Berchem Moses PC won an important victory at the Connecticut Supreme Court for the Town of Madison in a decision that will impact municipal police departments throughout the state. Floyd Dugas argued the case on behalf of the Town from the Freedom of Information Commission (“FOIC”) through an appeal to the Connecticut Superior Court, and finally an appeal to the Connecticut Supreme Court.
This week, the Connecticut Supreme Court issued a significant decision for police departments responding to requests for law enforcement records. Under the Freedom of Information Act (“FOIA”), certain records of law enforcement are exempt from disclosure, including “[r]ecords 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 such records would not be in the public interest because it would result in the disclosure of . . . information to be used in a prospective law enforcement action if prejudicial to such action.”
The Town of Madison received a FOIA request for investigatory records related to an unsolved murder that occurred in 2010. The case remains open, a suspect has been identified but not publicly named, and detectives continue to pursue leads and work on the case. However, the case went cold and weeks could pass without any new work being done on the case. When the Town received a request for its case files, it declined to provide them, citing the above exemption.
The FOIC held a hearing and ultimately ordered the Town to produce the records. The FOIC concluded that the Town offered only “speculation” that the disclosure of records would be used in a prospective law enforcement action and that the detective testifying for the Town could not articulate how disclosure would be prejudicial to such law enforcement action. The Town appealed the decision and the trial court sided with the FOIC. In doing so, the trial court stated that a “prospective” law enforcement action must be more than theoretically possible, but not necessarily likely or probable. It upheld the FOIC’s decision that the Town had not made a showing that a law enforcement action was “prospective.”
The Connecticut Supreme Court agreed that the trial court articulated the correct standard, that the law enforcement action must be more than theoretically possible, but not necessarily likely or probable. It also extended this standard to the question of how likely it is that a requested document would be used in support of an arrest or prosecution. Recognizing the specific considerations posed by murders and other crimes for which there is no statute of limitations, the Connecticut Supreme Court listed several factors that must be considered by the FOIC in ruling on such cases:
- the length of time that has elapsed since the commission of the crime;
- the length of time that has elapsed since the law enforcement agency last obtained significant new evidence or leads, i.e., whether the agency has effectively exhausted all investigatory leads;
- whether the agency has classified the investigation, even if technically open, as a cold case or the functional equivalent thereof;
- the number of investigators currently assigned to the investigation;
- the amount of time investigators currently commit to the investigation;
- whether the agency has a suspect and, if so, whether the agency’s suspicion is supported by more than speculation;
- whether advances in science or technology, such as advances in DNA analysis, may lead to new evidence or permit the fruitful reexamination of existing evidence; and
- the empirical likelihood that crimes of this sort will be solved after years of fruitless investigation.
The decision acknowledged that after years have passed and solid leads are less available, the FOIC may require more of a showing regarding the prospective law enforcement action, compared to the initial months and years following a homicide.
Ultimately, the Connecticut Supreme Court held that in the Madison case, the FOIC applied an incorrect legal standard and therefore required too much of the police detective in predicting exactly where and how the requested documents would be used. The decision also contained a significant factual assertion that was not supported by the record. Accordingly, the Connecticut Supreme Court remanded the case back to the FOIC to determine whether, under this newly articulated standard, disclosure of the records would not be in the public interest because it would result in the disclosure of information to be used in a prospective law enforcement action if prejudicial to such action.
Police departments seeking to invoke this exemption under FOIA should be prepared to articulate specific facts regarding the probability of a prospective law enforcement action and how disclosure of the records would prejudice such action, with reference to the specific factors articulated by the Connecticut Supreme Court.