Freedom of Information
5:30 pm
Tue November 26, 2013

Closed Investigation of Sandy Hook Shooting Prompts Nuanced Legal Questions

A photo from the Lanza home in Newtown from the summary report of the Sandy Hook Elementary School shooting investigation.
Credit State of Connecticut

State's Attorney Stephen Sedensky's summary report on the Sandy Hook Elementary School shooting said that the investigation is now closed, and there will be no criminal prosecution in the case. None of the evidence points to collaboration in the crime, and the shooter is considered solely responsible.

Key legal questions now, according to Hartford lawyer Dan Klau, include why certain information remains sealed from the public, while other information has been made available. And that information, he believes, should be available especially in a case where the government is investigating itself.

In a blog post, Klau wrote that the formal closure of the case removes one type of exemption to freedom of information law. With no further investigation, and no one to prosecute, there's no risk of prejudicing someone against a suspect. But a few other legal questions arise.

Which FOI exemption applies?

Page six of the summary report said that federal authorities are barring some materials from the public record "due to rules regarding the dissemination of information obtained pursuant to grand jury subpoenas, sealed search warrants, and federal Freedom of Information Law." As Klau pointed out, the law is not cited, and that means it can't be challenged. If an FOI exemption applies, shouldn't we know which one?

Do child abuse laws apply?

Another matter is a footnote on pages seven and eight, justifying the withholding of certain information from the report on the basis of state child abuse laws. Klau thinks this is a "highly questionable legal argument," because it "has no logical end point." From Klau:

If the 911 calls contain information relative to a child abuse investigation, again as defined under state law, and if such information is exempt from public disclosure, then why isn’t the State’s Attorney’s summary report in its entirety subject to non-disclosure for the same reason?  Doesn’t everything in the report relate to a child abuse investigation, as the State’s Attorney interprets that phrase?  

Does the case warrant a fundamental change to freedom of information law?

Klau appeared on The Colin McEnroe Show on Monday and shared his thoughts about the release of the summary report. "What we see in reaction to the Sandy Hook tragedy," Klau said, "is an attempt by certain folks in the legislature to fundamentally change freedom of information rules. ...We need to know when mistakes happen, and it's very hard to do that in darkness."

"I like to think of this as part of our government's system of checks and balances," Klau said. "The fourth branch, the media, which is really just a representative of the public, is also a check on not just government abuses, but government mistakes. Particularly when you have the government investigating one of its own, it's all the more important that a set of eyes outside of the government -- somebody acting on behalf of the public -- have access to those important records, to see whether things are really being addressed properly."

More to come

We'll soon find out more about whether a judge agrees with Sedensky on the withholding of certain information related to the Newtown shooting.

On Tuesday, New Britain Superior Court Judge Eliot Prescott ordered the release of the 911 recordings from the shooting. The tapes will not be unsealed, however, until December 4, in order to give the prosecutor time to prepare an appeal.

On Wednesday at 9:30 am, the state's Task Force on Victim Privacy and the Public's Right to Know will meet to consider recommendations regarding victim privacy and the public availability of information. Angel Arce, co-chair of the task force, prepared a summary of proposed recommendations that would make it much more challenging for the public to access crime scene information. Arce recommended that 911 calls be generally exempt from public disclosure.