth in extreme detail in the Freedom of Information Act itself. It would eliminate a two-decade old, time-tested system for determining what information must be disclosed and what may be withheld from the public pending a criminal prosecution.
Without the bright line rule that would be re-established under the original draft of the bill, it is far more likely that corruption and misconduct will remain hidden from public view. And, unfortunately it will become much more likely that the public’s mistrust of our law enforcement institutions and officers will continue to erode and lead to the consequences we so recently witnessed elsewhere.
Mitchell W. Pearlman is the former executive director of the Connecticut Freedom of Information Commission.