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Secretly Drafted Bill Would Leave Release of Some Newtown Investigative Records Up To Families

By JON LENDER, EDMUND H. MAHONY And CHRISTOPHER KEATING, jlender@courant.com

The Hartford Courant

8:38 PM EDT, May 22, 2013

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A secretly drafted bill to block release of photos, tapes of 911 calls and death certificates related to the Dec. 14 Newtown elementary school massacre could be acted on in the General Assembly as early as the end of the week, officials said Wednesday.

Family members of victims would have discretion over release of some of the records.

A draft of the bill was released Wednesday afternoon by Gov. Dannel P. Malloy's office, which has been working behind the scenes in recent weeks on drafting the language with legislative leaders and the office of the state's top prosecutor, Chief State's Attorney Kevin Kane.

Word of the planned legislation was kept from the public until Tuesday, when The Courant obtained a copy of an email written by a Kane assistant that said Malloy's legal staff told him a draft of a "special act" would be quickly "forthcoming."

A Courant story about the secret plan to withhold information on the Newtown investigation has sparked intense interest and concern in Connecticut and nationwide — based both on what the bill would do and the way it was put together outside the normal legislative process, without a public hearing.

Lawmakers at first were talking about trying to vote on the bill Wednesday, but they abandoned that idea as criticism mounted. Details still need to be worked out, and the vote could come either this week or next, said Malloy's chief of staff, Mark Ojakian.

According to the draft released Wednesday, the restrictions in the bill would apply only to records "compiled in connection with the school shooting that occurred on Dec. 14, 2012 at Sandy Hook Elementary School in Newtown" — where 20 first-graders and six women died, and two other women survived gunshot wounds.

Kane said he wanted at least some of the proposed limitations on the release of records to apply to police investigations in general — not just the Newtown case — but his proposal isn't reflected in the draft.

"Our proposal was not limited," Kane said Wednesday.

The bill, which would take effect immediately upon passage, would:

•Allow all government agencies to keep secret from the public any images including photographs, videotapes and digital recordings as well as audio recordings that depict the physical condition of any victim "without the written consent of the victim, or, if the victim is deceased, a member of the victim's immediate family."

•Permit any public agency to remove the name of any minor witness of the school shooting — younger than 18 — from any records.

•Prevent disclosure to the public of any recordings of audio transmissions or recordings of any "call for emergency assistance, including but not limited to an emergency 9-1-1 call." Public agencies, however, would be allowed to sell transcriptions of such recordings to members of the public for 50 cents a page.

Also, no municipal official or employee would be required to make public the death certificate of anyone who died at the school, unless the request is made by a member of the victim's immediate family.

"Immediate family" is defined in the draft of the bill as "a spouse, adult child, parent, adult sibling or legal guardian." "Victim" means "any person who suffered a gunshot wound or any other physical injury arising from the discharge of a firearm on the grounds of Sandy Hook Elementary School" on Dec. 14, "but excluding the person who fired such firearm."

Ojakian, the gubernatorial chief of staff, said in an interview: "We have been in touch with most of the families since the Newtown tragedy happened. One of the consistent themes, time and time again, in those personal meetings has been 'please help us protect the memories of our children.' It's been a national sensation with blogs … and conspiracy theorists that have their own websites. … They are trying to grieve the loss of their children. … We are responding to their concerns while respecting the intent of the FOI laws."

He was asked specifically about the proposed ban on release of audio tapes of 911 calls – tapes that are routinely released by police departments in Connecticut and across the country and used by news organizations and citizens to evaluate responses to emergencies by law enforcement personnel.

"It's a unique situation," Ojakian said. "We're trying to balance both sets of concerns and come up with something that doesn't abandon our belief in transparency."

However, a coalition of news and freedom-of-information organizations wrote a letter to Malloy Wednesday, raising concern about shutting out the public.

"We understand the process of gathering information may have the unfortunate and unintended effect of reminding families and friends of the Sandy Hook victims of their terrible loss. All agree that every reasonable step should be taken to minimize such painful reminders, while not depriving our local, state and federal governments — and the people in general — of information needed to assess the tragedy and develop appropriate legislative responses," the letter said.

House and Senate leaders, as well as Kane, received copies of the letter from Michael Schroeder, president of the Connecticut Daily Newspaper Association; Michael Ryan, president of the Connecticut Broadcasters Association; and Jim Smith, president of the Connecticut Council on Freedom of Information.

They urged the Malloy administration and lawmakers to avoid "a response that would restrict public access to information about what happened at Sandy Hook, or other crimes, regardless of scope, moving forward."

They added: "While many tragic events have made us question whether the disclosure of information is always in the best interest of a society, history has demonstrated repeatedly that governments must favor disclosure. Only an informed society can make informed judgments on issues of great moment."

Public 'In Dark'

Sandra Staub, legal director of the American Civil Liberties Union of Connecticut, said her group is "troubled to learn that exceptions to open government are being drafted and planned in secret."

"Regardless of the merits, if any, of the legislative proposal, there's no excuse for creating new open records exemptions without a full public hearing," she said. "Good public policy is not made in the dark. That's why we have freedom of information laws in the first place."

Speaking up for the proposal was Senate Minority Leader John McKinney, R-Fairfield, whose district includes Newtown.

"I represent the people of Newtown in the state Senate and that includes the parents and family members of those who were murdered at Sandy Hook Elementary School," McKinney said in a statement Wednesday. "No one has been a stronger advocate of Connecticut's Freedom of Information Act than I have, but on behalf of the Sandy Hook families, and because this was an unprecedented tragedy, I support a one-time exception, so that graphic evidence and the crime scene photographs of the murdered children and loved ones of my constituents are not exploited."

"What we're trying to do is recognize that the victims of Newtown have undergone a tremendous trauma,'' House Speaker J. Brendan Sharkey, D-Hamden, said in an interview. "In this unique situation, there is a sense that we should try to protect the families of the victims by limiting access to certain sensitive materials from the crime scene. We've developed this in response to requests from the elected representatives of the victims. It started with the town clerk's refusal to issue the death certificates, but the conversation about what to do expanded into the question of the other particularly sensitive and horrific photos and materials that came from the crime scene.''

"This is unique, and I think that most people in Connecticut recognize that this is something that strikes very deeply in the hearts of everyone in this state,'' Sharkey said. "We, first and foremost, need to protect these families, recognizing this is a completely unique set of circumstances.''

It was still unclear Wednesday whether the House or Senate would take up the bill first. As now drafted, it would be attached as an amendment to an existing bill that would let state police charge $16 for a copy of a report on an accident or investigation, and charge a citizen 25 cents a page for merely looking at such a report.

Rank-and-file lawmakers had not seen a final version of the measure to restrict access to Newtown investigation records, but they still expressed concern about its contents.

"I don't know how you separate Newtown from the other incidents,'' said Rep. Steven Mikutel, a veteran Democrat from Griswold. "I don't think we should be doing a piece of legislation that just covers Newtown. ... On the 911 tapes, I think that's a bit of an overreach. They give them out to the media. I'm comfortable with releasing that, and that should not be part of the bill. I think this is an overreaction to protect 911 tapes. Let the truth come out on the 911 tapes.''

Mikutel, one of the longest-serving House members, with 20 years of experience, said that lawmakers were forced to vote on the gun-control package this year without knowing the full details of the crimes by shooter Adam Lanza. For example, he said, legislators did not know whether Lanza had any alcohol or drugs in his system at the time that they voted on the gun-control bill. Recently, after the vote, The Courant disclosed that an autopsy showed that Lanza had no alcohol or drugs in his system.

"We didn't know until afterward whether this shooter was on drugs. That's disturbing to me,'' Mikutel said Wednesday. "I find that disturbing as a legislator to vote on that gun bill without knowing all the facts of that case.''

Mikutel said he was not concerned that any daily newspapers would publish horrific crime scene photographs because they have not done that routinely in the past.

"I don't worry about the newspapers publishing these pictures at all,'' Mikutel said. "I'm worried about the professional hackers, the cranks, the gadflies, and the crackpots. I'm not afraid of the media.''

Courant reporter Dave Altimari contributed to this story.