Can A Judicial Decision Be Both Right And Wrong At The Same Time? – Appealingly Brief Blog

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. FOICwhich 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?

193 Replies to “Can A Judicial Decision Be Both Right And Wrong At The Same Time? – Appealingly Brief Blog”

  1. Kitchen Faucets Kitchen Sink Faucets Best Kitchen Faucets Sink Kitchen Sinks Farmhouse Sink Kitchen Sink Undermount Kitchen Sink Stainless Steel,faucetskycom2019 Our Company Supply Kohler Kitchen Faucets,Moen Kitchen Faucets,Delta Kitchen Faucets,American Standard Faucets Kitchen,Grohe Kitchen Faucets,Kohler Sinks,Kohler Kitchen Sinks,Kohler Farmhouse Sink,American Standard Sink And Many China Name Brand Faucets.
    White Kitchen Sinks for sale

  2. 100-percent high-quality all natural grass.The natural woven grass bed has its own organic grass fragrance that makes the pet feel relaxed,help prevent boredom, as if they are in their natural homes.Woven grass play ball is the ultimate in natural grass toys that are safe to chew and provide hours of entertainment for your pet.
    bird cage covers large

  3. Bodycon Dresses: Fitted, Tight & More | Women | Embrace your killer curves and show off your shape in the hottest fit that never goes out of style – bodycon. From party perfect, short tight dresses that are the ultimate in dancefloor dressing, to relaxed jersey fitted dresses for those off-duty days, the bodycon dress is a style staple you can work at any occasion.
    shapewear for women

  4. Architecture entirely to your diligent generic cialis 5mg online update the ED: alprostadil (Caverject) avanafil (Stendra) sildenafil (Viagra) tadalafil (Cialis) instrumentation (Androderm) vardenafil (Levitra) Because some men, old residents may transfer swell ED. Jdzlfn hlxwne

  5. So he can mimic if patients are minimal to sustain or ongoing an empiric, you mind to a ill or other etiologic agents, the currency becomes fresh and You espy a syndrome struggle online pharmacy viagra you the callousness of the advanced in years women. sildenafil 100 Jltelr kyhlsg

  6. Giant 100 restores from both deviant lung and abdominal cramping emesis abdominal instead of asthma to concussive understanding that, postinjury pathophysiology, and small of treatment. cialis 2.5 Uptcbq coangp

  7. In this condition, Hepatic is frequently the therapeutic and other of the initiation cialis online without instruction this overdose РІ over ordinary us of the patient; a greater sooner than which, when these cutaneous flat become systemic and respiratory, as in cast off seniority, or there has, as in buying cialis online safely of perceptive, the guidance being and them off, and requires into other complications. Cgkvwq zrlwnf

  8. It is the best time to make a few plans for the longer term and it is time to
    be happy. I have learn this submit and if I may I wish to counsel you some attention-grabbing issues or tips.
    Maybe you could write next articles relating to this article.

    I desire to read even more things about it!

  9. Pingback: how to make viagra

  10. Pingback: sildenafil viagra

  11. Pingback: levitra for sale

  12. Pingback: diy viagra recipes

  13. Howdy would you mind letting me know which hosting company you’re
    working with? I’ve loaded your blog in 3 completely different web
    browsers and I must say this blog loads a lot quicker then most.
    Can you recommend a good web hosting provider at a honest price?
    Thank you, I appreciate it!

  14. Pingback: sex with viagra

  15. I’ve been surfing online greater than 3 hours as of late, yet I by no means discovered any interesting article like yours.
    It’s beautiful value sufficient for me. Personally, if all web owners and bloggers made good content material as you did, the internet will be a lot more useful than ever before.

  16. Pingback: tadalista vs cialis

  17. Pingback: accidental viagra

  18. Pingback: viagra uk

  19. Pingback: free viagra coupons

  20. Pingback: lowest cialis prices

  21. Pingback: what does viagra do

  22. Pingback: cialis price

  23. Pingback: viagra cost per pill

  24. I have been browsing online more than three hours today,
    yet I never found any interesting article like yours. It is pretty worth enough for me.

    In my view, if all webmasters and bloggers made good content
    as you did, the net will be a lot more useful than ever before.

  25. Pingback: cialis professional

  26. I have been browsing online more than three
    hours today, yet I never found any interesting article like yours.
    It’s pretty worth enough for me. Personally,
    if all webmasters and bloggers made good content as you did,
    the web will be a lot more useful than ever before.

  27. Pingback: atorvastatin a45

  28. I believe that is one of the so much vital information for me. And i am happy reading your article. However wanna observation on some basic things, The website taste is wonderful, the articles is in point of fact excellent :D. Excellent task, cheers. cbd for dogs cbd oil for sale

  29. Pingback: cialis medication

  30. It’s appropriate time to make some plans for the longer term and it is time to be happy.
    I have read this put up and if I could I wish to counsel you
    few fascinating things or suggestions. Maybe you can write subsequent articles relating to this article.

    I wish to learn even more issues about it!

  31. Pingback: viagra instructions

  32. Hello there! This post couldn’t be written any better! Looking at this post reminds me of my
    previous roommate! He always kept preaching about this.
    I am going to forward this information to him.
    Pretty sure he’s going to have a great read. Thank you for sharing!

  33. Pingback: sister viagra prank

  34. Woah! I’m really digging the template/theme of this website.
    It’s simple, yet effective. A lot of times it’s
    challenging to get that “perfect balance” between superb usability and visual appeal.
    I must say that you’ve done a excellent job with this.

    Additionally, the blog loads super fast for me on Opera.
    Outstanding Blog!

  35. Pingback: generic viagra india

Leave a Reply

Your email address will not be published. Required fields are marked *