The staffs of the state's top prosecutor and the governor's office have been working in secret with General Assembly leaders on legislation to withhold records related to the police investigation into the Dec. 14 Newtown elementary school massacre — including victims' photos, tapes of 911 calls, and possibly more.
The behind-the-scenes legislative effort came to light Tuesday when The Courant obtained a copy of an email by a top assistant to Chief State's Attorney Kevin Kane, Timothy J. Sugrue. Sugrue, an assistant state's attorney, discussed options considered so far, including blocking release of statements "made by a minor."
"There is complete agreement regarding photos etc., and audio tapes, although the act may allow the disclosure of audio transcripts," Sugrue wrote to Kane, two other Kane subordinates and to Danbury State's Attorney Stephen Sedensky, who is directing the investigation of the killings.
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Newtown, CT, USA
The bill that's being crafted has not been handled under routine legislative procedures — it hasn't gone through the committee process, which includes a public hearing, for example. Sugrue's email Tuesday indicated that a draft of the bill was being worked on by leaders in both the House and Senate, and might be ready as soon as the end of the day.
He wrote: "I just received a call from Natalie Wagner" — a member of the legal counsel's staff in the office of Gov. Dannel P. Malloy.
"She believes that draft language will be forthcoming today (the work of both houses) in the form of a special act. ..." Sugrue wrote that Wagner "will send me the draft in confidence when she receives it, and I will immediately forward it."
However, late Tuesday, the legislation proposed by Kane wasn't ready to be acted on in either legislative chamber, said Malloy's director of communications, Andrew Doba. He said he did not know when that might happen.
"A lot of people, including our office, have heard the concerns expressed by the families of Newtown victims, and are exploring ways to respect the families' right to privacy while also respecting the public's right to information," gubernatorial chief of staff Mark Ojakian said in a statement released by Doba.
A major question yet to be settled is whether the legislation would apply only to the Newtown case, or to documents from other criminal cases that are now subject to public disclosure. A report on the police investigation into the Newtown shooting is expected to be released in June.
As envisioned by Kane, the bill wouldn't be limited to the Newtown file.
"We are seeking legislation to protect crime scene photographs protecting victims and certain 911 tapes," Kane told The Courant Tuesday. "It is something that I have been concerned about for years and years and the situation in Newtown brings it to a head. I don't want family members seeing pictures of their loved ones publicized in a manner in which these are subject to be published."
He said as he sees the legislation, it would apply to "basically crime scene photographs depicting injuries to victims and recordings, 911 recordings displaying the mental anguish of victims. Things like that, of that category. And it seems to me that the intrusion of the privacy of the individuals outweighs any public interest in seeing these."
Sugrue said in his email that the "forthcoming" language would be "in the form of a special act, not an amendment to the [state's Freedom of Information Act]."
As originally discussed behind the scenes, the proposed legislation would have amended the state's freedom of information law by adding a blanket exemption to disclosure of any "criminal investigation photograph, film, videotape, other image or recording or report depicting or describing the victim or victims."
Colleen Murphy, the director of the state's FOI Commission, said Tuesday that her staff had argued against the idea of such a blanket change. She said a couple of weeks ago the office of House Speaker Brendan Sharkey provided her agency with a draft including the blanket exception. She said she was advised that this draft would not be put to a vote, but she knew nothing abut the contents of the "forthcoming" draft.
Murphy said she'd urged that lawmakers be "thoughtful and careful about any legislation" and to "not be reactive to one situation" by making changes that could have long-term, unintended effects.
Murphy was unaware of Sugrue's email when The Courant told her about it late Tuesday afternoon. She said she and her staff had not been receiving detailed updates. Asked if she would have liked to have been kept aware of developments such as Sugrue's email, she said yes.
The killing of 20 first-graders and six women at Sandy Hook Elementary School in Newtown has sparked a number of legislative proposals this year to protect the privacy of the victims' families and spare them further pain. One example is a bill that would exempt the death certificates of minors from public disclosure for six months.
On Dec. 14, Adam Lanza, 20, shot and killed his mother at their Newtown home then drove to the school, where he used a semiautomatic rifle in the massacre. He then killed himself. Most investigative records have yet to be released concerning Lanza, including any psychological reports.
If the proposed legislation ends up blocking the release of victims' photos and tapes of 911 calls — on which Sugrue said "there is complete agreement" — it wouldn't be a significant departure from normal procedures with regard to photos, but would be a major departure with regard to tapes of emergency calls.
As a matter of long practice, Connecticut police departments do not release grisly photos of victims. These only emerge in public when placed in evidence during criminal trials, and when they do they generally are not published in newspapers or on television.
"Our concern is the media and the Internet and all the bloggers," Kane said. "If this stuff is FOI-able. ... You've seen these pictures, which are sometimes introduced as exhibits in court at a trial. The print media certainly doesn't print those. And normally the TV doesn't. But this case rose to a whole different level. Subject to FOI, any member of the public can get them."
Audio tapes of 911 tapes, on the other hand, are routinely released by police under FOI laws in Connecticut and across the country. Law enforcement officials have refused to release the 911 call tapes in the Newtown case so far. Those tapes were released after other recent major crimes, including the 2010 Hartford Distributors shootings in Manchester.
The release of such tapes are often used by the news media or lawyers to evaluate the police response to emergencies.
Sugrue's email on Tuesday discussed, in vague terms, potential "consent" provisions under which victims' family members apparently would have say over what information might be withheld or released. He mentioned a proposal to "allow the written consent of one immediate next of kin" – to accommodate one parent's "desire to obtain records that relate to her son." But, he added, that might be unfair to "the other families if one member thereof gives the consent."
Also unclear Tuesday was the question of which government officials would decide whether to release or withhold information under the bill.