Andy Thibault’s Well Intentioned, But Misguided, FOI Op-Ed

Cool Justic Report author and columnist Andy Thibault recently wrote an op-ed, along with Register Citizen reporter Isaac Avilucea, about their frustrating experience during a recent hearing before the Freedom of Information Commission (“FOIC”). The authors of the op-ed have some harsh words for the hearing officer, FOIC commissioner Matthew Streeter, and how he conducted the hearing. The authors write of Streeter that “his bias and negligence pose a dire warning for any lay complainants who appear before the FOI Commission going forward.” They further complain that Streeter sustained most of the objections raised by Assistant Attorney General Terrence O’Neill (who represented the State Police at the hearing) and also accuse Streeter of “suppress[ing] evidence and statements that normally and customarily would be admitted during Freedom of Information hearings.”

I watched the CT-N recording of the hearing and strongly disagree with the sentiments the op-ed authors expressed, particularly their characterization of Commissioner Streeter (with whom I have no relationship) as biased or negligent. And he certainly did not “suppress” evidence or documents. Still, I think I know why Messrs. Thibault and Avilucea felt frustrated.

As the authors correctly note, any citizen can file a complaint with the FOIC and appear before the commission without an attorney.  The hearing process is designed to be relatively informal and user-friendly for members of the public and the media who do not have legal representation. But, a hearing before the FOIC is still a legal proceeding. Although the rules of evidence are not strictly applicable in FOIC hearings, fundamental notions of “relevance” still guide the proceedings. The evidence a party seeks to admit must be relevant to the issue that the FOIC is being asked to decide. A hearing officer acts properly when he or she sustains an objection to a party’s request to introduce an irrelevant document or witness testimony into the record.

So, why did the hearing process in this case so frustrate and upset the op-ed authors?  I think the answer lies in a disconnect between what they were trying to prove and what was, in fact, legally relevant for them to prove.

The authors filed a FOI complaint because they believed the State Police had failed to “promptly” produce a police report of an incident in which a police officer was involved. The State Police did not produce the full report until fourth months after the incident. The failure to produce a requested document “promptly” is a violation of the Freedom of Information Act. The authors wanted the FOIC to impose a monetary fine on the State Police for the delayed production of the report. (By the time it was produced, it was no longer particularly newsworthy.) The authors sought to prove that there was no practical impediment to the State Police having produced the report much earlier. 

The State Police, however, had a very different view of the case.  Whether it would have been physically possible to produce the report earlier was not the issue. Rather, they relied on a recent Connecticut Supreme Court decision that says when a person is arrested the State Police are only required to release basic “police blotter” information about the arrest, such as the name of the arrestee and nature and date of the offense. (The police often release that information in the form of a press release.) The decision held that the police do not have to release the full police report until the criminal charges are actually resolved. (For the record, I disagree with the decision.  But it is the law.) The State Police had released the basic blotter information in a timely manner, and the criminal matter at issue wasn’t resolved for several months. So, from the State Police’s perspective, they had issued the full report as “promptly” as the law required.

The hearing officer apparently agreed with the State Police’s perspective on the legal issue in the case. Consequently, much of the evidence that Mr. Thibault and Mr. Avilucea wanted to introduce–which was intended to show that the State Police easily could have issued the full report earlier than they did–was legally irrelevant.  That’s why the hearing officer repeatedly sustained the State Police’s objections.

One last point.  Mr. Thibault and Mr. Avilucea describe the hearing officer as “suppressing” documents and evidence. That is a loaded word. Sustaining an objection to legally irrelevant evidence is not “suppressing” anything. Nothing was hidden from the public.  Nothing was sealed. Rather, the document in question–a “cut and paste” document Mr. Thibault created, which contained portions of the police report at issue, along with some personal notations of his own–was deemed legally irrelevant and, hence, was not admitted in evidence.  Judges and administrative agency hearing officers make those kinds of decisions concerning the admissibility of evidence all the time.

In sum, I understand Mr. Thibault’s and Mr. Avilucea’s frustration.  But the FOIC did its job, fairly and according to the law.  Mr. Thibault should know that; he was once a FOIC commissioner himself.


8 Comments on “Andy Thibault’s Well Intentioned, But Misguided, FOI Op-Ed”

  1. The esteemed lawyer Dan Klau offers professional and reasoned criticism of our beef with the Connecticut State Police bosses, the attorney general and the Freedom of Information Commission.

    Trouble is, he misses the boat, as only a lawyer could.

    Klau states that hearing officer Matthew Streeter sustained most of the objections raised by Asst. Atty. Gen. Terrence O’Neill. A review of the record shows virtually all of the objections by the “people’s lawyer” were sustained.

    Why should a citizen have to hire a top-gun lawyer to chew up the likes of Streeter and O’Neill? We could have brought in any number of lawyers who would have shut them both up effortlessly. But, to what end? Certainly not justice.

    A hearing officer, even an assistant attorney general, must indeed do justice.

    Streeter and O’Neill both failed miserably in this regard.

    Streeter did indeed suppress evidence that normally and customarily would have been admitted. This includes the smoking gun police report written the night of the incident. As we note in the op-ed, O’Neill knew this document was true and authentic when he conferred with State Police Lt. Paul Vance.

    Klau cites a recent state Supreme Court decision that – from the day it was issued – enabled state police to hide even more public records. That is a matter for Klau and other like-minded citizens to rectify. This decision, however, was not in effect last November when the state police broke the FOI law by withholding readily-available documents.

    More to the point, in this era of Sandy Hook and Ferguson, what do the Connecticut State Police have to say about earning the public trust?

    Vance has absolutely nothing to say. He seemed to act as if we were talking Martian when we asked him if state police have a duty to earn the public trust by producing public records promptly.

    Shockingly, Vance articulated a rigged system in which he provides virtually no public information, yet he is paid a huge salary as a public information officer.

    Try to get a public record from Vance. He’ll send you right away to the lawyers. They’ll take four months to produce a document that is readily-available on the spot. Maybe they’ll delete a date of birth or two.

    Legal relevance is in the eye of the hearing officer or judge. As Klau knows, these public servants have incredibly wide latitude in administering the law.

    Streeter erred by suppressing the two documents we presented and by empowering O’Neill to shut down our case at every turn.

    That’s not justice. That’s not the FOI law. That’s not public service.

    As Klau noted, I bring some experience and knowledge to the table in this regard as a former FOI commissioner.

    Andy Thibault

    http://morecooljustice.com/

    http://www.cooljustice.blogspot.com/

    7:45 p.m., of Aug. 20, 2014

    • Dan Klau says:

      Andy, thanks for taking the time to respond to my post. I have a few thoughts in response. I’ll try not to miss the boat this time, although I think that may be difficult. In reading your response, it seems to me that our differences correlate with our respective lay person/attorney statuses. In particular, your comments reflect a notion of what the law “should be,” whereas I’m focused on what the law “is.”

      Let me begin by stating that I generally agree with you on what the law should be. The State Police should release complete police reports immediately, without redactions, unless they have a persuasive argument that doing so would prejudice a prospective law enforcement action, reveal the identity of a confidential information, or release other information exempt under General Statutes section 1-210(b)(3), otherwise known as the “law enforcement” exemption of the FOIA. I’d also like to take this opportunity to remind the State Police, indeed all law enforcement officers in Connecticut, that just because the Freedom of Information Act may not require you to produce a document in certain instances, that does not mean it forbids you to do so.

      In fact, the Office of the Attorney General issued a formal written opinion in 2005 that reminded state agencies that, “[u]nder the FOIA, exemptions are permissive, not mandatory. Public agencies, therefore, retain the right to determine whether and when to assert an exemption, depending on policy determinations of the need for confidentiality.” See Office of the Attorney General, Opinion No. 2005-026, 2005 WL 4258776 (Conn. A.G. Oct. 14, 2005). In short, an agency may release information even if it is not required to.

      Unfortunately, as much as I share your view of what the law should be, and look forward to continuing to work with you to make our government more open and transparent, I know that the law in this particular case is not what you would like it to be.

      Contrary to your view, legal relevancy is not in the eyes of the beholder. That is not to say that people never disagree on questions of relevancy. But not all cases are close calls.

      You argue that the recent Connecticut Supreme Court decision I mentioned in my post only established “what the law is” (my quotes) as of the date of the release of the decision. Therefore, you argue that the law as it existed at the time you made the request for the police report required the police to release the report immediately. That argument raises an interesting question about the “retroactive effect” of a judicial decision. I can’t discuss the law of retroactivity in detail in this reply, but I can say that your argument is incorrect. Thus, the hearing officer in your case was justified in relying on the recent Supreme Court decision as setting forth the controlling law in your case. I know that may seem very unfair. Perhaps it is. But it is legally correct.

      So, at the end of the day, I still understand your frustration with the hearing. My main point is this: The FOIC is bound to follow the law. If you don’t like the law, the answer is not to get upset with the FOIC. The answer is to persuade enough legislators to change the law.

  2. Dan, your condescending tripe in paragraph one scores no points. You lose Round 2 by a self-inflicted knockdown. In professional scoring, that’s a 10-8 round for me – if you make it off the canvas. I’ll assert my expertise here as a professional boxing judge.

    In this matter, I do not need you to tell me what the law is. I know that the law is.

    I was taught decades ago to eat lawyers’ bones for breakfast. I do not defer to your alleged expertise, training, position or intellect. Rather than the hokum you assert as an “officer of the court,” my comments are based on my real life experience as a hearing officer and as a professional detector of bullshit.

    You sound like someone who is running for judge. Your deference to institutions and their flunkeys is disheartening at best.

    You make a good point that law enforcement would do well to come clean with public records, even when they think they don’t have to. Prudent leaders in law enforcement do this to build public trust because they actually believe in public service.

    So, the AG put out a memo to this effect. Big freakin’ deal. I watch what the AG does, not just what he says. He routinely assigns overpaid hacks – without due diligence – to hide public information for state agencies. In this regard, we can all see how the government class protects itself while paying lip service to citizens during election season.

    Your specious claim that legal relevance is not in the eye of the beholder is comic at best. I guess you have never seen a judge or hearing officer act arbitrarily or capriciously or in violation of U.S. Supreme Court rulings.

    Lt. Vance and other state police officials violated the FOI law multiple times beginning last November in this case. During the hearing, Vance displayed shocking ignorance of his duty to the public trust. He admitted, that as a highly-paid “public information officer,” he provides virtually no public information. Instead, he just sends citizens to the black hole of the legal department.These “police state” practices cannot be tolerated in a free society. Moreover, they do great harm to the good rank and file troopers who perform public service every day by eroding public trust and engendering disrespect for law enforcement.

    At the end of the day, go contemplate something before trying to tell me or anyone else what to do or what to get upset about. You missed the boat again, maybe as you sort of admit, because you have the vision handicap of being a lawyer.

    It’s not only the law, it’s also the process. The FOI Commission used to be a place where a lay person could make a complaint and not get jerked around by lawyers.

    I’m putting it back on you to show you are serious with action to correct the abuses of FOI by public servants including cops, prosecutors, judges and legislators. Don’t rely on the all-too-often mythical “administration of justice” to protect our right to know when the government and courts screw people slowly, like a knife in the back, inexorably destroying all our civil rights.

    Those who steal public records are stealing democracy itself. If these trends continue, pretty soon we will have to go through road blocks and have our papers checked.

    Andy Thibault

    http://morecooljustice.com/

    http://www.cooljustice.blogspot.com/

    2:15 p.m. Friday, 8-22-14

    • Dan Klau says:

      Andy, I’m not sure how to respond to your last. I fear our conversation is descending into “Jane, you ignorant sl-t” territory. I think we are just going to have to agree to disagree on this one. I’m tempted to get up from the canvas and continue the good fight, but I foresee simply another blow to the head if I do. :)

  3. Dan,

    Look forward to working together on FOI reform … we both took some punches … would like to channel this into mutual interests … for the public good.

    In friendship and appreciation,

    Andy

  4. Ethan Fry says:

    Re: Commissioner of Public Safety v. Freedom of Information Commission et al., the AAG arguing that case in front of the Supreme Court (incidentally, Terrence O’Neill) conceded while responding to a question from Zarella that police have to produce some sort of “narrative” beyond the bare blotter information, or “the news release would be a sham.”

    So however bare it is, the public is entitled to some sort of narrative beyond the blotter information, no?

    The full exchange:

    “All that news release would need to have is the name and address of the person arrested, the date and time and place of the arrest, and the offense for which the person was arrested, that’s all that the news release would have to contain, is that correct?” Zarella asked.

    “No your honor,” O’Neill said. “At that point, the news release would be a sham.”

    “That’s not a news release, that’s blotter information,” O’Neill went on. “Clearly, the statute, to be given full force, requires the production of some document that contains some narrative.”

    More at http://valley.newhavenindependent.org/archives/entry/Is_Arrest_Info_None_Of_Your_Business/

  5. Mike M says:

    Oh, man, I was hoping the argument would go further – minus the personal attacks. I thought the discussion was just getting started.


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