The Hartford Courant – by MATTHEW KAUFFMAN
State prosecutors seeking to block the release of 911 calls made during the attack at Sandy Hook Elementary School say a preliminary order to disclose the calls could put police “at the mercy” of criminals eager to determine what evidence investigators had collected.
Prosecutors will make their case Sept. 25, when the state Freedom of Information Commission considers a proposed order that tapes of the calls be made public. The Associated Press asked Newtown police for copies of the 911 tapes on Dec. 14, the same day Adam Lanza shot his way into the school and killed 20 children and six women.
Danbury State’s Attorney Stephen J. Sedensky III ordered Newtown not to release the tapes. But last month, Kathleen K. Ross, a lawyer with the Freedom of Information Commission, ruled that the tapes were public records and there was no exemption in the state’s Freedom of Information Act that would permit police to withhold them.
In a legal brief filed with the commission, Sedensky argues that Ross misinterpreted state law, setting the stage for a battle that will likely center on two questions: whether the attack at the elementary school can legally be described as an act of “child abuse,” and whether there is any “prospective law enforcement action” that could be jeopardized by release of the tapes.
Ross rejected prosecutors’ assertions that the calls were protected by mandates limiting access to records of child abuse investigations, saying the law they cited relates to complaints made to the Department of Children and Families and to injuries inflicted by a person responsible for the welfare of a child. But prosecutors will argue that Ross interpreted the law too narrowly and that court decisions support their position that records of child abuse are broadly protected from disclosure.
Sedensky’s brief cites a state Appellate Court ruling that “records of child abuse, wherever located, are exempted from the general rule of disclosure.” But to prevail, prosecutors still will have to persuade the commission that the Dec. 14 shootings constituted “child abuse” as that term is intended to be understood — an assertion Ross soundly rejected.
Prosecutors also will argue that the tapes are protected by an exemption designed to preserve the integrity of ongoing criminal investigations. State law permits police to withhold records collected during a criminal investigation if those records are to be used “in a prospective law-enforcement action” and if release of the records would jeopardize that action.
The definition of a “prospective law-enforcement action” is a frequent point of dispute when people seek police records. Although there is no prosecution envisioned as a result of the Sandy Hook shootings, Sedensky argues that the ongoing investigation itself amounts to a “prospective law enforcement action,” while the Freedom of Information Commission and court rulings typically have applied a narrower definition.
In the most strongly worded section of the brief, Sedensky argued that prosecutors should be given wide latitude to determine if or when a particular piece of evidence can be disclosed. “Under the ruling in the proposed decision,” he wrote, “the investigators and the state’s attorney would be at the mercy of a criminal seeking to find out what law enforcement knows before law enforcement knows the significance of an individual piece of evidence.”
Reporters and others have long used 911 tapes to assess how law enforcement agencies responded to emergencies and to learn details of an incident. But the Dec. 14 shootings have attracted so much interest — including interest from those who assert the attack was staged and have, in some cases, badgered those directly affected — that lawmakers and others have moved to restrict the release of information about the killings.
The Freedom of Information Commission hearing may be the first test of a law passed in response to Newtown that barred the release of certain audio recordings “where the individual speaking on the recording describes the condition of a victim of homicide.” Although the law clearly applies to communications between first responders, it does not require police to withhold recordings of “an emergency 9-1-1 call or other call for assistance made by a member of the public to a law enforcement agency.”
Sedensky, however, argues that that provision should be read to apply only to calls made by bystanders, rather than those directly involved in an incident, saying the 911 calls from Sandy Hook “came from crime victims/witnesses as the crimes were being committed, not an uninvolved member of the public.”
Sedensky also challenged Ross’s finding that Newtown police violated the Freedom of Information Act by deferring to prosecutors in refusing to release the tapes. Ross concluded that Newtown officials should have independently determined if release of the records was mandated, and said the commission settled that issue five years ago in a similar case involving calls to police.
“The Commission is dismayed that it is again presented with an issue that it addressed in 2008 wherein a local police department refused to disclose the 911 calls at issue based on a directive from a state’s attorney because such records relate to an ‘ongoing’ investigation,” Ross wrote. “The Commission again notes that, although the state’s attorney’s office has the right to request that the public agency not disclose public records, it does not have the right to dictate the public agency’s actions.”
That, however, prompted some push-back from Sedensky, and possibly some insight into how contentious next week’s hearing might be.
“A determination by the state’s attorney that material is relevant to a criminal investigation is binding on any law enforcement agency,” Sedensky wrote in the brief. “The 9-1-1 calls were ordered not to be disclosed. It was not up to Newtown to decide otherwise.”
In other words…Fedgov is trying to cover up the fact that they are covering up a coverup which is covering up the fact that it was all a drill and nobody was killed at Sandy Hook.