Andy Thibault’s Well Intentioned, But Misguided, FOI Op-EdPosted: August 21, 2014
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.