This post is about how General Statutes section 1-2z, which codifies the “plain meaning rule” of statutory interpretation, can lead to judicial interpretations of statutes that are completely at odds with what everyone knows the legislature actually intended when passing a law. To illustrate my point, I examine legislation enacted in 2013 concerning homicide photographs.
“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.
After a year of emotion clouding reason in the public debate over freedom of information in Connecticut, a ray of sanity broke through those clouds last Thursday.
Efforts to curtail public access to 911 calls and photographs of homicides have gained momentum since last June, culminating in a widely criticized set of recommendations proposed last month by the legislature’s “Task Force on Victim Privacy and the Public’s Right to Know.” The Task Force, which was weighted in favor of privacy advocates, and which never even considered the possibility of recommending that the legislature repeal anti-Freedom of Information Act (“FOIA”) legislation it passed in almost total secrecy last June, recommended that 911 emergency calls and other records be made largely exempt from disclosure under the FOIA.
The following editorial appeared in the Connecticut Law Tribune. It is republished here with the permission of the Trib.
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Prosecutors Shouldn’t Be Hiding Crime’s Records
December 17, 2013
Danbury prosecutor Stephen Sedensky and Michelle Cruz, a former prosecutor and State Victim Advocate, have recently been talking up the need to protect Newtown survivors from sights or sounds that bring back the events of that horrifying day. Read the rest of this entry »
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 »
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.
I had the honor and pleasure of appearing this morning as a guest on WNPR’s “Where We Live,” with host John Dankosky and regular guests Colin McEnroe, Mark Pazniokas and Matt Sturdevant. The topic: The long-delayed release by Danbury State’s Attorney Stephen Sedensky of the Sandy Hook investigation report.
In recent days Governor Malloy has expressed his extreme impatience and displeasure with the length of time it is taking Danbury State’s Attorney Stephen J. Sedensky III to release his own final report of the tragic events of December 14, 2012 at the Sandy Hook Elementary School in Newtown, CT. (I say “his own final report” because the State Police are preparing their own investigative report, as is customary. It needs to be released as well. A highly redacted “executive summary” by Mr. Sedensky is not sufficient.)
Governor Malloy has stated of the prosecutors in the Danbury State’s Attorney’s office, “They don’t work for me. If they did, this report would have been out already.”
Governor Malloy is not passing the buck. He is absolutely accurate in stating that he does not control Connecticut’s State’s Attorneys. But if the governor is not in charge of them, who is? Read the rest of this entry »
Connecticut is not the only place dealing with open government problems these days. While the State continues to wait (and wait and wait) for State’s Attorney Stephen Sedensky to release his report on the Sandy Hook massacre, the nation, indeed the world, continues to wait for the U.S. Senate Intelligence Committee to release its 6000+ page report on the torture program administered by the CIA during the Bush-Cheney administration. But as Andrew Sullivan explains on his blog, The Dish, resistance to the disclosure of the report appears to coming mainly from the Obama administration.
The media, on behalf of the citizens of Connecticut, should ask Danbury State’s Attorney Stephen J. Sedensky III the following two questions: 1) Do you believe that the children Adam Lanza murdered were, by virtue of his actions, victims of “child abuse,” as that term is defined under Connecticut law, and 2) do you believe that the contents of the Sandy Hook investigation report that you are preparing with the State Police contains information “relative to a child abuse investigation,” as that phrase is defined under state law?
If the answer to both questions is “yes,” and there is good reason to believe it may be, the public may never see the full Sandy Hook investigation report. At best, it will see a highly redacted document or a brief summary of its contents.