The “Perkins” Case And The “Legimate Public Concern” Test

If you are a CT-N junkie like me, or have been following reports in other media outlets concerning proposed legislation that would restrict access under the state Freedom of Information Act (“FOIA”) to crime scene photographs and 911 calls, you’ve probably heard many references to two court cases, one called “Perkins,” the other called “Favish.”   The two cases establish different legal standards for determining when the public disclosure of a government document would constitute an invasion of someone’s personal privacy.  In fact, Don DeCesare, the co-chairman of the Task Force on Victim Privacy and the Public’s Right to Know, jokingly said in testimony before a legislative committee two weeks ago that he wished he had never heard of those two cases.  (They were discussed ad nauseam during task force meetings.)

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New York Times v. Sullivan, “Breathing Space” And Freedom Of Information

“Whatever is added to the field of libel [individual privacy] is taken from the field of free debate [freedom of information].”

Daniel J. Klau (March 13, 2014) (paraphrasing New York Times v. Sullivan, 376 U.S. 254 (1964)).

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Fifty years (and 4 days) ago, the United States Supreme Court decided the landmark defamation case, New York Times v. Sullivan, which established the “actual malice” standard for defamation claims against public officials.  That standard requires a public official who brings a defamation suit to establish not only that the challenged statements are false and defamatory, but also that the defendant made the statements with: i) actual knowledge of their falsity, or ii) reckless disregard for their probable falsity.  That is a heavy burden for a public official to meet and, not surprisingly, the actual malice standard greatly reduces the likelihood of a newspaper or other media entity being held legally responsible for libeling a public official.  Face it, as much as many people dislike the media, reporters and editors generally are not in the habit of saying things that they know for a fact to be untrue.

What does any of this have to do with freedom of information? I’m getting there, I promise.

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Moving Towards A “Proactive” Model For Freedom Of Information

Most freedom of information (“FOI”) statutes are “reactive” in nature.  That is, a person must affirmatively ask the government to disclose a document and the government must then respond.  But there is a growing trend towards a “proactive” FOI model, in which state and local (and federal) governments put their documents online, by posting them on a government website, for example.

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Executive Order No. 38–A Step In The Right Direction

I have not always been thrilled by some of current administration’s actions with respect to freedom of information, but if someone is going to criticize an administration, he or she also should give credit where credit is due. Read the rest of this entry »

Initial Thoughts On The Sandy Hook Summary Report

As promised, this afternoon Danbury State’s Attorney Stephen Sedensky released his report of the shootings at Sandy Hook Elementary School and the Lanza home on December 14, 2012.  The 44-page report is available here.  The 236-page appendix is available here.   Having read the report, I have a few reactions.  With one exception, my comments are limited to the legal implications of certain statements in the report.  Read the rest of this entry »

Discussing The Sandy Hook Report With Colin McEnroe

Colin McEnroe kindly invited me to speak with him this morning on his show on WNPR about the Danbury State’s Attorney’s highly anticipated summary report of the Sandy Hook investigation.  Click here to listen to a podcast of our conversation, which begins at approximately 21:10 minutes into the program.

Contempt For Freedom Of Information (And For The Freedom Of Information Commission)

Connecticut, we have a problem.

The media and commentators have consumed much digital ink over the past year discussing the General Assembly’s repeated efforts to undermine and curtail the Freedom of Information Act (“FOIA”). But that is not the problem of which I speak, although that is a big problem. The even bigger problem is that too many state and municipal agencies have nothing but contempt for the FOIA and the body that enforces it, the Freedom of Information Commission (“FOIC”). Even when the law regarding the disclosure of certain types of documents is clear, unambiguous and long-settled, too many state and local agencies simply refuse to produce documents that they are bound by law to disclose.

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