By Dan Klau
On Monday the Connecticut Supreme Court released its unanimous decision in an important Freedom of Information Act (“FOIA”) case, Comm’r of Public Safety v. FOIC, which involved a 2008 request for arrests records by the New Haven Register. The media and open government advocates, myself included, have expressed considerable disappointment with the decision, which holds that the police (both local and state) need only disclose the barest minimum of information about an arrest. (Disclosure: I supervised several students from the Yale Law School Media Freedom and Information Access Clinic, which wrote a fantastic amicus brief in the case on behalf of a multitude of media and open government organizations.)
My purpose in writing this post is to show how the Court got the decision exactly right, and exactly wrong, at the same time. It was a close case. The way the Court went is absolutely defensible. However, the Court could have gone the other way too. It could have written an absolutely defensible opinion in favor of greater openness and transparency. As a matter of public policy, such a decision would have been preferable to one that strikes the balance in favor of darkness and opacity and punts the issue back to the General Assembly.
The legal dispute revolved around a 1994 amendment to the state Freedom of Information Act, an amendment the General Assembly passed in reaction to the state Supreme Court’s decision in Gifford v. Freedom of Information Comm’n. A divided (3-2) Supreme Court held in Gifford that, during pending criminal prosecutions, law enforcement agencies’ disclosure obligations under the FOIA are governed exclusively by General Statutes § 1-215, which only requires the police to release basic “police blotter” information about an arrest, such as the name of the person arrested, date and time of arrest and nature of the offense. In simple terms, the Court held that § 1-215 established a “ceiling” on the amount of information that police have to disclose about an arrest while a criminal prosecution is pending.
In so holding, the Court rejected the position of the Freedom of Information Commission, which argued that § 1-215 established a “floor” on the amount of information that had to be released and that if the police wanted to withhold additional information about an arrest, they had to demonstrate that the information was exempt under § 1-210(b)(3). That section permits the police to refuse to disclose information that might prejudice a prospective law enforcement action.
The legislature responded to Gifford by enacting Public Act 94-246, which amended § 1-215. The issue in the just-decided Supreme Court case was the meaning and effect of that amendment. For nearly twenty years, the FOIC ruled in a series of published decisions that the effect of the amendment was to overrule Gifford and to adopt the legal position for which the agency had advocated in that case. None of those decisions were challenged on appeal. Then, in 2008, in response to a New Haven Register reporter’s request for certain arrest records that went beyond the bare minimum that § 1-215 required released, the State Police decided to challenge the FOIC’s longstanding interpretation of the 1994 Public Act. The FOIC stood by its interpretation and directed the State Police to disclose the requested records. The State Police appealed. The trial court agreed with the State Police. The FOIC appealed. The Appellate Court affirmed the trial court. The FOIC appealed again, which brings us to the Supreme Court’s latest decision.
The Supreme Court first concluded that the party’s respective interpretations of the text of the 1994 amendment were reasonable. That is, the text of the amendment was ambiguous. (Note: I attended the oral argument in this case and left the argument with the distinct impression that virtually every justice on the Court thought that the amendment was not ambiguous and that the plain language favored the FOIC’s position. But judge’s questions at oral argument are frequently poor predictors of the outcome of a case.) Reaching that conclusion meant that the Court could examine the legislative history of the 1994 amendment to help resolve the ambiguity. That examination is what put a knife through the heart of the FOIC’s argument.
Upon reviewing the legislative history, the Court concluded that the legislature did not intend to overrule Gifford completely. Instead, it intended to make only a minor modification to § 1-215. That modification required the police to release one (not all) of the following in addition to the basic police blotter information: the arrest report, incident report, news release or other similar report of the arrest of a person. (Emphasis supplied.) The law does not specify what the news release or similar report must say. It can say nothing beyond name, date and nature of offense. In fact, many police departments simply issue a press release that has only that information. Under the Supreme Court’s decision, that simple press release constitutes compliance with § 1-215.
Thus, as the law now stands, that bare minimum of information about an arrest is the only information that a police department is required to release while the matter is pending. The police usually have a lot more information about an arrest that is of public interest, but they are not required to disclose it even if there is no risk that the disclosure would prejudice pending or prospective legal proceedings. Some departments may be happy to release more than is absolutely required. Many others may produce nothing beyond what is absolutely required.
That brings me to why I think the Court’s decision was “right.” I think the text of the 1994 amendment was not ambiguous and favored the FOIC’s position, but I don’t think the Court’s contrary conclusion is irrational. So, I think it was fair for the Court to conclude that the text was ambiguous and to then consult the legislative history. I also think that the Court’s analysis of the legislative history was solid.
That being the case, why do I think the decision was also “wrong?” There is a well-established legal doctrine known as “legislative acquiescence.” When courts and administrative agencies like the FOIC repeatedly and over a period of time interpret a statute in a particular way, and when the legislature does nothing to express its disagreement with that interpretation, the legislature may be deemed to have “acquiesced” to that interpretation. The Court could have relied upon the doctrine and written a decision that said something like this:
While the legislative history supports the State Police’s interpretation of the 1994 amendment, that history, like the text of the amendment itself, is not perfectly clear. Trying to ascertain legislative intent through legislative history is art, not science. We think that the legislature’s lack of disagreement with the FOIC’s repeated contrary interpretations over a period of nearly 20 years supports the conclusion that the legislature shares the FOIC’s interpretation. We are reluctant to overturn nearly two decades of unchallenged, settled administrative agency precedent, particularly since that precedent enjoys strong support in public policy, which favors openness and transparency.
The doctrine of legislative acquiescence calls upon a court to exercise its judgment. The doctrine does not compel, require or mandate a court to conclude that a legislature has acquiesced to a judicial or agency interpetation of a statute; it merely permits the court to so conclude. Unfortunately, in the case at hand the Supreme Court declined to invoke the doctrine and to adopt a position inconsistent with its analysis of the legislative history of the 1994 amendment. Ultimately, the Court concluded that the General Assembly, not the courts, was the proper forum for the parties’ debate:
Given the continuing vigorous legislative debate on open government matters both in 1994 and today, we deem balancing the various interests and articulating a coherent policy on this matter to be a uniquely legislative function. The General Assembly retains the prerogative to modify or clarify § 1-215 as it sees fit.
The Court’s conclusion is rational and defensible. My point, however, is that invoking the doctrine of legislative acquiescence also would have been rational and defensible. Moreover, doing so would have struck the balance in an admittedly close case in favor of openness and transparency. If the legislature disagreed with that balance, it could amend the law–just as the Supreme Court said it has the power to amend the law and expressly overrule Gifford if it wants too.
In sum, in a close case why not err in favor of openness and transparency?