JOHN DRUMM, CHIEF OF POLICE, ET AL. v. FREEDOM OF INFORMATION COMMISSION
SC 20656
Supreme Court of Connecticut
February 27, 2024
Robinson, C. J., and McDonald, D‘Auria, Mullins, Ecker, Dannehy and Elgo, Js.*
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Syllabus
Pursuant to a provision of the Freedom of Information Act (
The plaintiffs, the town of Madison, its police department, and its chief of police, D, appealed to the trial court from the decision of the defendant, the Freedom of Information Commission, ordering the disclosure, pursuant to the Freedom of Information Act (FOIA), of certain documents contained in the police department‘s homicide investigation files to the intervening defendant, N, a filmmaker who was the complainant before the commission. The requested documents related to the 2010 homicide of B. Immediately after the homicide, DNA evidence was recovered, but the case went unsolved. In 2013, N and B‘s son, H, began working on a documentary about B‘s unsolved homicide. Between 2013 and 2019, H met with members of the police department, including S, three times in an attempt to obtain information about the investigation. During those meetings, H was left with the impression that the police department had classified B‘s homicide as a cold case. S indicated to H that, although the DNA evidence was sufficient to identify potential suspects, it was inadequate to prosecute any particular individual, and that the police department had had the same prime suspect since one week after the homicide. Nevertheless, D, citing the ongoing investigation, would not permit the police department to cooperate with the documentary project. As a result, N filed an FOIA request with the police department, which denied the request and declined to produce any of the requested documents on the ground that they were not subject to public disclosure pursuant to
- The plaintiffs could not prevail on their claim that the commission arbitrarily and capriciously had failed to articulate and apply the correct legal standard that governs claims of exemption under
§ 1-210 (b) (3) (D) :a. The trial court correctly concluded that, under the first prong of
§ 1-210 (b) (3) (D) , a “prospective law enforcement action” is a law enforcement action that is at least a reasonable possibility:Insofar as the FOIA does not define the term “prospective,” this court consulted dictionary definitions of the term and concluded that the statute was facially ambiguous, as plausible arguments could be made that the legislature, in enacting
§ 1-210 (b) (3) (D) , may have intended “prospective” to have a probabilistic meaning, such as potential, anticipated, expected, likely or possible, or to mean in prospect or pertaining to a prospect, as in prospective buyers.In resolving that ambiguity, this court adopted the probabilistic definition of “prospective” and agreed with the trial court‘s conclusion that a “prospective law enforcement action” refers to a future law enforcement action that has at least a reasonable possibility of occurring, meaning that the occurrence is more than theoretically possible but not necessarily likely or probable.
Moreover, although the law enforcement exception plausibly could be read to impose either a more exacting standard, such as by requiring that the police show that an arrest or prosecution is pending or likely, or a less demanding standard, such as by requiring that the police demonstrate only a speculative or theoretical possibility of some future law enforcement action, the reasonable possibility standard was the most reasonable reading of the law enforcement exception insofar as it struck a proper balance between the competing public interests underlying the FOIA, namely, fostering openness and transparency while protecting important governmental functions that demand a degree of confidentiality.
Furthermore, application of the rules of statutory interpretation to a related FOIA provision (
§ 1-215 (b) (3) ), which exempts from disclosure information relating to records of arrest that may “prejudice a pending prosecution or a prospective law enforcement action,” and the legislative history of§ 1-210 (b) (3) (D) provided further support for the reasonable possibility standard and ruled out the most extreme readings of the term “prospective.”b. This court clarified that, under the first prong of
§ 1-210 (b) (3) (D) , a respondent before the commission must establish only that it is at least reasonably possible that the information contained in a requested document will “be used in” support of an arrest or prosecution:In Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100 (1998), the Appellate Court stated in dictum that the law enforcement exception is satisfied when there is an evidentiary showing that the requested records are going to be used in a law enforcement action, and Superior Court judges and the commission have relied on that language to require a showing that it is at least probable, if not certain, that the subject records would be used for an arrest or prosecution.
Construing the statute to create a coherent and cohesive scheme, this court presumed that the same standard must govern both the “to be used” and the “prospective law enforcement action” elements of the first prong of the statutory law enforcement exception, and, accordingly, it overruled the Appellate Court‘s dictum in Dept. of Public Safety to the extent that it imposed a standard in connection with the “to be used” element that was different from the reasonable possibility standard that applied to the “prospective law enforcement action” element.
c. This court rejected the policy arguments advanced by the plaintiffs and the amicus curiae, the Division of Criminal Justice:
The division‘s claim that the reasonable possibility standard should be deemed satisfied when a law enforcement investigation is open, a suspect has been identified, and no insurmountable obstacles exist to a future arrest or prosecution was not supported by the language or legislative history of the statute, and that proposed rule followed a categorical approach that failed to account for the specific facts and context of each individual case, placed too much weight on the law enforcement side of the scale, precluded the public from exercising any effective oversight in all cases in which any applicable statute of limitations has not run, and did not account for the fact that, with the passage of time, it becomes increasingly likely that openness, rather than secrecy, is what will unearth the elusive lead that will help the police solve the case.
Moreover, the claim that, as a matter of public policy, courts and the commission should defer to the expertise of law enforcement agencies or officials when construing or applying the law enforcement exception was not supported by the statutory scheme or the legislative history, especially in view of the fact that the legislature, which has been clear in the context of exceptions to the disclosure of records when it intends to give the agency possessing the subject records increased deference, did not do so when it drafted
§ 1-210 (b) (3) .d. This court articulated various factors for determining, in the context of the crime of murder and other crimes that involve lengthy or no statutes of limitations, whether a future law enforcement action is reasonably possible:
This court agreed that the following seven, nonexclusive factors identified by the trial court were relevant to a determination of whether a future law enforcement action is reasonably possible: the length of time that has passed since the crime; the length of time that has elapsed since the law enforcement agency last obtained significant new evidence or leads; whether the investigation, even if officially open, is classified as a cold case; the number of investigators presently assigned to the investigation; the amount of time investigators are committing to the case; whether the agency has a suspect and, if so, whether the agency‘s suspicion is supported by more than speculation; and whether advances in science or technology, such as improvements in DNA analysis, may help solve the crime.
This court also noted that those individual factors may vary in importance from case to case and are not intended to serve as a complete or mechanistic checklist, and sight should not be lost of the two fundamental issues that underlie the factors, namely, whether the law enforcement agency continues to investigate the crime actively and earnestly, and, if the investigation has gone cold, whether there remains a reasonable possibility that the investigation ultimately will culminate in some law enforcement action.
- The existing administrative record was not sufficient to permit this court to apply the newly adopted reasonable possibility standard as a matter of law, and, accordingly, this court remanded the case for further proceedings before the commission:
The commission‘s finding that the police had not identified a suspect was without support in the record and was contradicted by S‘s and H‘s testimony that the police department had enough DNA to develop suspects and that it had a prime suspect, the erroneous finding was apparently important to the commission‘s law enforcement exception analysis insofar as the commission had relied on that finding to distinguish the present case from previous cases in which it had found that release of requested records would be prejudicial to a prospective law enforcement action, and, accordingly, this court concluded that the commission must be afforded an opportunity on remand to consider what weight and importance, if any, to give to the testimony that the police department identified a prime suspect early in the investigation.
Moreover, the commission‘s final decision could be understood to require a probability, even a certainty, that the requested records will be used for an arrest or prosecution, a stringent standard that is not consistent with the plain language of the statute, and, because the commission‘s factual findings, such as that the plaintiffs’ claims were wholly speculative, were conclusory and may be tied up with the legal standard that it applied, this court could not apply the new reasonable possibility standard to the existing record without running the risk of substituting its judgment for that of the commission as to the weight of the evidence on questions of fact, and, accordingly, the commission must be provided with the opportunity on remand to assess whether some law enforcement action still remains a reasonable possibility.
Furthermore, in concluding that a law enforcement action was not reasonably possible, the trial court relied on certain statistical evidence regarding the probability of a prosecution in cold murder investigations and the extent to which public disclosure of information in such cases would improve the likelihood of an arrest and prosecution rather than prejudice that outcome, but the commission was the fact finder, and it should have the opportunity on remand to review any available statistical data in the first instance, with the input from the parties and any expert testimony they wish to offer, before making relevant findings.
- Although the trial court did not address the commission‘s determination that the plaintiffs had failed to establish that disclosure of the requested records would be prejudicial to a prospective law enforcement action, this court declined to give the trial court the opportunity on remand to consider the prejudice prong of
§ 1-210 (b) (3) (D) because, under the circumstances of the present case, further review by the trial court was unnecessary:The two prongs of the law enforcement exception, although distinct, are not wholly unrelated, several of the factors that the trial court identified as relevant to the prospective law enforcement action prong of
§ 1-210 (b) (3) (D) , such as the existence of a suspect and the availability of DNA evidence for future testing, also are relevant to the issue of prejudice, and the commission‘s reconsideration of these matters will necessarily bear on prejudice, as well.Moreover, it seemed likely that the commission also applied the wrong legal standard to the prejudice prong insofar as it improperly conflated the two prongs of the statutory exception and improperly relied on S‘s offhand statement that he could “go on with speculating” as to how the requested information might be used, and, on remand, any documents that the plaintiffs submit for in camera review as containing potentially prejudicial information should be reviewed by the commission under its established standards.
Argued October 19, 2022-officially released February 27, 2024
Appeal from the decision of the defendant ordering the disclosure of certain records, brought to the Superior Court in the judicial district of New Britain, where the court, Klau, J., granted the motion to intervene as a defendant filed by Anike Niemeyer; thereafter, the case was tried to the court, Klau, J.; judgment for the defendant, from which the plaintiffs appealed. Reversed; further proceedings.
Floyd J. Dugas, for the appellants (plaintiffs).
Valicia Dee Harmon, commission counsel, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (defendant).
Stephanie Rice, law student intern, with whom were David A. Schulz and, on the brief, Emile Shehada, law student intern, for the appellee (intervenor Anike Niemeyer).
Matthew A. Weiner, former assistant state‘s attorney, and Sarah Hanna, former senior assistant state‘s attorney, filed a brief for the Division of Criminal Justice as amicus curiae.
Dan Barrett and Elana Spungen Bildner filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.
Opinion
After a contested hearing, the commission ruled in favor of Niemeyer and ordered the respondents to provide copies of the police department‘s investigation files. Specifically, the commission rejected the respondents’ contention that the request fell within the exception from disclosure of law enforcement records pursuant to
The trial court affirmed the decision and disclosure order of the commission and dismissed the respondents’ appeal. In so doing, the trial court clarified that the statutory phrase “prospective law enforcement action” refers to a future law enforcement action, i.e., an arrest [or] prosecution, the occurrence of which is at least a reasonable, not a mere theoretical, possibility.” Then, after applying this standard, the trial court rejected the respondents’ contentions that the decision of the commission (1) was arbitrary and capricious, insofar as the legal standard applied by the commission was novel, incorrect, or insufficiently articulated, and (2) rested on factual findings that were clearly erroneous and not supported by substantial evidence. We agree with the trial court that, in order to satisfy their burden of showing that the law enforcement exception applies, the respondents were required to demonstrate that a future law enforcement action was a reasonable possibility. We also conclude that the case must be remanded to the commission for further proceedings to allow the commission to apply that standard. Accordingly, we reverse the judgment of the trial court.
I
The record reveals the following relevant facts and procedural history. On
The medical examiner determined that the victim died from multiple blunt and sharp force injuries, leading the examiner to deem her death a homicide. DNA matching the male Hamburg lineage was found under the victim‘s fingernails. After the crime, the police department issued press reports stating that it was looking for a Hamburg relative for questioning. That relative submitted DNA for testing, but the police did not consider the DNA match strong enough to justify an arrest warrant. The victim‘s homicide has yet to be solved, and the case remains open. The department has not held any press conferences, published any press releases, publicly named or cleared any suspects, or otherwise updated the public on the case since March, 2010.
In 2013, Hamburg and Niemeyer began working on a documentary film about the victim. In connection with that documentary, Hamburg met with representatives of the police department in 2013, 2016, and 2019 in an ongoing attempt to obtain information about the homicide investigation. At the initial, February, 2013 meeting, two Madison police detectives, Detective Sergeant Neal Mulhern and Detective Christopher Sudock, indicated that they were still pursuing leads and actively working on the case. At that time, they indicated that, if the case ever went cold, they might be open to doing an interview or releasing a statement regarding the investigation in cooperation with the documentary.
In October, 2016, Hamburg again met with Mulhern and Sudock, as well as with Drumm and two cold case detectives. At that time, Hamburg was under the impression that the police department had run out of resources and leads and, therefore, had classified the victim‘s homicide as a “cold case.” The officers indicated that the cold case unit of the Office of the Chief State‘s Attorney was reviewing the case.2 The detectives again inquired about Hamburg‘s male relative.
In June, 2019, Hamburg requested and was granted a third meeting, this time with only Sudock. Sudock indicated that the police department had no unidentified DNA related to the case, that the DNA test kits that had been used were faulty or expired, and that the department lacked the resources to run additional tests. He also indicated that, although the existing DNA evidence was sufficient to identify potential suspects, it was inadequate to initiate a prosecution against any particular individual. Sudock further indicated
Drumm did not give his approval, citing the ongoing investigation as the reason. Consequently, the police department declined to provide further information or assistance. As a result, in October, 2019, Niemeyer filed an FOIA request with the department. Niemeyer‘s request sought copies of five categories of documents: all investigatory records, witness statements, interrogation records, and crime scene recordings related to the homicide, as well as a transcript or recording of the 911 call. The request encompasses hundreds, if not thousands, of individual documents, including photographs.
The police department denied the request and initially declined to produce any documents. The department contended that the requested documents were not subject to public disclosure pursuant to
The commission heard the matter as a contested case in February, 2020. By that time, nearly one decade had passed since the homicide. The only evidence the respondents offered at the hearing was Sudock‘s testimony.
With respect to the first prong of
Sudock further acknowledged that several “cold case looks” at the file since 2016 had failed to turn up any potential investigative steps or additional individuals to interview. He conceded having told Hamburg that “[n]obody has made a phone call . . . or written an anonymous letter, [or] anything; we‘ve got nothing. We‘ve done hundreds and hundreds and hundreds of interviews. . . . [The state forensic science laboratory] . . . [has] identified suspects, but [the] DNA is not enough to go forward with the arrest warrants, or anything like that.” He also conceded that, at the June, 2019 meeting, he might have told Hamburg that “the case is not moving forward and that it‘s held up . . . .”
Sudock also confirmed having previously told Hamburg something to the effect of, “I need something to investigate, and . . . right now, I‘m stuck . . . .”
Sudock also testified, however, that the investigation remained open and active. He
As recently as the week prior to the hearing, Sudock testified, there had been new activity in the case. He specifically stated that, “[l]ast week, we had information on this investigation,” but he declined to answer any questions about that development.
Looking to the future, Sudock testified that his ongoing work on the homicide investigation includes analyzing evidence, monitoring changes in forensic technology, and pursuing possible leads. He suggested that unspecified new DNA technologies might help the police make an identification. He expressed no opinion, however, as to the likelihood of, or potential timetable for, that development in this particular case.
With respect to the second, prejudice prong of
Finally, when asked to provide additional information as to the types of law enforcement actions that might be prejudiced by release of the victim‘s homicide files, and the nature of the potential prejudice, Sudock responded: “I can‘t say that there‘s something in a report that‘s viewed [as] insignificant now that may be important tomorrow, [one] year from now, five years from now. . . . I don‘t know what it could be. . . . [T]here could be somebody out there [who] has information [who is] holding on to that information because of a fear . . . and now a documentary comes out, and now they get more fear . . . . I just don‘t know. There‘s so much information there. It could be a search warrant; it could be an arrest warrant. [It] could be another scene. I mean, there‘s so many things that it could be. I can go on . . . speculating, but I don‘t know at this point in time. . . . The information . . . in my opinion should . . . remain with the police department and not be public because it‘s only going to hamper any further investigative tool or technique that we would have in the future.”
Following the hearing, the respondents reconsidered their position, in part, and released the 911 telephone call recording
The respondents appealed from the commission‘s decision to the trial court pursuant to the Uniform Administrative Procedure Act (UAPA). See
II
On appeal, the respondents’ primary claim is that the commission arbitrarily and capriciously failed to articulate and apply the correct legal standard that governs claims of exemption under
A
The following well established principles guide our interpretation of the law enforcement exception to the FOIA. “Under the UAPA, it is [not] the function of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Even for conclusions of law, [t]he court‘s ultimate duty is only to decide whether, in light of the
“Cases that present pure questions of law, however, invoke a broader standard of review . . . . [T]he traditional deference accorded to an agency‘s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] a governmental agency‘s time-tested interpretation . . . . Even if time-tested . . . an agency‘s interpretation of a statute [is subject to deference] only if it is reasonable . . . [as] determined by [application of] our established rules of statutory construction.” (Citation omitted; internal quotation marks omitted.) Id., 379-80.
It is well established that
It also is settled law that the custodians of the records-in this case, the respondents-bear the burden of establishing that an FOIA exception applies. “[T]he overarching legislative policy of [the FOIA] is one that favors the open conduct of government and free public access to government records. . . . [I]t is well established that the general rule under the [FOIA] is disclosure, and any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the [FOIA]. . . . [Thus] [t]he burden of proving the applicability of an exception [to disclosure under the FOIA] rests [on] the party claiming it.” (Citation omitted; internal quotation marks omitted.) Lieberman v. Aronow, 319 Conn. 748, 754-55, 127 A.3d 970 (2015).
B
We begin our analysis of the law enforcement exception with the plain language of the statute. See
1
The meaning of the first prong of
Second, prospective can mean “in prospect” or “pertaining to a prospect,” as in “prospective buyers.” See, e.g., Webster‘s New Universal Unabridged Dictionary, supra, p. 1445 (“pertaining to a prospect” or “perspective“). The term is used in that manner both with respect to identified or pending prospects, as when we say that “the prospective buyers have been preapproved for a mortgage,” as well as with possible or potential prospects, as when we say that “prospective buyers will find the bonus room a nice feature.”
Third, prospective can mean looking forward in time or effective in the future. See, e.g., Ballentine‘s Law Dictionary (3d Ed. 1969) p. 1014 (“[l]ooking to the future“). This definition is commonly used in distinguishing statutes that apply retroactively from those that have solely prospective effect; see, e.g., id.; Thompson v. Hagan, 96 Idaho 19, 25, 523 P.2d 1365 (1974); and we fail to see how the legislature plausibly could have intended this definition to govern the law enforcement exception, insofar as arrests and prosecutions cannot be retrospective or past oriented in the way that laws can be. Cf. Brayman Construction Corp. v. Commonwealth, Dept. of Transportation, 608 Pa. 584, 598 n.10, 13 A.3d 925 (2011) (concluding that ” ‘effective in the future’ ” definition of “prospective” could not be applicable in context of case).
A plausible argument can be made, though, that either of the first two definitions is what the legislature intended, and, even within those definitions, there is a
The trial court adopted the first, probabilistic definition, concluding that the statute, by its express terms, requires a prediction as to the probability of a future law enforcement event. Recognizing that this definition of “prospective” includes within it a broad range of probabilities, lying along a spectrum, the trial court rejected a legal standard that lies at either extreme. The court reasoned that requiring the police to demonstrate that a law enforcement action is likely or probable would impose an unreasonable burden but that requiring only a speculative possibility would allow the exception to swallow the rule. Accordingly, the court concluded that a prospective law enforcement action is one that is at least a reasonable possibility, which, it explained, is more than theoretically possible, but not necessarily likely or probable, to occur.6
We agree with the trial court that this is the most reasonable reading of the statute. Because
At the same time, we agree with the trial court that requiring that the police demonstrate only a remote, speculative, or theoretical possibility of some future law enforcement action would permit the exception to swallow the rule and would fly in the face of the well established principle that FOIA exceptions are to be narrowly construed. We have recognized that “[t]he overarching legislative policy of the [FOIA] is one that favors the open conduct of government and free public access to government records. . . . The sponsors of the [FOIA] understood the legislation to express the people‘s sovereignty over the agencies [that] serve them . . . and this court consistently has interpreted that expression to require diligent protection of the public‘s right of access to agency proceedings. Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed.” (Internal quotation marks omitted.) Stamford v. Freedom of Information Commission, 241 Conn. 310, 314, 696 A.2d 321 (1997). With the thumb on the scale in favor of disclosure, it would be inconsistent with the purpose of the FOIA to conclude that the law enforcement exception applies upon a showing that a law enforcement action is only remotely or theoretically possible.
Further support for the reasonable possibility standard can be found in a related statute within the FOIA.
Insofar as the statutory language is ambiguous, we also may consider the legislative history of
The legislative history of
Indeed, the authors of
When this court previously reviewed this legislative history, it observed that, although the FOIA evidences “a strong legislative policy in favor of the open conduct of government and free public access to government records,” it “does not confer [on] the public an absolute right to all government information.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). Rather, this court concluded, this legislative history “reflects a legislative intention to balance the public‘s right to know what its agencies are doing, with the governmental and private needs for confidentiality.” Id.
With respect to the exceptions to the disclosure requirement, the legislative history reinforces this idea that the legislature sought to strike a balance: open access to public records must be balanced against certain compelling public interests in confidentiality. See, e.g., 18 S. Proc., supra, p. 2324, remarks of Senator Julianelle; see also, e.g., 18 H.R. Proc., supra, p. 3910, remarks of Representative Burke (“There should be no mistake about the legislative intent of this bill. . . . [A]ll records of all governmental agencies shall be in the public domain with few and very precise exceptions.“).
Both the text of the statute and its legislative history thus rule out the most extreme readings of the term “prospective“-requiring that the law enforcement agency establish that there is a pending law enforcement action or that it demonstrate that there is a mere theoretical possibility of one. With respect to the remaining possible meanings of “prospective“; i.e., probable, likely, or possible; we rely on the principle that the FOIA effects a balance between the competing interests and conclude that the legislature intended the law enforcement exception to apply only when a law enforcement agency is able to make the threshold showing that an arrest or prosecution is at least reasonably possible. It need not be probable or likely, but it must be more than only remotely or theoretically possible. This standard effectuates the legislative intent of providing open access to public records without unduly hamstringing ongoing investigations.
2
The law enforcement exception is limited to records “to be used” in a prospective law enforcement action.
We agree with the trial court that the Appellate Court‘s analysis of the law enforcement exception in Dept. of Public Safety was dictum. That case involved an accidental drowning, and, by the time the document request had been made, it was clear that there had been no criminal conduct. See Dept. of Public Safety v. Freedom of Information Commission, supra, 51 Conn. App. 103. A law enforcement action was neither pending nor even reasonably possible. The statement of the legal standard in Tuccitto was likewise dictum, although for the opposite reason. In that case, a prosecution was pending, and the only question was whether, under the prejudice prong of
In any event, we disagree with the standard enunciated in Dept. of Public Safety. It would make little sense for the legislature, having required only that a prospective law enforcement action be reasonably possible, to then impose a far more exacting requirement under which respondents must demonstrate that it is probable or certain that they will use the requested information in such an action. When possible, we must construe statutes to create a coherent and cohesive scheme. See, e.g., State v. Victor O., 320 Conn. 239, 249, 128 A.3d 940 (2016). In the absence of any further guidance, we will presume that the same standard gov-erns both elements of the first prong of the statutory exception, and that the respondents must establish for any requested document only that it is at least reasonably possible that the information contained therein will be used in support of an arrest or prosecution. To the extent that Dept. of Public Safety imposed a different standard, it is overruled.
C
We next consider certain policy arguments advanced by the respondents and/or the Division of Criminal Justice as amicus curiae. The division contends that the reasonable possibility standard should be deemed satisfied whenever a law enforcement “investigation is open, a suspect has been identified, and no insurmountable obstacles exist to a future prosecution.” In support of this three factor standard, the
We recognize that some added leeway must be afforded for investigations of crimes such as homicide. The division, however, fails to identify any support for its proposed rule in the language or legislative history of the statute. Moreover, as discussed, in construing FOIA exceptions, we long have eschewed a categorical approach that fails to account for the specific facts and context of each individual case. See, e.g., Director, Retirement & Benefits Services Division, Office of the Comptroller v. Freedom of Information Commission, 256 Conn. 764, 779, 775 A.2d 981 (2001). The division‘s proposed rule would follow that impermissible path, treating the identification of a suspect as dispositive, for example, without considering key factors such as the strength of the evidence pointing to that suspect and whether, with the passage of significant time, the early identification of a suspect may become less meaningful.
The same can be said for the fact that an investigation remains open and free of insurmountable obstacles to a future prosecution. As a result, we are not prepared to say that those three factors, without more, will always satisfy the reasonable possibility standard. Depending on the context, they may establish no more than a theoretical possibility. As we explained, a theoretical possibility standard would not be consistent with the overarching principles underlying the FOIA, would upset the careful balance the legislature sought to strike, and would be incompatible with what we believe to be the fairest reading of the statutory requirement that the information being sought is to be used in a prospective-that is, at least reasonably possible-law enforcement action.
Moreover, to the extent that policy considerations such as those raised by the division are relevant,9 we are concerned that this interpretation of the statute places too much weight on the law enforcement side of the scale. Adopting the rule advanced by the respondents and the division would preclude the public from exercising any effective oversight, not only in murder cases, but in all cases in which any applicable statute of limitations has not run. This position also ignores the fact that the legislature through this exception sought to balance law enforcement‘s interests in solving crimes and bringing wrongdoers to justice against more than just the public‘s interests in transparency and oversight. With the passage of time, it becomes increasingly likely that openness, rather than secrecy, is what will unearth that elusive lead that will help the police solve the case. As the trial court explained, after having reviewed the relevant research, “a fresh pair of eyes“-potentially millions of eyes in the age of Internet crowdsourcing-“is far more likely to improve the odds of an arrest and successful prosecution than it is to prejudice that outcome.” (Internal quotation marks omitted.)
Although the division tells a compelling tale of cases in which the police were able
The respondents and the division also contend that, as a matter of public policy, we should defer to the
expertise of law enforcement agencies and officials in such matters. Once again, however, nothing in the statutory scheme or the legislative history gives any indication that the legislature intended that the commission should defer to the expertise of law enforcement agencies or officials when construing or applying the law enforcement exception. Quite the contrary, in the context of exceptions to disclosure of records, the legislature has been clear when it intends to give the agency possessing the subject records increased deference. Several FOIA exceptions expressly provide that the commission must defer to the determination of the respondent agency or official as to whether the exception is satisfied. See, e.g.,D
We next consider how the reasonable possibility standard that we articulated applies to law enforcement records compiled in connection with the investigation of a murder, especially in cases, such as the present case, in which years have passed and the leads are few and far between. Although such cases implicate the same balancing of interests present in any FOIA request for law enforcement records, they also involve distinct considerations. In particular, the fact that there is no statute of limitations means that unsolved murder investigations may remain open, at least nominally, forever. Most crimes, by contrast, feature a statute of limitations of five years or less, which means that, by the time an investigation has gone cold, a law enforcement action will no longer be possible. See
We emphasize that the commission has publicly announced its strong inclination to trust the representations of law enforcement officials in these matters.11 At the same time, however, the commission has taken seriously this court‘s repeated admonition that “the claimant of [an FOIA] exemption [must] provide more than conclusory language, generalized allegations or mere arguments of counsel.” (Internal quotation marks omitted.) Director, Retirement & Benefits Services Division, Office of the Comptroller v. Freedom of Information Commission, supra, 256 Conn. 773; see, e.g., Hartford v. Freedom of Information Commission, 201 Conn. 421, 434-35, 518 A.2d 49 (1986) (“[t]he commission is not obliged to accept an agency‘s generalized and unsupported allegations relating to documents claimed to be exempt from disclosure” (internal quotation marks omitted)).
For murder and, presumably, other crimes that involve lengthy or no statutes of limitations,12 the trial court adopted and applied a nonexclusive, multifactor
Pursuant to this multifactor test, the commission must consider, among other things, “(1) the length of time that has elapsed since the commission of the crime; (2) the length of time that has elapsed since the law enforcement agency last obtained significant new evidence or leads, i.e., whether the agency has effectively exhausted all investigatory leads; (3) whether the agency has classified the investigation, even if technically open, as a cold case or the functional equivalent thereof; (4) the number of investigators currently assigned to the investigation; (5) the amount of time investigators currently commit to the investigation; (6) whether the agency has a suspect and, if so, whether the agency‘s suspicion is supported by more than speculation; [and] (7) whether advances in [science] or technology, such as advances in DNA analysis, may lead to new evidence or permit the fruitful reexamination of existing evidence.”
Other courts have considered similar factors in comparable cases. See, e.g., Chastant v. Prudential Ins. Co. of America, Docket No. 11-CV-626, 2011 WL 4007863, *4-5 (W.D. La. September 8, 2011) (applying Louisiana law); see also, e.g., Dept. of Kentucky State Police v. Teague, Docket No. 2018-CA-000186-MR, 2019 WL 856756, *2 (Ky. App. February 22, 2019). In our view, such factors should be helpful to the commission in carrying out the legislative intention that the commission strike a balance between the public‘s right to access government information and the legitimate interests of law enforcement agencies and the state in investigating and prosecuting crimes.
In applying these factors, both independently and in relation to each other, sight should not be lost of the two fundamental questions that underlie them. First, does the law enforcement agency continue to actively and earnestly investigate the crime, or has the investigation, although technically still open, essentially gone cold? In the initial months and years following a homicide, when significant resources are being dedicated to a case and new leads are regularly pursued, it generally is not difficult for a law enforcement agency to establish that arrest and prosecution are at least reasonably possible. The commission has deferred heavily to the representations of law enforcement officials under such circumstances. See, e.g., Hoda v. Chief, New Haven Police Dept., Freedom of Information Commission, Docket No. FIC 2007-143 (January 23, 2008) (finding that law enforcement exception was satisfied when FOIA request was made approximately five months after murder and police were actively pursuing leads and suspect); Rouen v. Chief, Groton Police Dept., Freedom of Information Commission, Docket No. FIC 2006-064 (January 24, 2007) (finding that law enforcement exception was satisfied when FOIA request was made approximately thirteen months after murder and police were still actively investigating); Poitras v. Chief, Portland Police Dept., Freedom of Information Commission, Docket No. FIC 1998-085 (August 12, 1998) (deferring to state‘s attorney and finding that law enforcement exception was satisfied when
At some point, however, when years have passed, solid leads have dried up, and the case has been classified (whether formally or de facto) as cold, it may no longer be reasonable for the commission to defer to representations of law enforcement agencies, without more. The commission has long recognized this as well. See, e.g., Estate of Mazzotta v. Chief, Middletown Police Dept., Freedom of Information Commission, Docket No. FIC 2012-033 (November 14, 2012) (requiring disclosure of records in homicide investigation that had gone dormant after nine years); Gura v. Chief, New Haven Police Dept., Freedom of Information Commission, Docket No. FIC 2001-147 (February 13, 2002) (requiring disclosure three years after homicide when respondent merely represented that investigation was ongoing); see also, e.g., Donovan v. Greenwich Police Dept., Freedom of Information Commission, Docket No. FIC 87-173 (February 26, 1992) (following in camera review, requiring disclosure eight years after homicide, even though investigation remained active). It is largely in the gray areas between these two sets of cases that specific factors, such as those identified by the trial court, will be most illuminating.
Second, once a case has gone cold, does there remain a reasonable possibility that the investigation ultimately will culminate in some law enforcement action? This might be true, for example, if the police recently have unearthed significant new evidence or leads, if they can identify emerging technologies with the reasonable potential to move the case forward, or if other factors, such as the existence of evidence tending to incriminate a particular suspect, suggest a reasonable possibility of a law enforcement action. The commission is free to conclude, consistent with its prior practice, that the longer an investigation has been cold, in name or effect, the greater the burden on the respondents to affirmatively demonstrate that a prospective law enforcement action remains a reasonable possibility.
III
We now consider whether the existing administrative record is sufficient to permit this court to apply the newly adopted reasonable possibility standard as a matter of law. The trial court, in affirming the decision of the commission, concluded, as a matter of law, that only one outcome was possible. The court concluded that the case had gone cold and that the respondents had failed to provide any testimony or other evidence, beyond pure speculation, that would satisfy the new standard that it had articulated and to establish anything more than a remote or speculative possibility that the investigation will bear fruit. The court also concluded that, in light of the available statistics, there is no more than a theoretical possibility that the police will bring the perpetrator to justice when a case has been cold for this many years.
On the basis of the record, we do not agree. The respondents bore the burden before the commission of establishing not only that there was a reasonable possibility that the investigation will result in a law enforcement action, but also that, for each individual document or set of documents sought to be withheld, it is reasonably possible that the requested files contain information that will be used in such a law enforcement action and that disclosure of that information would be prejudicial.
In support of their assertion that the law enforcement exception applied, the respondents established the following through Sudock‘s testimony: The case remains open, and the police have identified
Although the commission found this evidence to be insufficient to satisfy the respondents’ burden, we find it significant that the commission‘s final decision was predicated, as we explain hereinafter, on the clearly erroneous factual finding that the police department had not identified a suspect and, potentially, on the application of a standard that required the respondents to demonstrate either an actual or pending law enforcement action. Because application of the reasonable possibility standard that we adopted in this opinion is fact intensive, we conclude that the case must be remanded to the commission for further proceedings. See, e.g., Great Plains Lending, LLC v. Dept. of Banking, 339 Conn. 112, 131-32, 143, 157, 259 A.3d 1128 (2021) (remand to Banking Commissioner for further proceedings was required to determine whether plaintiff was entitled to status as “arm of the tribe” for purposes of tribal sovereign immunity because minimal evidence in administrative record was insufficient to permit court to apply newly adopted standard as matter of law); Ann Howard‘s Apricots Restaurant, Inc. v. Commission on Human Rights & Opportunities, 237 Conn. 209, 233, 676 A.2d 844 (1996) (remanding for further proceedings in which complainant would have opportunity to present additional admissible evidence). We reach this conclusion for three reasons.
A
First, we agree with the respondents that the commission‘s decision rested in part on clearly erroneous factual findings for which there was no substantial evidence in the record. “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency‘s findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Internal quotation marks omitted.) Amaral Bros., Inc. v. Dept. of Labor, 325 Conn. 72, 84-85, 155 A.3d 1255 (2017). In the present case, the commission twice stated in its decision that “the . . . police [department has] not identified any suspects . . . .” This finding was without support in the record and, in fact, was contradicted by the undisputed testimony of both witnesses.13
Sudock testified that the police department had enough DNA to develop suspects. He further testified that the department had long been close to solving the crime and that it had a “number one” suspect. He confirmed specific details about that suspect, most notably that the suspect‘s cell phone had been uncharacteristically turned off during a twenty-four hour period around the time of the homicide.
Hamburg corroborated Sudock‘s testimony. He testified that he had been informed that the DNA evidence in the police department‘s possession “was enough to develop suspects . . . .” He recalled that, during the 2019 meeting with Sudock, he was informed that the department had had the same “number one” suspect since March 7, 2010, and he indicated that Sudock had asked repeatedly about one relative‘s
In the absence of any conflicting testimony or determination that both witnesses lacked credibility, the commission‘s statement that the police department had not identified any suspects in the homicide was clearly erroneous. Although the department may not have publicly named any suspects, it had identified at least one.14
The lack of evidence to support the commission‘s findings, however, does not end our inquiry. “Substantial prejudice [arising from the commission‘s clearly erroneous findings] must be affirmatively shown.” (Internal quotation marks omitted.) Lawrence v. Kozlowski, 171 Conn. 705, 714, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see also
The commission distinguished the present case from two previous cases in which it had found that release of requested records would be prejudicial to a prospective law enforcement action, largely on the basis that, in those cases, the police department had identified one or more suspects. See footnote 14 of this opinion. The erroneous statement that the department had not identified any suspects thus appears to have been important to the commission‘s determination that the department failed to provide nonspeculative evidence that the requested records would be used in, and their disclosure would be prejudicial to, a prospective law enforcement action. As we noted in part II D of this opinion, the identification of a suspect is one of the key factors that the commission may consider when determining whether a law enforcement action is a reasonable possibility. Accordingly, the case must be remanded to give the commission an opportunity to consider what weight and importance, if any, to give to the testimony that the department identified a prime suspect early in the investigation.15
Second, although it is not entirely clear, it does not appear that the commission applied the reasonable possibility standard in the present case. In its final decision, the commission repeatedly identified as its basis for declining to find that the respondents had established that there was a prospective law enforcement action their failure to present evidence of a “specific,” “expected,” “identified,” or “anticipated” law enforcement action. The commission‘s proposed final decision, which was prepared by the hearing officer, went even further, stating that Sudock “could not identify an actual prospective law enforcement action and could only provide speculation.” (Emphasis added.) Although the commis-sion ultimately removed the word “actual” from its final decision, it is unclear whether this represented a substantive change. In short, the commission‘s final decision could be understood to require a probability, even a certainty, that the requested records will be used for an arrest or prosecution.16 Such a stringent standard is not consistent with the plain language of the statute.
Moreover, although deference is due to the commission‘s factual findings, in this instance, its findings, such as that the respondents’ claims were wholly speculative, are conclusory and may well be tied up with the legal standard that it applied. Application of the new standard to the existing record, therefore, would run the risk of this court‘s “substitut[ing] its judgment for that of the agency as to the weight of the evidence on questions of fact,” contrary to the requirements of
C
Third, we note that, in concluding that a law enforcement action was not reasonably possible, the trial court relied on a body of empirical, statistical evidence suggesting that the probability of a prosecution in cold murder investigations such as this “approaches zero” and that, at some point, “a ‘fresh pair of eyes’ . . . is far more likely to improve the odds of an arrest and successful prosecution than it is to prejudice that outcome.” The commission was the finder of fact in this matter, however, and it should have the opportunity to review any available statistical data in the first instance, with the input of the parties and any expert testimony they care to submit, before making relevant findings.17 Likewise,
IV
There remains the issue of prejudice. The commission determined not only that the respondents had failed to establish that any requested records were to be used in a prospective law enforcement action, but also that they had not established that disclosure of the records would be prejudicial to such action. The respondents challenged both determinations on appeal to the trial court. Having affirmed the commission‘s decision on the basis of the former determination, the trial court declined to address the latter.
The respondents cannot prevail unless they satisfy both prongs of the statutory exception. See, e.g., Commissioner of Public Safety v. Freedom of Information Commission, supra, 312 Conn. 545 n.31. So long as the commission‘s determination as to a lack of prejudice stands, the respondents can obtain no practical relief with respect to the issue of a prospective law enforcement action, and any proceedings on remand would be moot. See, e.g., In re Jorden R., 293 Conn. 539, 557, 979 A.2d 469 (2009).
Ordinarily, then, our conclusion that the commission failed to properly analyze the prospective law enforcement action prong of the statute would require that we remand the case to the trial court to give it the opportunity to consider the prejudice issue. Cf. Equity One, Inc. v. Shivers, 310 Conn. 119, 125 n.2, 74 A.3d 1225 (2013). Under the circumstances of the present case, however, we conclude that further review by the trial court is unnecessary.
First, the two prongs of the statutory exception, although distinct, are not wholly unrelated. Several of the factors that the trial court identified as relevant to the “prospective law enforcement action” prong of
Second, it seems likely that the commission also applied the wrong legal standard as to the prejudice prong. In concluding that there was only speculative evidence that disclosure of the requested information would be prejudicial to a prospective law enforcement action, the commission appears to have (1) relied on its conclusion that the respondents failed to present evidence of a “specific,” “expected,” “identified,” or “anticipated” law enforcement action, thus incorrectly conflating the two prongs of the test, and (2) taken too literally Sudock‘s offhand statement that he could “go on with speculating” as to how the requested information might be used.
Sudock testified that some of the requested records contain information that only the perpetrator could know, and that such information, if released, could prejudice any future prosecution. In past cases,
If the respondents’ prejudice showing fell short, it was not because Sudock failed to testify as to exactly where and how the documents would be used—requiring that level of prognostication would be unreasonable. On remand, any documents that the respondents submit for in camera review as containing potentially prejudicial information should be reviewed under the commission‘s established standards.
The judgment is reversed and the case is remanded with direction to remand the case to the commission for further proceedings according to law.
In this opinion the other justices concurred.