An FOI Lawyer’s Wish For The New Year

As the year 2013 comes to a close, I have started to think–like most of us do–about my hopes for the New Year.  At the top of the wish list, as always, is peace on earth.  Further down the list is the wish that is the subject of this post: I wish (and hope and pray) that the trend towards opacity in our state government stops and reverses itself.  We need to return Connecticut to the days when it was a true leader in the fight for freedom of information and government transparency.

I don’t say this just because of my abstract interest in, and support for, freedom of information (“FOI”).  I say this because good government and good public policy require an open, transparent government.  And I have watched, first in disbelief, then in horror, as the legislature, state prosecutors and state police have placed obstacle after obstacle in the way of a public that wants to understand what happened at the Sandy Hook Elementary School on December 14, 2012, not because  of a prurient interest in gory details, but because information about what happened is essential to helping government develop policies to try to prevent such a tragedy from ever happening again.

To illustrate my point, Governor Malloy created the Sandy Hook Advisory Commission on January 3, 2013 and tasked it to learn as much as it could about the tragedy and develop a set of legislative recommendations in the areas of mental health, school security and gun control.  Nearly a year later, with the 2014 legislative session only a bit more than a month away, the Commission has been stymied in its efforts to fulfill its mission, particularly with respect to mental health recommendations.  Why?  Because, amongst other reasons:

1. In the final hours of the 2013 legislative session, the legislature reacted to a groundless rumor that filmmaker Michael Moore intended to request copies of the Sandy Hook crime scene photographs and then publish them.  Based on that groundless rumor, and without a public hearing, the legislature passed new exemptions to the state Freedom of Information Act.

2. The Danbury State’s Attorney, in an effort to prevent the release of Sandy Hook 911 calls, made arguments that a Superior Court judge described as “borders on the frivolous.”

3. The State Police took more than a year to release the report of their investigation of the Sandy Hook shootings, and then redacted critical portions of that report.

All of these obstacles to the release of information about Sandy Hook were well-intentioned.  No one wants to cause the families of the Sandy Hook victims more pain and anguish than they have already suffered.

But sound public policy has suffered because of those good intentions.  Government cannot make public policy based on anecdotes.  It needs real, concrete, verifiable information.  Sometimes the publication of that information will remind people of things, including horrible tragedies, that they would rather remain part of the past so they do not have to relive them.  Make no mistake–openness, transparency and freedom of speech have a cost.   But they also have a benefit.  And history has taught us that the benefits almost always outweigh the costs.

I have seen a similar problem occur before in Connecticut–after Dr. Petit’s wife and daughters were murdered in their Cheshire home.   No one wanted to cause Dr. Petit further pain or suffering.  Whenever he was present at legislative or other public hearings concerning the death penalty or victims’ rights, virtually no one dared speak in opposition to him out of fear of appearing unsympathetic.   The “chilling effect” of his mere presence on candid discussion was overpowering.

The answer, of course, is not to deny a voice to Dr. Petit, the families of Sandy Hook victims, or the victims of other tragedies.  They have every right to speak, to be heard, and to have their positions considered.  But somehow, some way, we need to figure out a way to express our deepest sympathies to such victims without letting those sympathies prevent us from doing the things that good government needs to do, like collect information, have candid public hearings, and make reasoned, considered decisions.

That’s my FOI lawyer’s wish for 2014.  But if I can’t have that, peace is on earth is ok too.