By Andy Thibault and Isaac Avilucea
Connecticut’s Freedom of Information Commission always has followed the principle that complainants do not need to be represented by lawyers. This is because it is the job of the commission’s hearing officer not just to evaluate the evidence impartially but also to make sure that complainants are able to present their case.
The commission now has a case in which state police wrongly refused to disclose easily retrievable records. The failure to produce these records promptly is colored by the police claim that the documents related to a pending criminal case. The police produced the records four months late but before the criminal case was decided.
Connecticut’s FOI law demands prompt production of documents. Generally, prompt means immediately unless the public agency can demonstrate that production of the public records would interfere with the normal course of business.
Our FOI complaint — lodged in December 2013 — was heard July 30. The hearing officer was Commissioner Matthew Streeter. The case was logged as 2013-775, Isaac Avilucea / Andy Thibault / Register Citizen V. Connecticut State Police.
Regardless of any draft decision Streeter might put forward, his bias and negligence pose a dire warning for any lay complainants who appear before the FOI Commission going forward.
The record shows that hearing officer Streeter sustained virtually every objection by Assistant Attorney General Terrence O’Neill and suppressed evidence and statements that normally and customarily would be admitted during Freedom of Information hearings. Notably, while shutting down the complainant’s case, the hearing officer never once cautioned the respondent’s attorney for asking leading questions or for any other technical violations.
Indeed, conversely, Streeter allowed the respondent attorney — numerous times — to interrupt and forestall our attempt to put on a case.
The hearing officer has a duty to keep lawyers from dominating lay complainants. More importantly, the Code of Professional Conduct covering hearing officers demands a fair and unbiased hearing.
As for O’Neill, he knows full well that counsel has a duty not only to represent, but also a competing obligation to do what is right — much like a prosecutor has a duty not necessarily to convict, but, rather, to do justice.
This is crucial to the case: O’Neill also knew full well — after conferring with State Police Lt. Paul Vance — that the smoking-gun document he wanted to suppress was authentic.
Notably, O’Neill was once fined by U.S. District Court Judge Stefan Underhill for ethical violations, including failure to disclose a potential conflict of interest in a timely manner.
The suppressed document in our case was a state police report available the night of a shooting involving the wife of an off-duty Newtown police officer at a resort in northwest Connecticut. We asked for the report a week later after a state police source told us, “They’re trying to keep a lid on this.”
We tried to show — as best we could under the circumstances — that a third-grader could have produced the report upon request. We had to wonder why taxpayers are subsidizing lawyers to take four months to redact two dates of birth from such documents before forwarding them.
The suppressed documents and statements are noted here: http://www.cooljustice.blogspot.com/2014/07/they-are-trying-to-keep-lid-on-this.html.
Other highlights of the hearing included Vance’s denial under oath that he ever claimed to be the decider of what “prompt” means under the FOI law. But Vance never disputed newspaper accounts of his “I’m the decider” statements or the report of them in the complaint filed in December 2013 — until questioned under oath July 30.
For these reasons and others, Connecticut citizens must take heed of a new motto at the FOI Commission: “Caveat Petitor!” or “Let The Petitioner Beware!”
Andy Thibault is a contributing editor and columnist for 21st Century Media’s Connecticut publications. He is a former member of the state Freedom of Information Commission.