FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 11, 2004, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed January 16, 2004, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their request to inspect state police investigatory records.   

 

            3.  It is found that by letter dated January 1, 2004 the complainants requested access to the reports on the state police investigation into the homicides of Katherine Kleinkauf, Rachael Crum and Kyle Redway, who were killed in Guilford on December 27, 2000.

 

            4.  It is found that the respondent replied by letter dated January 6, 2004 that the records were exempt from disclosure pursuant to §1-210(b)(3), G.S., because “disclosure would be prejudicial to the pending prosecution of this matter in that among other adverse affects, it would compromise the jury selection process, potentially impact witness recollection and taint the jury pool.”

 

            5. It is found that the victims, a mother and her two young children, were found dead in their home on December 27, 2000, and that Jonathan Mills, the mother’s nephew, was placed under arrest by State Police and Guilford detectives, and charged with capital felony murder the next morning.

 

6.  It is found that, at the time of the request, Jonathan Mills was awaiting trial in New Haven Superior Court; and that, at the time of the hearing on this matter, jury selection had been completed, and the trial was scheduled for September 7, 2004.

 

7.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

            8.  Section 1-210(a), G.S., provides in relevant part:    

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

            9.  It is found that the respondent maintains the requested homicide investigation records.          

 

10.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11.  It is found that copies of certain of the requested records are contained in, and were obtained by the complainants from, court files.  For example, lengthy court hearings were held on the suppression of the defendant’s statements, and those statements were put into evidence in order to establish that they were voluntary.  Also, some information contained in witness statements was disclosed in court hearings.  However, most of the requested records have not been disclosed to the complainants.

 

12.  The respondent maintains that the requested records are exempt from disclosure pursuant to §1-210(b)(3)(B) and (C), G.S., which provide that disclosure is not required of:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action ….

           

            13.  The respondent’s burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).     

 

14.  Without reference to any specific records or how they would be used, the respondent maintains that it cannot disclose any records beyond what has been or will be disclosed in court proceedings, because of the potential for tainting the jury with extra-evidential materials.  For example, the respondent argues that, information contained in certain investigatory records might not be offered by either the state or the defendant, but, if read by a juror, might affect the result of the jury’s deliberations.  

 

            15.  In essence, the respondent’s argument is that records not offered into evidence must be withheld from the public at large, because disclosure might result in publication that could taint the jury with extra-evidential information.

 

16.  It is found that, in the ordinary course of the criminal trial of Jonathan Mills, the respondent expects that the state and the defendant will have conducted individual voir dire of jurors, that the court will have instructed jurors not to read newspapers or any other extra-evidential materials, or to discuss the case with other jurors, and that the court will check on the jurors at the commencement of the presentation of evidence to determine whether they have read or been influenced by any extra-evidential materials.

 

            17.  It is concluded that the court has existing safeguards against the juror misconduct such as reading newspaper reports of, or discussing, extra-evidential records, and that the Commission should not attempt to inject itself into those protective procedures by withholding the requested records from the general public.  Just as the rights of the public to inspect or copy public records are not limited by court discovery rules and orders, the rights of the public should not be limited by the court-ordered restrictions on jurors’ access to records.  See Chief of Police v. FOIC, 252 Conn. 377 (2000).

 

18.  It is concluded that the respondent’s speculation concerning the tainting of the jury with extra-evidential investigatory records, most of which apparently will not be used as evidence in the prosecution of Jonathan Mills, fails to satisfy the respondent’s burden of proof under §1-210(b)(3)(C), G.S. 

 

            19.  It is found that some of the requested records consist of statements of witnesses, and that most, if not all, are signed.

 

            20.  It is concluded that the signed statements of witnesses are exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

            21.  It is also concluded, however, that the respondent failed to prove any exemption to the disclosure of unsigned witness statements.

 

            22.  It is therefore concluded that the respondent violated §1-210(a), G.S., when it failed to provide access to the requested records, other than signed statements of witnesses.

 

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The respondent shall forthwith provide the complainants with access to inspect the requested records, other than signed statements of witnesses.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2004.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Michelle Tuccitto and

The New Haven Register

40 Sargent Drive

New Haven, CT 06511

 

State of Connecticut,

Department of Public Safety,

Division of State Police

c/o Lynn D. Wittenbrink, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-029FD/paj/11/1/2004