Connecticut police cannot use an exemption to the state’s Freedom of Information Act (FOIA) to prevent disclosure of records when there is only a theoretical possibility they may be used in law enforcement action according to a recent ruling from the Connecticut Supreme Court.

Law enforcement records that are not otherwise available to the public and were compiled as part of the investigation of a crime are exempt from FOIA if they would result in the disclosure of “information to be used in a prospective law enforcement action if prejudicial to such action.”

But that exemption does not protect records from indefinite disclosure if they are part of a case where future prosecution is only a possibility according to the state’s highest court’s ruling in Drumm v. Freedom of Information Commission, which upheld a ruling by the Freedom of Information Commission (FOIC).

At issue in the case is the 2010 murder of Barbara Beach Hamburg, which occurred in 2010 and is unsolved. Madison Hamburg, the victim’s son, and Anike Niemeyer, a filmmaker, subsequently began working on a documentary about the case.

In 2019, Niemeyer filed a FOIA request for the case file into Hamburg’s murder with the Madison Police Department in 2019. The request included all investigatory records, all witness statements, all interrogation recordings, all crime scene recordings, and the 911 call the department received when Hamburg’s body was discovered. Madison police denied Niemeyer’s request, citing exemptions to FOIA that do not require police records to be released if they disclose signed witness statements or if they could prejudice prospective law enforcement action.

After the department denied the request, Niemeyer appealed to the FOIC. According to the FOIC’s final decision, the only evidence Madison police provided in support of their decision was testimony offered by Detective Christopher Sudock, who “offered only speculation that the disclosure of records responsive to the complainant’s request would be used in a prospective law enforcement action arising out of the investigation into the death of Barbara Hamburg.” Sudock also could not identify a prospective action, only speculation.

Madison police also testified that the investigation into Hamburg’s death is ongoing and while it is not always an active investigation, there are periods where police receive information and investigate it.

The FOIC found that the police failed to prove disclosure of the records would be prejudicial to prospective law enforcement action, even if it were to occur, and ordered the Madison Police Department to turn over all records Niemeyer had requested, except signed witness statements.

Madison police appealed the decision to the state trial court, which upheld the FOIC’s decision. They then appealed to the state supreme court, arguing the FOIC “arbitrarily and capriciously failed to articulate and apply the correct legal standard” that applies to the FOIA exemption they claimed. They also argued the trial court “adopted and retroactively applied a new version of the standard without affording them a fair chance to satisfy that standard.”

The high court’s decision analyzed the meaning of the word “prospective” in the statute, looking at its probabilistic meaning, as a potential or likely thing that could happen; at its meaning in relation to someone’s prospects; and at its meaning in relation to something that could happen in the future. They found either of the first two definitions were likely what the legislature intended but that the statute is facially ambiguous. They also noted that the trial court adopted the word’s probabilistic definition and concluded that “a prospective law enforcement action is one that is at least a reasonable possibility, which, it explained, is more than theoretically possible, but not necessarily likely or probable, to occur.”

The supreme court agreed that was the “most reasonable reading” and ultimately tried to strike a balance between the meaning of the word within the statute and its history in the legislature.

“With respect to the remaining possible meanings of “prospective”; i.e., probable, likely, or possible; we rely on the principle that the FOIA effects a balance between the competing interests and conclude that the legislature intended the law enforcement exception to apply only when a law enforcement agency is able to make the threshold showing that an arrest or prosecution is at least reasonably possible.” Justice Raheem L. Mullins wrote in the court’s unanimous decision. “It need not be probable or likely, but it must be more than only remotely or theoretically possible. This standard effectuates the legislative intent of providing open access to public records without unduly hamstringing ongoing investigations.”

While the court agreed with the lower court in its analysis of what “prospective” meant, it differed with its finding that the police investigation into Hamburg was a cold case and that the police had failed to provide any evidence other than speculation that the case would be prosecuted in the future.

The court found that the FOIC, and subsequently the trial court, ruled erroneously in finding that Sudock’s testimony, including that he typically works on the case at least once a month, was not sufficient to show the police might one day prosecute the case. The supreme court noted the FOIC was wrong in stating that police have not identified a suspect, which they have.

As a result, following the new standard for reasonable possibility the court adopted in its ruling, they remanded the case back to the FOIC. Sudock testified that some of the requested records contained information only the perpetrator of Hamburg’s murderer could know. Any documents police identify as containing that information, the court concluded, should be submitted for in camera review by the FOIC to determine whether they are subject to disclosure.

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