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JOHN DRUMM, CHIEF OF POLICE, ET AL. v.
FREEDOM OF INFORMATION COMMISSION
(SC 20656)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Dannehy and Elgo, Js.*
Syllabus
Pursuant to a provision of the Freedom of Information Act (§ 1-210 (b) (3)
(D)), records of law enforcement agencies not otherwise available to
the public that were compiled in connection with the detection or investi-
gation of a crime are exempt from disclosure if the disclosure of such
records would result in the disclosure of ‘‘information to be used in a
prospective law enforcement action if prejudicial to such action . . . .’’
The plaintiffs, the town of Madison, its police department, and its chief of
police, D, appealed to the trial court from the decision of the defendant,
the Freedom of Information Commission, ordering the disclosure, pursu-
ant to the Freedom of Information Act (FOIA), of certain documents
contained in the police department’s homicide investigation files to the
intervening defendant, N, a filmmaker who was the complainant before
the commission. The requested documents related to the 2010 homicide
of B. Immediately after the homicide, DNA evidence was recovered, but
the case went unsolved. In 2013, N and B’s son, H, began working on
a documentary about B’s unsolved homicide. Between 2013 and 2019,
H met with members of the police department, including S, three times
in an attempt to obtain information about the investigation. During those
meetings, H was left with the impression that the police department
had classified B’s homicide as a cold case. S indicated to H that, although
the DNA evidence was sufficient to identify potential suspects, it was
inadequate to prosecute any particular individual, and that the police
department had had the same prime suspect since one week after the
homicide. Nevertheless, D, citing the ongoing investigation, would not
permit the police department to cooperate with the documentary project.
As a result, N filed an FOIA request with the police department, which
denied the request and declined to produce any of the requested docu-
ments on the ground that they were not subject to public disclosure
pursuant to § 1-210 (b) (3) (D). N then filed a complaint with the commis-
sion. The only evidence the plaintiffs offered at the hearing before the
commission was S’s testimony. S acknowledged that the case had gone
cold by 2016 and that, with the technology available at that time, the
DNA evidence could not lead to an arrest. S also testified, however,
that the investigation remained open and active, that he was working on
the case periodically throughout the year, and that the police periodically
received new leads, which he then would investigate. S further testified
that he monitored changes in forensic technology and suggested that
new DNA technologies might help the police make an identification in
the future. The commission ruled in favor of N with respect to most of
the requested documents, ordering that the plaintiffs provide N with
copies of those documents. The commission found that, although B’s
death continued to be investigated, the requested documents did not
fall within the exception from disclosure of law enforcement records
because the plaintiffs had failed to establish either prong of § 1-210 (b)
(3) (D), namely, that the requested records would ‘‘be used in a prospec-
tive law enforcement action’’ and that their release would be prejudicial.
The trial court upheld the commission’s decision and dismissed the
plaintiffs’ appeal. In so doing, the trial court concluded that the law
enforcement exception to the FOIA is governed by a reasonable possibil-
ity standard, articulated a list of seven, nonexclusive factors that the
commission should use to determine whether a prospective law enforce-
ment action is a reasonable possibility, and determined that the plaintiffs
were unable to satisfy that standard. On the plaintiffs’ appeal from the
trial court’s judgment, held:
1. The plaintiffs could not prevail on their claim that the commission arbi-
trarily and capriciously had failed to articulate and apply the correct
legal standard that governs claims of exemption under § 1-210 (b) (3) (D):
a. The trial court correctly concluded that, under the first prong of
§ 1-210 (b) (3) (D), a ‘‘prospective law enforcement action’’ is a law
enforcement action that is at least a reasonable possibility:
Insofar as the FOIA does not define the term ‘‘prospective,’’ this court
consulted dictionary definitions of the term and concluded that the
statute was facially ambiguous, as plausible arguments could be made
that the legislature, in enacting § 1-210 (b) (3) (D), may have intended
‘‘prospective’’ to have a probabilistic meaning, such as potential, antici-
pated, expected, likely or possible, or to mean in prospect or pertaining
to a prospect, as in prospective buyers.
In resolving that ambiguity, this court adopted the probabilistic definition
of ‘‘prospective’’ and agreed with the trial court’s conclusion that a
‘‘prospective law enforcement action’’ refers to a future law enforcement
action that has at least a reasonable possibility of occurring, meaning
that the occurrence is more than theoretically possible but not necessar-
ily likely or probable.
Moreover, although the law enforcement exception plausibly could be
read to impose either a more exacting standard, such as by requiring
that the police show that an arrest or prosecution is pending or likely,
or a less demanding standard, such as by requiring that the police demon-
strate only a speculative or theoretical possibility of some future law
enforcement action, the reasonable possibility standard was the most
reasonable reading of the law enforcement exception insofar as it struck
a proper balance between the competing public interests underlying the
FOIA, namely, fostering openness and transparency while protecting
important governmental functions that demand a degree of confiden-
tiality.
Furthermore, application of the rules of statutory interpretation to a
related FOIA provision (§ 1-215 (b) (3)), which exempts from disclosure
information relating to records of arrest that may ‘‘prejudice a pending
prosecution or a prospective law enforcement action,’’ and the legislative
history of § 1-210 (b) (3) (D) provided further support for the reasonable
possibility standard and ruled out the most extreme readings of the
term ‘‘prospective.’’
b. This court clarified that, under the first prong of § 1-210 (b) (3) (D),
a respondent before the commission must establish only that it is at
least reasonably possible that the information contained in a requested
document will ‘‘be used in’’ support of an arrest or prosecution:
In Dept. of Public Safety v. Freedom of Information Commission (51
Conn. App. 100), the Appellate Court stated in dictum that the law
enforcement exception is satisfied when there is an evidentiary showing
that the requested records are going to be used in a law enforcement
action, and Superior Court judges and the commission have relied on
that language to require a showing that it is at least probable, if not
certain, that the subject records would be used for an arrest or prose-
cution.
Construing the statute to create a coherent and cohesive scheme, this
court presumed that the same standard must govern both the ‘‘to be
used’’ and the ‘‘prospective law enforcement action’’ elements of the
first prong of the statutory law enforcement exception, and, accordingly,
it overruled the Appellate Court’s dictum in Dept. of Public Safety to
the extent that it imposed a standard in connection with the ‘‘to be used’’
element that was different from the reasonable possibility standard that
applied to the ‘‘prospective law enforcement action’’ element.
c. This court rejected the policy arguments advanced by the plaintiffs
and the amicus curiae, the Division of Criminal Justice:
The division’s claim that the reasonable possibility standard should be
deemed satisfied when a law enforcement investigation is open, a suspect
has been identified, and no insurmountable obstacles exist to a future
arrest or prosecution was not supported by the language or legislative
history of the statute, and that proposed rule followed a categorical
approach that failed to account for the specific facts and context of each
individual case, placed too much weight on the law enforcement side
of the scale, precluded the public from exercising any effective oversight
in all cases in which any applicable statute of limitations has not run,
and did not account for the fact that, with the passage of time, it becomes
increasingly likely that openness, rather than secrecy, is what will unearth
the elusive lead that will help the police solve the case.
Moreover, the claim that, as a matter of public policy, courts and the
commission should defer to the expertise of law enforcement agencies
or officials when construing or applying the law enforcement exception
was not supported by the statutory scheme or the legislative history,
especially in view of the fact that the legislature, which has been clear
in the context of exceptions to the disclosure of records when it intends
to give the agency possessing the subject records increased deference,
did not do so when it drafted § 1-210 (b) (3).
d. This court articulated various factors for determining, in the context
of the crime of murder and other crimes that involve lengthy or no
statutes of limitations, whether a future law enforcement action is reason-
ably possible:
This court agreed that the following seven, nonexclusive factors identi-
fied by the trial court were relevant to a determination of whether a
future law enforcement action is reasonably possible: the length of time
that has passed since the crime; the length of time that has elapsed since
the law enforcement agency last obtained significant new evidence or
leads; whether the investigation, even if officially open, is classified
as a cold case; the number of investigators presently assigned to the
investigation; the amount of time investigators are committing to the
case; whether the agency has a suspect and, if so, whether the agency’s
suspicion is supported by more than speculation; and whether advances
in science or technology, such as improvements in DNA analysis, may
help solve the crime.
This court also noted that those individual factors may vary in importance
from case to case and are not intended to serve as a complete or mecha-
nistic checklist, and sight should not be lost of the two fundamental
issues that underlie the factors, namely, whether the law enforcement
agency continues to investigate the crime actively and earnestly, and, if
the investigation has gone cold, whether there remains a reasonable
possibility that the investigation ultimately will culminate in some law
enforcement action.
2. The existing administrative record was not sufficient to permit this court
to apply the newly adopted reasonable possibility standard as a matter
of law, and, accordingly, this court remanded the case for further pro-
ceedings before the commission:
The commission’s finding that the police had not identified a suspect
was without support in the record and was contradicted by S’s and
H’s testimony that the police department had enough DNA to develop
suspects and that it had a prime suspect, the erroneous finding was
apparently important to the commission’s law enforcement exception
analysis insofar as the commission had relied on that finding to distin-
guish the present case from previous cases in which it had found that
release of requested records would be prejudicial to a prospective law
enforcement action, and, accordingly, this court concluded that the com-
mission must be afforded an opportunity on remand to consider what
weight and importance, if any, to give to the testimony that the police
department identified a prime suspect early in the investigation.
Moreover, the commission’s final decision could be understood to require
a probability, even a certainty, that the requested records will be used
for an arrest or prosecution, a stringent standard that is not consistent
with the plain language of the statute, and, because the commission’s
factual findings, such as that the plaintiffs’ claims were wholly specula-
tive, were conclusory and may be tied up with the legal standard that
it applied, this court could not apply the new reasonable possibility
standard to the existing record without running the risk of substituting
its judgment for that of the commission as to the weight of the evidence
on questions of fact, and, accordingly, the commission must be provided
with the opportunity on remand to assess whether some law enforcement
action still remains a reasonable possibility.
Furthermore, in concluding that a law enforcement action was not rea-
sonably possible, the trial court relied on certain statistical evidence
regarding the probability of a prosecution in cold murder investigations
and the extent to which public disclosure of information in such cases
would improve the likelihood of an arrest and prosecution rather than
prejudice that outcome, but the commission was the fact finder, and it
should have the opportunity on remand to review any available statistical
data in the first instance, with the input from the parties and any expert
testimony they wish to offer, before making relevant findings.
3. Although the trial court did not address the commission’s determination
that the plaintiffs had failed to establish that disclosure of the requested
records would be prejudicial to a prospective law enforcement action,
this court declined to give the trial court the opportunity on remand to
consider the prejudice prong of § 1-210 (b) (3) (D) because, under the
circumstances of the present case, further review by the trial court
was unnecessary:
The two prongs of the law enforcement exception, although distinct, are
not wholly unrelated, several of the factors that the trial court identified
as relevant to the prospective law enforcement action prong of § 1-210
(b) (3) (D), such as the existence of a suspect and the availability of DNA
evidence for future testing, also are relevant to the issue of prejudice,
and the commission’s reconsideration of these matters will necessarily
bear on prejudice, as well.
Moreover, it seemed likely that the commission also applied the wrong
legal standard to the prejudice prong insofar as it improperly conflated
the two prongs of the statutory exception and improperly relied on S’s
offhand statement that he could ‘‘go on with speculating’’ as to how the
requested information might be used, and, on remand, any documents
that the plaintiffs submit for in camera review as containing potentially
prejudicial information should be reviewed by the commission under its
established standards.
Argued October 19, 2022—officially released February 27, 2024
Procedural History
Appeal from the decision of the defendant ordering
the disclosure of certain records, brought to the Supe-
rior Court in the judicial district of New Britain, where
the court, Klau, J., granted the motion to intervene as
a defendant filed by Anike Niemeyer; thereafter, the
case was tried to the court, Klau, J.; judgment for the
defendant, from which the plaintiffs appealed. Reversed;
further proceedings.
Floyd J. Dugas, for the appellants (plaintiffs).
Valicia Dee Harmon, commission counsel, with
whom, on the brief, was Colleen M. Murphy, general
counsel, for the appellee (defendant).
Stephanie Rice, law student intern, with whom were
David A. Schulz and, on the brief, Emile Shehada, law
student intern, for the appellee (intervenor Anike
Niemeyer).
Matthew A. Weiner, former assistant state’s attorney,
and Sarah Hanna, former senior assistant state’s attor-
ney, filed a brief for the Division of Criminal Justice as
amicus curiae.
Dan Barrett and Elana Spungen Bildner filed a brief
for the American Civil Liberties Union Foundation of
Connecticut as amicus curiae.
Opinion
MULLINS, J. This appeal arises from the 2010 homi-
cide of Barbara Beach Hamburg and the ensuing efforts
of her son, Madison Hamburg, and the intervener, Anike
Niemeyer, a filmmaker who was the complainant before
the defendant, the Freedom of Information Commission
(commission), to produce a documentary film exploring
the victim’s death and the failure of the plaintiffs and
respondents before the commission—the town of Madi-
son, its police department, and its chief of police, John
Drumm (respondents)—to solve the crime.1 In 2019,
Niemeyer filed a request under the Freedom of Informa-
tion Act (FOIA), General Statutes § 1-200 et seq., with
the Madison Police Department to review the victim’s
case file. The police department denied the request,
which led Niemeyer to file a complaint with the com-
mission.
After a contested hearing, the commission ruled in
favor of Niemeyer and ordered the respondents to pro-
vide copies of the police department’s investigation
files. Specifically, the commission rejected the respon-
dents’ contention that the request fell within the excep-
tion from disclosure of law enforcement records
pursuant to General Statutes § 1-210 (b) (3), which
exempts from disclosure ‘‘records . . . compiled in
connection with the detection or investigation of crime,
if the disclosure of such records would not be in the
public interest because it would result in the disclosure
of . . . (D) information to be used in a prospective law
enforcement action if prejudicial to such action
. . . .’’ (Emphasis added.)
The trial court affirmed the decision and disclosure
order of the commission and dismissed the respon-
dents’ appeal. In doing so, the trial court clarified that
the statutory phrase ‘‘ ‘prospective law enforcement
action’ . . . refers to a future law enforcement action,
i.e., an arrest [or] prosecution, the occurrence of which
is at least a reasonable, not a mere theoretical, possibil-
ity.’’ Then, after applying this standard, the trial court
rejected the respondents’ contentions that the decision
of the commission (1) was arbitrary and capricious,
insofar as the legal standard applied by the commission
was novel, incorrect, or insufficiently articulated, and
(2) rested on factual findings that were clearly errone-
ous and not supported by substantial evidence. We
agree with the trial court that, in order to satisfy their
burden of showing that the law enforcement exception
applies, the respondents were required to demonstrate
that a future law enforcement action was a reasonable
possibility. We also conclude that the case must be
remanded to the commission for further proceedings
to allow the commission to apply that standard. Accord-
ingly, we reverse the judgment of the trial court.
I
The record reveals the following relevant facts and
procedural history. On March 3, 2010, the victim’s sister,
Conway Beach, and her daughter, Barbara Alexandra
Hamburg, discovered the victim’s dead body outside the
victim’s home on Middle Beach Road West in Madison.
Barbara Alexandra Hamburg called 911 to report the
death.
The medical examiner determined that the victim
died from multiple blunt and sharp force injuries, lead-
ing the examiner to deem her death a homicide. DNA
matching the male Hamburg lineage was found under
the victim’s fingernails. After the crime, the police
department issued press reports stating that it was look-
ing for a Hamburg relative for questioning. That relative
submitted DNA for testing, but the police did not con-
sider the DNA match strong enough to justify an arrest
warrant. The victim’s homicide has yet to be solved,
and the case remains open. The department has not held
any press conferences, published any press releases,
publicly named or cleared any suspects, or otherwise
updated the public on the case since March, 2010.
In 2013, Hamburg and Niemeyer began working on
a documentary film about the victim. In connection
with that documentary, Hamburg met with representa-
tives of the police department in 2013, 2016, and 2019
in an ongoing attempt to obtain information about the
homicide investigation. At the initial, February, 2013
meeting, two Madison police detectives, Detective Ser-
geant Neal Mulhern and Detective Christopher Sudock,
indicated that they were still pursuing leads and actively
working on the case. At that time, they indicated that,
if the case ever went cold, they might be open to doing
an interview or releasing a statement regarding the
investigation in cooperation with the documentary.
In October, 2016, Hamburg again met with Mulhern
and Sudock, as well as with Drumm and two cold case
detectives. At that time, Hamburg was under the impres-
sion that the police department had run out of resources
and leads and, therefore, had classified the victim’s
homicide as a ‘‘cold case.’’ The officers indicated that
the cold case unit of the Office of the Chief State’s
Attorney was reviewing the case.2 The detectives again
inquired about Hamburg’s male relative.
In June, 2019, Hamburg requested and was granted
a third meeting, this time with only Sudock. Sudock
indicated that the police department had no unidenti-
fied DNA related to the case, that the DNA test kits
that had been used were faulty or expired, and that the
department lacked the resources to run additional tests.
He also indicated that, although the existing DNA evi-
dence was sufficient to identify potential suspects, it
was inadequate to initiate a prosecution against any
particular individual. Sudock further indicated that the
cold case review had not led to any new interviews and
that the department had had the same ‘‘number one’’
suspect since the week after the homicide. That sus-
pect’s telephone—presumably a cell phone—had been
turned off during a twenty-four hour period around
the time of the crime. Sudock provided the following
summary of the meeting: ‘‘[A]t that time, we were stale;
we hadn’t gotten any new leads, we had looked at all
the evidence, technology hadn’t changed. We haven’t
seen anything nation[wide] or worldwide that would
assist us in possibly identifying the perpetrator.’’ Accord-
ingly, Sudock expressed a willingness to cooperate with
the documentary project, pending Drumm’s approval.
Drumm did not give his approval, citing the ongoing
investigation as the reason. Consequently, the police
department declined to provide further information or
assistance. As a result, in October, 2019, Niemeyer filed
an FOIA request with the department. Niemeyer’s request
sought copies of five categories of documents: all investi-
gatory records, witness statements, interrogation records,
and crime scene recordings related to the homicide, as
well as a transcript or recording of the 911 call. The
request encompasses hundreds, if not thousands, of
individual documents, including photographs.
The police department denied the request and initially
declined to produce any documents. The department
contended that the requested documents were not sub-
ject to public disclosure pursuant to § 1-210 (b) (3).3 In
response, Niemeyer filed a complaint with the com-
mission.
The commission heard the matter as a contested case
in February, 2020. By that time, nearly one decade had
passed since the homicide. The only evidence the respon-
dents offered at the hearing was Sudock’s testimony.
With respect to the first prong of § 1-210 (b) (3) (D),
whether the information requested was ‘‘to be used in
a prospective law enforcement action,’’ Sudock testified
that, when he joined the police department in 2012,
approximately two years after the victim’s death, the
department was still focusing on the crime, and it was a
high priority for Drumm at that time. By approximately
2016, however, the case had gone cold.
Sudock further acknowledged that several ‘‘cold case
looks’’ at the file since 2016 had failed to turn up any
potential investigative steps or additional individuals
to interview. He conceded having told Hamburg that
‘‘[n]obody has made a phone call . . . or written an
anonymous letter, [or] anything; we’ve got nothing.
We’ve done hundreds and hundreds and hundreds of
interviews. . . . [The state forensic science labora-
tory] . . . [has] identified suspects, but [the] DNA is
not enough to go forward with the arrest warrants, or
anything like that.’’ He also conceded that, at the June,
2019 meeting, he might have told Hamburg that ‘‘the
case is not moving forward and that it’s held up . . . .’’
Sudock also confirmed having previously told Hamburg
something to the effect of, ‘‘I need something to investi-
gate, and . . . right now, I’m stuck . . . .’’
Sudock also testified, however, that the investigation
remained open and active. He acknowledged that the
case was ‘‘stale’’ and that long periods of time—as much
as eight weeks—pass without any work being done on
it. But he stated that he does work on the case periodi-
cally throughout the year when ‘‘something pops up,
and we’re back to [having] something to investigate
again.’’ He was unable to put a firm number on how
frequently he works on the case or how much time he
dedicates to it but ultimately suggested that he typically
works on it at least once per month.
As recently as the week prior to the hearing, Sudock
testified, there had been new activity in the case. He
specifically stated that, ‘‘[l]ast week, we had informa-
tion on this investigation,’’ but he declined to answer
any questions about that development.
Looking to the future, Sudock testified that his ongo-
ing work on the homicide investigation includes analyz-
ing evidence, monitoring changes in forensic technology,
and pursuing possible leads. He suggested that unspeci-
fied new DNA technologies might help the police make
an identification. He expressed no opinion, however,
as to the likelihood of, or potential timetable for, that
development in this particular case.
With respect to the second, prejudice prong of § 1-210
(b) (3) (D), Sudock stated that many of the requested
documents, including photographs and video recordings,
contained ‘‘information . . . that only the perpetrator
of this crime would know . . . .’’ He opined that releas-
ing such information to the public—especially for expected
use in a documentary film—would make it more diffi-
cult for the police to assess the credibility of any infor-
mants who might come forward and might help suspects
to create fake alibis. When asked to elaborate about
the possible prejudice, Sudock explained: ‘‘There’s a
myriad of things that could happen if all the information
in this case was public and public knowledge, and it
would certainly prevent a successful prosecution. It
would make it more difficult. I shouldn’t say prevent;
it would make it extremely more difficult to make an
arrest and also to prosecute the case.’’ He further con-
curred with the statement that ‘‘[i]t is of paramount
importance that any new information not be colored
by information that is made publicly available. That is
to say that the credibility of any new information will
be amplified if it is information that would only be
known by the killer, as opposed to information that
could be gathered from watching a film.’’ (Internal quo-
tation marks omitted.)
Finally, when asked to provide additional information
as to the types of law enforcement actions that might
be prejudiced by release of the victim’s homicide files,
and the nature of the potential prejudice, Sudock
responded: ‘‘I can’t say that there’s something in a report
that’s viewed [as] insignificant now that may be
important tomorrow, [one] year from now, five years
from now. . . . I don’t know what it could be. . . .
[T]here could be somebody out there [who] has infor-
mation [who is] holding on to that information because
of a fear . . . and now a documentary comes out, and
now they get more fear . . . . I just don’t know.
There’s so much information there. It could be a search
warrant; it could be an arrest warrant. [It] could be
another scene. I mean, there’s so many things that it
could be. I can go on . . . speculating, but I don’t know
at this point in time. . . . The information . . . in my
opinion should . . . remain with the police department
and not be public because it’s only going to hamper
any further investigative tool or technique that we
would have in the future.’’
Following the hearing, the respondents reconsidered
their position, in part, and released the 911 telephone
call recording to Niemeyer. In its decision, the commis-
sion ruled in favor of Niemeyer with respect to most
of the remaining documents, ordering that copies be
provided.4 Although the commission found that the vic-
tim’s death continues to be investigated as the police
receive new information, it concluded that the respon-
dents had failed to establish either that the records ‘‘would
be used in a prospective law enforcement action’’ or
that their release would be prejudicial. In reaching this
conclusion and distinguishing the case from prior ones
in which the commission had determined that the law
enforcement exception was satisfied, the commission
relied on, among other things, its observations that (1)
the respondents had not called any additional witnesses
to corroborate Sudock’s testimony, (2) Sudock’s testi-
mony as to both prongs of § 1-210 (b) (3) (D) was purely
speculative, (3) the police department has not identified
any suspects in the crime, and (4) there was no evidence
that an arrest was expected.
The respondents appealed from the commission’s
decision to the trial court pursuant to the Uniform
Administrative Procedure Act (UAPA). See General
Statutes § 4-183. Although the trial court acknowledged
that the commission’s decision was not a model of
clarity, the court found no reversible error. Looking to
federal law for guidance, the trial court concluded that
the law enforcement exception to the FOIA is governed
by a reasonable possibility standard, and the court artic-
ulated a list of seven nonexclusive factors that the com-
mission should use to determine whether a prospective
law enforcement action is a reasonable possibility. Hav-
ing clarified the standard that governs the prospective
law enforcement action exception (law enforcement
exception) and determined that the respondents were
unable to satisfy that standard, the court affirmed the
commission’s decision and dismissed the appeal. The
respondents appealed from the trial court’s judgment
to the Appellate Court, and we transferred the appeal
to this court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-1. Additional facts will be set
forth as necessary.
II
On appeal, the respondents’ primary claim is that
the commission arbitrarily and capriciously failed to
articulate and apply the correct legal standard that gov-
erns claims of exemption under § 1-210 (b) (3) (D).
They further contend that the trial court adopted and
retroactively applied a new version of the standard with-
out affording them a fair chance to satisfy that standard.
We address the legal standard in this part of the opinion,
and, in part III, we consider whether the trial court’s
application of the new standard was correct as a matter
of law rather than a remand of the case to the com-
mission.
A
The following well established principles guide our
interpretation of the law enforcement exception to the
FOIA. ‘‘Under the UAPA, it is [not] the function . . .
of this court to retry the case or to substitute its judg-
ment for that of the administrative agency. . . . Even
for conclusions of law, [t]he court’s ultimate duty is
only to decide whether, in light of the evidence, the
[agency] has acted unreasonably, arbitrarily, illegally,
or in abuse of its discretion. . . . [Thus] [c]onclusions
of law reached by the administrative agency must stand
if the court determines that they resulted from a correct
application of the law to the facts found and could
reasonably and logically follow from such facts. . . .
[Similarly], this court affords deference to the construc-
tion of a statute applied by the administrative agency
empowered by law to carry out the statute’s purposes.’’
(Internal quotation marks omitted.) Commissioner of
Emergency Services & Public Protection v. Freedom
of Information Commission, 330 Conn. 372, 379, 194
A.3d 759 (2018).
‘‘Cases that present pure questions of law, however,
invoke a broader standard of review . . . . [T]he tradi-
tional deference accorded to an agency’s interpretation
of a statutory term is unwarranted when the construc-
tion of a statute . . . has not previously been subjected
to judicial scrutiny [or to] a governmental agency’s time-
tested interpretation . . . . Even if time-tested . . .
an agency’s interpretation of a statute [is subject to
deference] only if it is reasonable . . . [as] determined
by [application of] our established rules of statutory
construction.’’ (Citation omitted; internal quotation marks
omitted.) Id., 379–80.
It is well established that § 1-210 (b) (3) (D) has two
prongs—that the records are ‘‘to be used in a prospec-
tive law enforcement action’’ and that disclosure would
be prejudicial. See, e.g., Commissioner of Public Safety
v. Freedom of Information Commission, 312 Conn.
513, 545 n.31, 93 A.3d 1142 (2014). Although the first
prong has been interpreted in a few instances by the
lower courts, those interpretations have not been out-
come determinative. Nor has the commission articu-
lated a clear, time-tested interpretation of the legal
standard required to establish the first prong of the
law enforcement exception, particularly with respect
to cold case murder investigation records. Our review
of that pure question of law is, therefore, de novo.
It also is settled law that the custodians of the records
—in this case, the respondents—bear the burden of
establishing that an FOIA exception applies. ‘‘[T]he
overarching legislative policy of [the FOIA] is one that
favors the open conduct of government and free public
access to government records. . . . [I]t is well estab-
lished that the general rule under the [FOIA] is disclo-
sure, and any exception to that rule will be narrowly
construed in light of the general policy of openness
expressed in the [FOIA]. . . . [Thus] [t]he burden of
proving the applicability of an exception [to disclosure
under the FOIA] rests [on] the party claiming it.’’ (Cita-
tion omitted; internal quotation marks omitted.) Lieber-
man v. Aronow, 319 Conn. 748, 754–55, 127 A.3d 970
(2015).
B
We begin our analysis of the law enforcement excep-
tion with the plain language of the statute. See General
Statutes § 1-2z. Subsection (a) of § 1-210 provides in
relevant part: ‘‘Except as otherwise provided by any
federal law or state statute, all records maintained or
kept on file by any public agency, whether or not such
records are required by any law or by any rule or regula-
tion, shall be public records . . . .’’ Subsection (b) of
§ 1-210 carves out various exceptions to that rule of
disclosure, and the exception at issue in the present
case is codified at § 1-210 (b) (3) (D). Section 1-210 (b)
provides in relevant part that ‘‘[n]othing in the Freedom
of Information Act shall be construed to require disclo-
sure of . . . (3) [r]ecords of law enforcement agencies
not otherwise available to the public which records
were compiled in connection with the detection or
investigation of crime, if the disclosure of such records
would not be in the public interest because it would result
in the disclosure of . . . (D) information to be used in
a prospective law enforcement action if prejudicial to
such action . . . .’’5 (Emphasis added.) Although the
focus of the present appeal is on the first prong of the
test—what it means for a document ‘‘to be used in a
prospective law enforcement action’’—we briefly address
the prejudice prong in part IV of this opinion.
1
The meaning of the first prong of § 1-210 (b) (3) (D)
centers around the word ‘‘prospective.’’ Because the
FOIA does not define that term, we look to its ordinary
meaning. See, e.g., Meriden v. Freedom of Information
Commission, 338 Conn. 310, 322, 258 A.3d 1 (2021).
Dictionaries in print in the 1970s, when the statute was
amended to include the relevant language; see Public
Acts 1975, No. 75-342, § 2 (P.A. 75-342); defined ‘‘pro-
spective’’ in one or more of three ways. First, prospec-
tive can have a probabilistic meaning, such as
‘‘potential,’’ ‘‘anticipated,’’ ‘‘expected,’’ ‘‘likely,’’ or ‘‘pos-
sible.’’ See, e.g., The Random House Dictionary of the
English Language (Unabridged Ed. 1966) p. 1155 (defin-
ing prospective as ‘‘potential’’); Webster’s New Univer-
sal Unabridged Dictionary (Deluxe 2d Ed. 1979) p. 1445
(defining prospective as ‘‘anticipated’’); Webster’s New
World College Dictionary (2d Ed. 1972) p. 1141 (defining
prospective as ‘‘expected’’ or ‘‘likely’’); Webster’s Third
New International Dictionary (1966) p. 1821 (defining
‘‘prospect’’ as ‘‘possibility’’); see also, e.g., Ortiz v. State,
93 S.W.3d 79, 86 (Tex. Crim. App. 2002) (prospective
also can mean possible), cert. denied, 538 U.S. 998, 123
S. Ct. 1901, 155 L. Ed. 2d 824 (2003).
Second, prospective can mean ‘‘in prospect’’ or ‘‘per-
taining to a prospect,’’ as in ‘‘prospective buyers.’’ See,
e.g., Webster’s New Universal Unabridged Dictionary,
supra, p. 1445 (‘‘pertaining to a prospect’’ or ‘‘perspec-
tive’’). The term is used in that manner both with respect
to identified or pending prospects, as when we say that
‘‘the prospective buyers have been preapproved for a
mortgage,’’ as well as with possible or potential pros-
pects, as when we say that ‘‘prospective buyers will find
the bonus room a nice feature.’’
Third, prospective can mean looking forward in time
or effective in the future. See, e.g., Ballentine’s Law
Dictionary (3d Ed. 1969) p. 1014 (‘‘[l]ooking to the
future’’). This definition is commonly used in distin-
guishing statutes that apply retroactively from those
that have solely prospective effect; see, e.g., id.; Thomp-
son v. Hagan, 96 Idaho 19, 25, 523 P.2d 1365 (1974);
and we fail to see how the legislature plausibly could
have intended this definition to govern the law enforce-
ment exception, insofar as arrests and prosecutions
cannot be retrospective or past oriented in the way
that laws can be. Cf. Brayman Construction Corp. v.
Commonwealth, Dept. of Transportation, 608 Pa. 584,
598 n.10, 13 A.3d 925 (2011) (concluding that ‘‘ ‘effective
in the future’ ’’ definition of ‘‘prospective’’ could not be
applicable in context of case).
A plausible argument can be made, though, that either
of the first two definitions is what the legislature intended,
and, even within those definitions, there is a range of
possible meanings. Accordingly, we conclude that the
statute is facially ambiguous.
The trial court adopted the first, probabilistic defini-
tion, concluding that the statute, by its express terms,
requires a prediction as to the probability of a future
law enforcement event. Recognizing that this definition
of ‘‘prospective’’ includes within it a broad range of
probabilities, lying along a spectrum, the trial court
rejected a legal standard that lies at either extreme. The
court reasoned that requiring the police to demonstrate
that a law enforcement action is likely or probable
would impose an unreasonable burden but that requir-
ing only a speculative possibility would allow the excep-
tion to swallow the rule. Accordingly, the court concluded
that a prospective law enforcement action is one that
is at least a reasonable possibility, which, it explained,
is more than theoretically possible, but not necessarily
likely or probable, to occur.6
We agree with the trial court that this is the most
reasonable reading of the statute. Because § 1-210 (b)
seeks to strike a balance between competing public
goods, fostering openness and transparency while pro-
tecting important governmental functions that demand
a degree of confidentiality, it makes sense that the legis-
lature would have carved out an exception only for law
enforcement actions that are, at the very least, reason-
able possibilities. In at least one instance, the commis-
sion has articulated that this is the standard that it
applies. See Graeber v. Chief, New Haven Police Dept.,
Freedom of Information Commission, Docket No. FIC
2016-0865 (September 27, 2017).7
The law enforcement exception plausibly could be
read to impose an even more exacting standard, such
that records would be exempt only if an arrest or prose-
cution is pending or likely. That would be consistent
with the overarching principle that FOIA exceptions
should be narrowly construed in favor of disclosure.
See, e.g., Lieberman v. Aronow, supra, 319 Conn. 754–
55. Like the trial court, however, we would require a
clear statement of legislative intent before concluding
that the legislature wanted to require law enforcement
agencies to disclose sensitive and potentially prejudicial
investigatory information in the early stages of a homi-
cide investigation or when there are promising leads
that, although not enough to render prosecution likely,
make it eminently possible.
At the same time, we agree with the trial court that
requiring that the police demonstrate only a remote,
speculative, or theoretical possibility of some future
law enforcement action would permit the exception to
swallow the rule and would fly in the face of the well
established principle that FOIA exceptions are to be
narrowly construed. We have recognized that ‘‘[t]he
overarching legislative policy of the [FOIA] is one that
favors the open conduct of government and free public
access to government records. . . . The sponsors of
the [FOIA] understood the legislation to express the
people’s sovereignty over the agencies [that] serve them
. . . and this court consistently has interpreted that
expression to require diligent protection of the public’s
right of access to agency proceedings. Our construction
of the [FOIA] must be guided by the policy favoring
disclosure and exceptions to disclosure must be nar-
rowly construed.’’ (Internal quotation marks omitted.)
Stamford v. Freedom of Information Commission, 241
Conn. 310, 314, 696 A.2d 321 (1997). With the thumb on
the scale in favor of disclosure, it would be inconsistent
with the purpose of the FOIA to conclude that the law
enforcement exception applies upon a showing that a
law enforcement action is only remotely or theoreti-
cally possible.
Further support for the reasonable possibility stan-
dard can be found in a related statute within the FOIA.
General Statutes § 1-215 establishes a default rule that
records of arrest are public records subject to disclo-
sure pursuant to the FOIA. See General Statutes § 1-215
(b). Included among information that must be redacted
from such records prior to disclosure, however, is ‘‘spe-
cific information about the commission of a crime, the
disclosure of which the law enforcement agency reason-
ably believes may prejudice a pending prosecution or a
prospective law enforcement action . . . .’’ (Emphasis
added.) General Statutes § 1-215 (b) (3). On the one
hand, the presentation of the alternatives of a ‘‘pending
prosecution’’ or a ‘‘prospective law enforcement action’’
in this related statute supports the conclusion that the
legislature viewed the term ‘‘prospective’’ in § 1-210 (b)
(3) (D) as signifying a degree of probability that is
less than ‘‘pending.’’ Otherwise, the term ‘‘prospective’’
would be superfluous. See, e.g., American Promotional
Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937
A.2d 1184 (2008) (‘‘[i]nterpreting a statute to render
some of its language superfluous violates cardinal prin-
ciples of statutory interpretation’’); see also, e.g., id.
(‘‘[i]n construing statutes, we presume that there is a
purpose behind every sentence, clause, or phrase used
in an act and that no part of a statute is superfluous’’
(internal quotation marks omitted)). On the other hand,
the interpretive principle of noscitur a sociis—a word
is known by the company it keeps—suggests that ‘‘pro-
spective’’ is not entirely unlike ‘‘pending’’ for purposes
of the statutory scheme. Indeed, if a ‘‘prospective law
enforcement action,’’ for purposes of § 1-215, meant
any remotely possible action, then the word ‘‘pending’’
would become unnecessary.
Insofar as the statutory language is ambiguous, we
also may consider the legislative history of § 1-210 (b)
(3) (D). See General Statutes § 1-2z. ‘‘Like the federal
Freedom of Information Act . . . our state FOIA was
enacted in the aftermath of the Vietnam War and [the]
Watergate [scandal] . . . [when] people were fed up
with furtive government and had los[t] faith in govern-
ment and politicians.’’ (Citation omitted; internal quota-
tion marks omitted.) Commissioner of Mental Health &
Addiction Services v. Freedom of Information Com-
mission, 347 Conn. 675, 706 n.16, 299 A.3d 197 (2023).
Prior to the 1975 amendments to the predecessor stat-
ute, the law enforcement exception was broadly worded
and exempted any ‘‘investigatory files compiled for law
enforcement purposes, except to the extent available by
law to a private citizen . . . .’’ General Statutes (Rev.
to 1975) § 1-19. Among other changes, P.A. 75-342, § 2,
enacted in the wake of, and in response to, the Watergate
scandal, dramatically scaled back the scope of the law
enforcement exception, adding the current language
limiting the exception to information to be used in, and
prejudicial to, a prospective law enforcement action.
The legislative history of P.A. 75-342, § 2, is replete
with statements indicating that the intent of the spon-
sors was to increase transparency, give the FOIA sharper
teeth, and craft a bill that could stand side by side
with the strongest freedom of information laws in the
country. For example, Representative Raymond J. Dzi-
alo, the sponsor of the bill in the House of Representa-
tives, explained that ‘‘[t]he [s]tate’s existing right to
know law has been ineffective. It has been unable to
protect the public . . . unable to mandate that records
are available . . . . This [b]ill before you embodies the
significant, no I must say, sweeping changes [to] the
present law.’’ (Internal quotation marks omitted.) 18
H.R. Proc., Pt. 8, 1975 Sess., p. 3895.8
Indeed, the authors of P.A. 75-342, § 2, took the
extraordinary measure of drafting an informal preamble
that, although not included in the FOIA itself, was high-
lighted during the legislative debates to emphasize the
purpose of the act: ‘‘[T]he [l]egislature finds and declares
that secrecy in government is inherently inconsistent
with [a] true democracy. That the people have a right
to be fully informed of the actions taken by public
agencies in order that they may retain control over the
instruments they have created. . . . That the people in
delegating authority do not give their public servants
the right to decide what is good for them to know and
that it is the intent of this [l]aw that . . . the records
of all public agencies be open to the public except in
those instances [in which a] superior public interest
requires confidentiality.’’ (Internal quotation marks
omitted.) Id., p. 3911, remarks of Representative Martin
B. Burke. As the Senate sponsor, Senator Robert L.
Julianelle summarized the intent of the amendments:
‘‘[W]e do not have any right to withhold, except with
the agreement of the people, any information, any pro-
ceedings, anything at all, that we do for the benefit of
the people.’’ 18 S. Proc., Pt. 5, 1975 Sess., p. 2325. He
further remarked that ‘‘it is the intent of the law that
actions taken by public agencies be taken openly and
their deliberations be conducted openly and that the
record of all public agencies be open to the public
except in those instances [in which] a superior public
interest requires confidentiality. . . . We exclude the
right to public records in only some very serious areas
. . . [that are] sacred and should [not be] subject to
the law.’’ Id., pp. 2323–24.
When this court previously reviewed this legislative
history, it observed that, although the FOIA evidences
‘‘a strong legislative policy in favor of the open conduct
of government and free public access to government
records,’’ it ‘‘does not confer [on] the public an absolute
right to all government information.’’ Wilson v. Freedom
of Information Commission, 181 Conn. 324, 328, 435
A.2d 353 (1980). Rather, this court concluded, this legis-
lative history ‘‘reflects a legislative intention to balance
the public’s right to know what its agencies are doing,
with the governmental and private needs for confidenti-
ality.’’ Id.
With respect to the exceptions to the disclosure
requirement, the legislative history reinforces this idea
that the legislature sought to strike a balance: open
access to public records must be balanced against cer-
tain compelling public interests in confidentiality. See,
e.g., 18 S. Proc., supra, p. 2324, remarks of Senator
Julianelle; see also, e.g., 18 H.R. Proc., supra, p. 3910,
remarks of Representative Burke (‘‘There should be no
mistake about the legislative intent of this bill. . . .
[A]ll records of all governmental agencies shall be in the
public domain with few and very precise exceptions.’’).
Both the text of the statute and its legislative history
thus rule out the most extreme readings of the term
‘‘prospective’’—requiring that the law enforcement agency
establish that there is a pending law enforcement action
or that it demonstrate that there is a mere theoretical
possibility of one. With respect to the remaining possi-
ble meanings of ‘‘prospective’’; i.e., probable, likely, or
possible; we rely on the principle that the FOIA effects a
balance between the competing interests and conclude
that the legislature intended the law enforcement
exception to apply only when a law enforcement agency
is able to make the threshold showing that an arrest
or prosecution is at least reasonably possible. It need
not be probable or likely, but it must be more than
only remotely or theoretically possible. This standard
effectuates the legislative intent of providing open
access to public records without unduly hamstringing
ongoing investigations.
2
The law enforcement exception is limited to records
‘‘to be used’’ in a prospective law enforcement action.
General Statutes § 1-210 (b) (3) (D). Although the trial
court did not discuss this element of the statutory lan-
guage, and the parties have not addressed it directly,
we briefly touch on it here because the Appellate Court
has construed it in a manner that has led the commis-
sion to misapply the ‘‘prospective law enforcement
action’’ requirement of § 1-210 (b) (3) (D).
In Dept. of Public Safety v. Freedom of Information
Commission, 51 Conn. App. 100, 720 A.2d 268 (1998),
the Appellate Court concluded that ‘‘the statute is not
satisfied and, consequently, information is not exempted
from disclosure by the mere good faith assertion that
the matter to which the information pertains is poten-
tially criminal. [Rather], there must be an evidentiary
showing that the actual information sought is going to
be used in a law enforcement action . . . .’’ (Emphasis
added.) Id., 105. Judges of the Superior Court have
embraced and relied on this language. See, e.g., Nastro
v. Freedom of Information Commission, Docket No.
HHB-CV-XX-XXXXXXX-S, 2008 WL 3852748, *3 (Conn.
Super. July 23, 2008); see also, e.g., Tuccitto v. Dept.
of Public Safety, Division of State Police, Freedom
of Information Commission, Docket No. FIC 2004-029
(October 27, 2004) (relying on Appellate Court’s deci-
sion in Dept. of Public Safety for proposition that law
enforcement exception ‘‘requires an evidentiary show-
ing that the records are in fact to be used in a prospec-
tive law enforcement action’’). Under this standard,
respondents would have to establish that it is at least
probable, if not certain, that the subject records would
be used for an arrest or prosecution.
We agree with the trial court that the Appellate
Court’s analysis of the law enforcement exception in
Dept. of Public Safety was dictum. That case involved
an accidental drowning, and, by the time the document
request had been made, it was clear that there had
been no criminal conduct. See Dept. of Public Safety v.
Freedom of Information Commission, supra, 51 Conn.
App. 103. A law enforcement action was neither pending
nor even reasonably possible. The statement of the legal
standard in Tuccitto was likewise dictum, although for
the opposite reason. In that case, a prosecution was
pending, and the only question was whether, under the
prejudice prong of § 1-210 (b) (3) (D), release of the
investigation records was likely to bias potential jurors.
See Tuccitto v. Dept. of Public Safety, Division of State
Police, supra, Docket No. FIC 2004-029. In both cases,
then, the result would have been the same under any
plausible standard.
In any event, we disagree with the standard annun-
ciated in Dept. of Public Safety. It would make little
sense for the legislature, having required only that a
prospective law enforcement action be reasonably pos-
sible, to then impose a far more exacting requirement
under which respondents must demonstrate that it is
probable or certain that they will use the requested
information in such an action. When possible, we must
construe statutes to create a coherent and cohesive
scheme. See, e.g., State v. Victor O., 320 Conn. 239,
249, 128 A.3d 940 (2016). In the absence of any further
guidance, we will presume that the same standard gov-
erns both elements of the first prong of the statutory
exception, and that the respondents must establish for
any requested document only that it is at least reason-
ably possible that the information contained therein
will be used in support of an arrest or prosecution. To
the extent that Dept. of Public Safety imposed a differ-
ent standard, it is overruled.
C
We next consider certain policy arguments advanced
by the respondents and/or the Division of Criminal Jus-
tice as amicus curiae. The division contends that the
reasonable possibility standard should be deemed satis-
fied whenever a law enforcement ‘‘investigation is open,
a suspect has been identified, and no insurmountable
obstacles exist to a future prosecution.’’ In support of
this three factor standard, the division describes a hand-
ful of cold cases in which the police ultimately were
able to make arrests, many years after the crime, when
new witnesses or suspects emerged who made state-
ments that included details that only the killer or killers
could have known. If those case files had been made
public, the division argues, prosecutions would have
been ‘‘grievously, if not fatally, prejudiced . . . .’’
We recognize that some added leeway must be afforded
for investigations of crimes such as homicide. The divi-
sion, however, fails to identify any support for its pro-
posed rule in the language or legislative history of the
statute. Moreover, as discussed, in construing FOIA
exceptions, we long have eschewed a categorical
approach that fails to account for the specific facts
and context of each individual case. See, e.g., Director,
Retirement & Benefits Services Division, Office of the
Comptroller v. Freedom of Information Commission,
256 Conn. 764, 779, 775 A.2d 981 (2001). The division’s
proposed rule would follow that impermissible path,
treating the identification of a suspect as dispositive,
for example, without considering key factors such as
the strength of the evidence pointing to that suspect
and whether, with the passage of significant time, the
early identification of a suspect may become less mean-
ingful.
The same can be said for the fact that an investigation
remains open and free of insurmountable obstacles to
a future prosecution. As a result, we are not prepared to
say that those three factors, without more, will always
satisfy the reasonable possibility standard. Depending
on the context, they may establish no more than a
theoretical possibility. As we explained, a theoretical
possibility standard would not be consistent with the
overarching principles underlying the FOIA, would
upset the careful balance the legislature sought to
strike, and would be incompatible with what we believe
to be the fairest reading of the statutory requirement
that the information being sought is to be used in a
prospective—that is, at least reasonably possible—law
enforcement action.
Moreover, to the extent that policy considerations
such as those raised by the division are relevant,9 we
are concerned that this interpretation of the statute
places too much weight on the law enforcement side
of the scale. Adopting the rule advanced by the respon-
dents and the division would preclude the public from
exercising any effective oversight, not only in murder
cases, but in all cases in which any applicable statute
of limitations has not run. This position also ignores the
fact that the legislature through this exception sought
to balance law enforcement’s interests in solving crimes
and bringing wrongdoers to justice against more than
just the public’s interests in transparency and oversight.
With the passage of time, it becomes increasingly likely
that openness, rather than secrecy, is what will unearth
that elusive lead that will help the police solve the case.
As the trial court explained, after having reviewed the
relevant research, ‘‘a fresh pair of eyes’’—potentially
millions of eyes in the age of Internet crowdsourcing—‘‘is
far more likely to improve the odds of an arrest and
successful prosecution than it is to prejudice that out-
come.’’ (Internal quotation marks omitted.)
Although the division tells a compelling tale of cases
in which the police were able to solve long cold murders
because investigatory records were not ‘‘[p]remature[ly]’’
disclosed, we are confident that, for every such case,
there is an equally powerful, countervailing pragmatic
case for transparency. Some of the most paradigmatic
instances in which law enforcement files were inappro-
priately shielded from public view, and heinous crimes
were solved only when sunlight finally broke through,
can be found in the civil rights era of the 1950s and
1960s. The history of that era is replete with incidents
in which law enforcement agencies failed to diligently
investigate the murders of Black victims and then
resisted disclosing investigation records that would
have both shed light on their own indolence, if not
complicity, and allowed victims’ families and outside
organizations, sometimes with the assistance of docu-
mentary filmmakers, to help bring the killers to justice.
See generally J. McDonald, ‘‘Heroes or Spoilers? The
Role of the Media in the Prosecutions of Unsolved Civil
Rights Era Murders,’’ 34 Ohio N.U. L. Rev. 797 (2008).
These examples demonstrate that a theoretically possi-
ble standard poses too great a risk of unfettered and
unchecked police discretion. Indeed, as we mentioned
in part II B 1 of this opinion, the underlying purpose
of the FOIA was the recognized need to increase govern-
ment accountability in the wake of Watergate. The legis-
lative history of the FOIA makes clear that the
legislature has recognized a particular need for robust
oversight of local law enforcement agencies.10
The respondents and the division also contend that,
as a matter of public policy, we should defer to the
expertise of law enforcement agencies and officials in
such matters. Once again, however, nothing in the statu-
tory scheme or the legislative history gives any indica-
tion that the legislature intended that the commission
should defer to the expertise of law enforcement agen-
cies or officials when construing or applying the law
enforcement exception. Quite the contrary, in the con-
text of exceptions to disclosure of records, the legisla-
ture has been clear when it intends to give the agency
possessing the subject records increased deference.
Several FOIA exceptions expressly provide that the
commission must defer to the determination of the
respondent agency or official as to whether the excep-
tion is satisfied. See, e.g., General Statutes § 1-210 (b)
(1) (exception for preliminary drafts or notes when ‘‘the
public agency has determined that the public interest
in withholding such documents clearly outweighs the
public interest in disclosure’’); General Statutes § 1-210
(b) (18) (exception for correction records that Commis-
sioner of Correction has reasonable grounds to believe
may result in safety risk if disclosed); General Statutes
§ 1-210 (b) (19) (exception for other records reasonably
likely to result in safety risk if disclosed, as determined
by identified public agencies); General Statutes § 1-210
(b) (24) (exception for responses to bids or proposals,
so long as public agency certifies that public interest
in disclosure is outweighed by public interest in confi-
dentiality). The legislature could have drafted § 1-210
(b) (3) in the same manner as those exceptions, granting
the law enforcement agency or official broad discretion
to determine whether the public interest in disclosure
is outweighed by the public interest in confidentiality.
It did not.
D
We next consider how the reasonable possibility stan-
dard that we articulated applies to law enforcement
records compiled in connection with the investigation
of a murder, especially in cases, such as the present
case, in which years have passed and the leads are few
and far between. Although such cases implicate the
same balancing of interests present in any FOIA request
for law enforcement records, they also involve distinct
considerations. In particular, the fact that there is no
statute of limitations means that unsolved murder inves-
tigations may remain open, at least nominally, forever.
Most crimes, by contrast, feature a statute of limitations
of five years or less, which means that, by the time an
investigation has gone cold, a law enforcement action
will no longer be possible. See General Statutes § 54-
193 (c) and (d); see also footnote 2 of this opinion.
We emphasize that the commission has publicly announced
its strong inclination to trust the representations of law
enforcement officials in these matters.11 At the same
time, however, the commission has taken seriously this
court’s repeated admonition that ‘‘the claimant of [an
FOIA] exemption [must] provide more than conclusory
language, generalized allegations or mere arguments of
counsel.’’ (Internal quotation marks omitted.) Director,
Retirement & Benefits Services Division, Office of the
Comptroller v. Freedom of Information Commission,
supra, 256 Conn. 773; see, e.g., Hartford v. Freedom of
Information Commission, 201 Conn. 421, 434–35, 518
A.2d 49 (1986) (‘‘[t]he commission is not obliged to
accept an agency’s generalized and unsupported allega-
tions relating to documents claimed to be exempt from
disclosure’’ (internal quotation marks omitted)).
For murder and, presumably, other crimes that
involve lengthy or no statutes of limitations,12 the trial
court adopted and applied a nonexclusive, multifactor
test to determine whether a future law enforcement
action is reasonably possible. Although we agree that
the factors identified by the trial court are relevant to
the analysis, we caution that individual factors may
vary in importance from case to case, and the court’s
test is not intended to serve as a complete or mechanis-
tic checklist. Indeed, another relevant consideration
that the trial court implicitly or explicitly considered,
but did not expressly list, is the empirical likelihood
that crimes of this sort will be solved after years of
fruitless investigation.
Pursuant to this multifactor test, the commission
must consider, among other things, ‘‘(1) the length of
time that has elapsed since the commission of the crime;
(2) the length of time that has elapsed since the law
enforcement agency last obtained significant new evi-
dence or leads, i.e., whether the agency has effectively
exhausted all investigatory leads; (3) whether the agency
has classified the investigation, even if technically open,
as a cold case or the functional equivalent thereof; (4)
the number of investigators currently assigned to the
investigation; (5) the amount of time investigators cur-
rently commit to the investigation; (6) whether the
agency has a suspect and, if so, whether the agency’s
suspicion is supported by more than speculation; [and]
(7) whether advances in [science] or technology, such
as advances in DNA analysis, may lead to new evidence
or permit the fruitful reexamination of existing
evidence.’’
Other courts have considered similar factors in com-
parable cases. See, e.g., Chastant v. Prudential Ins. Co.
of America, Docket No. 11-CV-626, 2011 WL 4007863,
*4–5 (W.D. La. September 8, 2011) (applying Louisiana
law); see also, e.g., Dept. of Kentucky State Police v.
Teague, Docket No. 2018-CA-000186-MR, 2019 WL
856756, *2 (Ky. App. February 22, 2019). In our view,
such factors should be helpful to the commission in
carrying out the legislative intention that the commis-
sion strike a balance between the public’s right to access
government information and the legitimate interests of
law enforcement agencies and the state in investigating
and prosecuting crimes.
In applying these factors, both independently and in
relation to each other, sight should not be lost of the
two fundamental questions that underlie them. First,
does the law enforcement agency continue to actively
and earnestly investigate the crime, or has the investiga-
tion, although technically still open, essentially gone
cold? In the initial months and years following a homi-
cide, when significant resources are being dedicated to
a case and new leads are regularly pursued, it generally
is not difficult for a law enforcement agency to establish
that arrest and prosecution are at least reasonably pos-
sible. The commission has deferred heavily to the repre-
sentations of law enforcement officials under such
circumstances. See, e.g., Hoda v. Chief, New Haven
Police Dept., Freedom of Information Commission,
Docket No. FIC 2007-143 (January 23, 2008) (finding
that law enforcement exception was satisfied when
FOIA request was made approximately five months
after murder and police were actively pursuing leads
and suspect); Rouen v. Chief, Groton Police Dept., Free-
dom of Information Commission, Docket No. FIC 2006-
064 (January 24, 2007) (finding that law enforcement
exception was satisfied when FOIA request was made
approximately thirteen months after murder and police
were still actively investigating); Poitras v. Chief, Port-
land Police Dept., Freedom of Information Commission,
Docket No. FIC 1998-085 (August 12, 1998) (deferring
to state’s attorney and finding that law enforcement
exception was satisfied when FOIA request was ‘‘made
very early in the [murder] investigation’’).
At some point, however, when years have passed,
solid leads have dried up, and the case has been classi-
fied (whether formally or de facto) as cold, it may no
longer be reasonable for the commission to defer to
representations of law enforcement agencies, without
more. The commission has long recognized this as well.
See, e.g., Estate of Mazzotta v. Chief, Middletown Police
Dept., Freedom of Information Commission, Docket
No. FIC 2012-033 (November 14, 2012) (requiring disclo-
sure of records in homicide investigation that had gone
dormant after nine years); Gura v. Chief, New Haven
Police Dept., Freedom of Information Commission,
Docket No. FIC 2001-147 (February 13, 2002) (requiring
disclosure three years after homicide when respondent
merely represented that investigation was ongoing); see
also, e.g., Donovan v. Greenwich Police Dept., Freedom
of Information Commission, Docket No. FIC 87-173
(February 26, 1992) (following in camera review, requir-
ing disclosure eight years after homicide, even though
investigation remained active). It is largely in the gray
areas between these two sets of cases that specific
factors, such as those identified by the trial court, will
be most illuminating.
Second, once a case has gone cold, does there remain
a reasonable possibility that the investigation ultimately
will culminate in some law enforcement action? This
might be true, for example, if the police recently have
unearthed significant new evidence or leads, if they
can identify emerging technologies with the reasonable
potential to move the case forward, or if other factors,
such as the existence of evidence tending to incriminate
a particular suspect, suggest a reasonable possibility of
a law enforcement action. The commission is free to
conclude, consistent with its prior practice, that the
longer an investigation has been cold, in name or effect,
the greater the burden on the respondents to affirma-
tively demonstrate that a prospective law enforcement
action remains a reasonable possibility.
III
We now consider whether the existing administrative
record is sufficient to permit this court to apply the
newly adopted reasonable possibility standard as a mat-
ter of law. The trial court, in affirming the decision of
the commission, concluded, as a matter of law, that
only one outcome was possible. The court concluded
that the case had gone cold and that the respondents
had failed to provide any testimony or other evidence,
beyond pure speculation, that would satisfy the new
standard that it had articulated and to establish anything
more than a remote or speculative possibility that the
investigation will bear fruit. The court also concluded
that, in light of the available statistics, there is no more
than a theoretical possibility that the police will bring
the perpetrator to justice when a case has been cold
for this many years.
On the basis of the record, we do not agree. The
respondents bore the burden before the commission
of establishing not only that there was a reasonable
possibility that the investigation will result in a law
enforcement action, but also that, for each individual
document or set of documents sought to be withheld,
it is reasonably possible that the requested files contain
information that will be used in such a law enforcement
action and that disclosure of that information would
be prejudicial.
In support of their assertion that the law enforcement
exception applied, the respondents established the fol-
lowing through Sudock’s testimony: The case remains
open, and the police have identified a suspect. Sudock
typically works on the case at least once a month and
periodically receives new leads, which he then investi-
gates. The police department monitors advances in
forensic technology, including DNA technology, that
could yield a break in the case.
Although the commission found this evidence to be
insufficient to satisfy the respondents’ burden, we find
it significant that the commission’s final decision was
predicated, as we explain hereinafter, on the clearly
erroneous factual finding that the police department
had not identified a suspect and, potentially, on the
application of a standard that required the respondents
to demonstrate either an actual or pending law enforce-
ment action. Because application of the reasonable pos-
sibility standard that we adopted in this opinion is fact
intensive, we conclude that the case must be remanded
to the commission for further proceedings. See, e.g.,
Great Plains Lending, LLC v. Dept. of Banking, 339
Conn. 112, 131–32, 143, 157, 259 A.3d 1128 (2021)
(remand to Banking Commissioner for further proceed-
ings was required to determine whether plaintiff was
entitled to status as ‘‘arm of the tribe’’ for purposes of
tribal sovereign immunity because minimal evidence in
administrative record was insufficient to permit court
to apply newly adopted standard as matter of law); Ann
Howard’s Apricots Restaurant, Inc. v. Commission on
Human Rights & Opportunities, 237 Conn. 209, 233,
676 A.2d 844 (1996) (remanding for further proceedings
in which complainant would have opportunity to pres-
ent additional admissible evidence). We reach this con-
clusion for three reasons.
A
First, we agree with the respondents that the commis-
sion’s decision rested in part on clearly erroneous fac-
tual findings for which there was no substantial
evidence in the record. ‘‘Judicial review of an adminis-
trative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable.’’ (Internal quotation marks omit-
ted.) Amaral Bros., Inc. v. Dept. of Labor, 325 Conn.
72, 84–85, 155 A.3d 1255 (2017). In the present case,
the commission twice stated in its decision that ‘‘the
. . . police [department has] not identified any sus-
pects . . . .’’ This finding was without support in the
record and, in fact, was contradicted by the undisputed
testimony of both witnesses.13
Sudock testified that the police department had
enough DNA to develop suspects. He further testified
that the department had long been close to solving
the crime and that it had a ‘‘number one’’ suspect. He
confirmed specific details about that suspect, most
notably that the suspect’s cell phone had been unchar-
acteristically turned off during a twenty-four hour
period around the time of the homicide.
Hamburg corroborated Sudock’s testimony. He testi-
fied that he had been informed that the DNA evidence
in the police department’s possession ‘‘was enough to
develop suspects . . . .’’ He recalled that, during the
2019 meeting with Sudock, he was informed that the
department had had the same ‘‘number one’’ suspect
since March 7, 2010, and he indicated that Sudock had
asked repeatedly about one relative’s potential involve-
ment in the crime. He also confirmed that Sudock had
shared information regarding the suspect’s cell phone
records.
In the absence of any conflicting testimony or deter-
mination that both witnesses lacked credibility, the
commission’s statement that the police department had
not identified any suspects in the homicide was clearly
erroneous. Although the department may not have pub-
licly named any suspects, it had identified at least one.14
The lack of evidence to support the commission’s find-
ings, however, does not end our inquiry. ‘‘Substantial
prejudice [arising from the commission’s clearly errone-
ous findings] must be affirmatively shown.’’ (Internal
quotation marks omitted.) Lawrence v. Kozlowski, 171
Conn. 705, 714, 372 A.2d 110 (1976), cert. denied, 431
U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); see
also General Statutes § 4-183 (j). Although it is a close
call, we agree with the respondents that this standard
is satisfied.
The commission distinguished the present case from
two previous cases in which it had found that release of
requested records would be prejudicial to a prospective
law enforcement action, largely on the basis that, in
those cases, the police department had identified one
or more suspects. See footnote 14 of this opinion. The
erroneous statement that the department had not identi-
fied any suspects thus appears to have been important
to the commission’s determination that the department
failed to provide nonspeculative evidence that the
requested records would be used in, and their disclo-
sure would be prejudicial to, a prospective law enforce-
ment action. As we noted in part II D of this opinion,
the identification of a suspect is one of the key factors
that the commission may consider when determining
whether a law enforcement action is a reasonable possi-
bility. Accordingly, the case must be remanded to give
the commission an opportunity to consider what weight
and importance, if any, to give to the testimony that
the department identified a prime suspect early in
the investigation.15
B
Second, although it is not entirely clear, it does not
appear that the commission applied the reasonable pos-
sibility standard in the present case. In its final decision,
the commission repeatedly identified as its basis for
declining to find that the respondents had established
that there was a prospective law enforcement action
their failure to present evidence of a ‘‘specific,’’ ‘‘expected,’’
‘‘identified,’’ or ‘‘anticipated’’ law enforcement action.
The commission’s proposed final decision, which was
prepared by the hearing officer, went even further, stat-
ing that Sudock ‘‘could not identify an actual prospec-
tive law enforcement action and could only provide
speculation.’’ (Emphasis added.) Although the commis-
sion ultimately removed the word ‘‘actual’’ from its final
decision, it is unclear whether this represented a sub-
stantive change. In short, the commission’s final deci-
sion could be understood to require a probability, even
a certainty, that the requested records will be used for
an arrest or prosecution.16 Such a stringent standard is
not consistent with the plain language of the statute.
Moreover, although deference is due to the commis-
sion’s factual findings, in this instance, its findings, such
as that the respondents’ claims were wholly speculative,
are conclusory and may well be tied up with the legal
standard that it applied. Application of the new standard
to the existing record, therefore, would run the risk of
this court’s ‘‘substitut[ing] its judgment for that of the
agency as to the weight of the evidence on questions
of fact,’’ contrary to the requirements of § 4-183 (j). On
remand, the commission will have the opportunity to
apply the new standard we adopted to assess whether
some law enforcement action remains a reasonable pos-
sibility at this juncture.
C
Third, we note that, in concluding that a law enforce-
ment action was not reasonably possible, the trial court
relied on a body of empirical, statistical evidence sug-
gesting that the probability of a prosecution in cold
murder investigations such as this ‘‘approaches zero’’
and that, at some point, ‘‘a ‘fresh pair of eyes’ . . . is
far more likely to improve the odds of an arrest and
successful prosecution than it is to prejudice that out-
come.’’ The commission was the finder of fact in this
matter, however, and it should have the opportunity to
review any available statistical data in the first instance,
with the input of the parties and any expert testimony
they care to submit, before making relevant findings.17
Likewise, should the commission choose to follow the
trial court in adopting a more statistical, probabilistic
approach to such cases, it may consider, in the first
instance, what sort of showing is necessary to establish
a reasonable possibility. See, e.g., Immigration & Natu-
ralization Service v. Cardoza-Fonseca, 480 U.S. 421,
431, 440, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) (10
percent chance was sufficient to establish reasonable
possibility); Lumataw v. Holder, 582 F.3d 78, 92 (1st
Cir. 2009) (same). For these reasons, we conclude that
a remand for further proceedings in light of the legal
standard that we articulated in this opinion is required.
IV
There remains the issue of prejudice. The commis-
sion determined not only that the respondents had
failed to establish that any requested records were to
be used in a prospective law enforcement action, but
also that they had not established that disclosure of
the records would be prejudicial to such action. The
respondents challenged both determinations on appeal
to the trial court. Having affirmed the commission’s
decision on the basis of the former determination, the
trial court declined to address the latter.
The respondents cannot prevail unless they satisfy
both prongs of the statutory exception. See, e.g., Com-
missioner of Public Safety v. Freedom of Information
Commission, supra, 312 Conn. 545 n.31. So long as the
commission’s determination as to a lack of prejudice
stands, the respondents can obtain no practical relief
with respect to the issue of a prospective law enforce-
ment action, and any proceedings on remand would be
moot. See, e.g., In re Jorden R., 293 Conn. 539, 557, 979
A.2d 469 (2009).
Ordinarily, then, our conclusion that the commission
failed to properly analyze the prospective law enforce-
ment action prong of the statute would require that
we remand the case to the trial court to give it the
opportunity to consider the prejudice issue. Cf. Equity
One, Inc. v. Shivers, 310 Conn. 119, 125 n.2, 74 A.3d
1225 (2013). Under the circumstances of the present
case, however, we conclude that further review by the
trial court is unnecessary.
First, the two prongs of the statutory exception,
although distinct, are not wholly unrelated. Several of
the factors that the trial court identified as relevant to
the ‘‘prospective law enforcement action’’ prong of § 1-
210 (b) (3) (D), such as the existence of a suspect and
the availability of DNA evidence for future testing, also
go to prejudice. The commission’s reconsideration of
these matters will necessarily bear on prejudice as well.
Second, it seems likely that the commission also
applied the wrong legal standard as to the prejudice
prong. In concluding that there was only speculative
evidence that disclosure of the requested information
would be prejudicial to a prospective law enforcement
action, the commission appears to have (1) relied on
its conclusion that the respondents failed to present
evidence of a ‘‘specific,’’ ‘‘expected,’’ ‘‘identified,’’ or
‘‘anticipated’’ law enforcement action, thus incorrectly
conflating the two prongs of the test, and (2) taken too
literally Sudock’s offhand statement that he could ‘‘go
on with speculating’’ as to how the requested informa-
tion might be used.
Sudock testified that some of the requested records
contain information that only the perpetrator could
know, and that such information, if released, could prej-
udice any future prosecution. In past cases, the commis-
sion has treated such general representations as
sufficient to satisfy the prejudice prong of the test, at
least when borne out by the commission’s in camera
review. See, e.g., Graeber v. Chief, New Haven Police
Dept., supra, Docket No. FIC 2016-0865; Lopez v. Chief,
Bridgeport Police Dept., Freedom of Information Com-
mission, Docket No. FIC 2015-398 (February 24, 2016).
If the respondents’ prejudice showing fell short, it was
not because Sudock failed to testify as to exactly where
and how the documents would be used—requiring that
level of prognostication would be unreasonable. On
remand, any documents that the respondents submit for
in camera review as containing potentially prejudicial
information should be reviewed under the commis-
sion’s established standards.
The judgment is reversed and the case is remanded
with direction to remand the case to the commission
for further proceedings according to law.
In this opinion the other justices concurred.
* This case originally was argued before a panel consisting of Chief Justice
Robinson, Justices D’Auria, Mullins and Ecker, and Judge Elgo. Thereafter,
Justices McDonald and Dannehy were added to the panel and have read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
Because of the potential for confusion—several members of the Hamburg
family are involved in this case, as is the town of Madison and its police
department—we refer to Barbara Beach Hamburg as the victim, to Madison
Hamburg as Hamburg, and to other members of the Hamburg family by
their full name.
2
Sudock testified that, during a cold case review, ‘‘another group of indi-
viduals . . . look at a case, evaluate what investigative steps have [been
taken, and potentially suggest] a different route to go or other evidence to
send . . . to the [state forensic science laboratory] . . . .’’ See Connecticut
Division of Criminal Justice, Cold Case Investigations (2024), available at
https://portal.ct.gov/DCJ/Programs/Programs/Cold-Case-Investigations (last
visited February 16, 2024) (describing cold case unit).
Whereas other jurisdictions variously define a cold case homicide as one
that has not been solved after a period of time ranging from one to five
years after the crime and for which no viable and significant unexplored
leads remain to investigate; see National Institute of Justice, Office of Justice
Programs, U.S. Dept. of Justice, National Best Practices for Implementing
and Sustaining a Cold Case Investigation Unit (July, 2019) pp. 1–2, available
at https://www.ojp.gov/pdffiles1/nij/252016.pdf (last visited February 16,
2024); in Connecticut, the Division of Criminal Justice defines a cold case
simply as one that is ‘‘unsolved for a prolonged period of time.’’ Connecticut
Division of Criminal Justice, supra.
3
At the hearing, Sudock acknowledged that all of the documents at issue
were responsive to Niemeyer’s request, but he took the position that none
of them should be turned over. His stated understanding was that the police
department has a policy of not releasing any records in open investigations.
Ultimately, however, the department did release certain documents related
to the investigation, at various times, both to Niemeyer and to other indi-
viduals.
4
The commission did not order the respondents to provide copies of the
signed witness statements, which are protected under a different FOIA
exception. See General Statutes § 1-210 (b) (3) (C). Accordingly, the only
categories of documents that are at issue in this appeal are the investigatory
records, interrogation transcripts and recordings, and crime scene recordings
and related documents.
5
The parties do not dispute that the first set of statutory requirements is
satisfied; all of the documents at issue are records of a law enforcement
agency that are not otherwise available to the public and that were compiled
in connection with the investigation of a crime.
6
The trial court twice indicated that it had given particular weight to the
decisions of federal courts that, when construing the corresponding—albeit
differently worded—provisions of the federal Freedom of Information Act;
see 5 U.S.C. § 552 (b) (7) (A) (2018); applied a ‘‘pending or reasonably
anticipated’’ standard. (Emphasis omitted; internal quotation marks omit-
ted.) In other places, the trial court indicated that it was adopting the
‘‘reasonable possibility’’ standard, which both the commission and Niemeyer
had advocated for, and we understand that to be the standard the court
ultimately adopted. The trial court never defined that standard, however,
other than to say that it sits somewhere on the spectrum between ‘‘a mere
theoretical possibility’’ and ‘‘likely or probable.’’
With respect to the federal cases, it is worth noting that, although the
United States Court of Appeals for the District of Columbia Circuit has
interpreted the analogous federal FOIA exemption to require a ‘‘pending or
reasonably anticipated’’ law enforcement action, federal courts hearing FOIA
claims have used inconsistent language in their efforts to describe and apply
that standard. At times, those courts have applied what is arguably a less
stringent standard than we articulate here. See, e.g., Citizens for Responsi-
bility & Ethics in Washington v. United States Dept. of Justice, 746 F.3d
1082, 1098 (D.C. Cir. 2014) (stating that ‘‘an ongoing criminal investigation
typically triggers [the exemption]’’); Juarez v. Dept. of Justice, 518 F.3d 54,
59 (D.C. Cir. 2008) (concluding that, ‘‘so long as the investigation continues
to gather evidence for a possible future criminal case, and that case would
be jeopardized by the premature release of that evidence, [the exemption]
applies’’). Moreover, whereas Connecticut courts decide FOIA exemption
claims based on the facts of each case, federal courts may apply a categorical
approach that omits consideration of individual circumstances. Compare
Director, Retirement & Benefits Services Division, Office of the Comptroller
v. Freedom of Information Commission, 256 Conn. 764, 779, 775 A.2d 981
(2001), with United States Dept. of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 776, 109 S. Ct. 1468, 103 L. Ed. 2d 774
(1989). For these reasons, federal cases interpreting this FOIA exemption
may not be as instructive as they initially appear.
7
As we discuss hereinafter, although the respondents rely heavily on
Graeber, in which the reasonable possibility standard was deemed satisfied,
the commission reasonably could find that that case is distinguishable from
the present case because (1) the respondents in Graeber submitted all
responsive records for the commission’s in camera review in order to provide
specific, nonspeculative support for their assertions, and (2) the investiga-
tion in Graeber remained in a different, more active phase, insofar as the
assistant state’s attorney leading the investigation spent at least one day
per week on the case, she was actively supervising a team of detectives in
that regard, and they continued to interview witnesses to the crime. See
Graeber v. Chief, New Haven Police Dept., supra, Docket No. FIC 2016-0865.
8
See also 18 S. Proc., Pt. 5, 1975 Sess., pp. 2323, 2325, remarks of Senator
Robert L. Julianelle; id., p. 2327, remarks of Senator Lawrence J. DeNardis;
18 H.R. Proc., supra, p. 3910, remarks of Representative Martin B. Burke;
Conn. Joint Standing Committee Hearings, Government Administration and
Policy, 1975 Sess., pp. 304–305, remarks of Representative Walter J. Hen-
derson.
9
We note that such arguments are better addressed to the legislature,
and we continue to encourage the legislature to provide as much clarity
and specificity as possible as to how it would strike the balance between
the competing interests at play in cases such as this.
10
Our legislature expressed this sentiment even more clearly when amend-
ing the sister law enforcement exception, § 1-215, in 2015. See, e.g., 58 H.R.
Proc., Pt. 18, 2015 Sess., pp. 5974–75, remarks of Representative Richard
A. Smith (commenting that some police departments are less than forthcom-
ing and that ‘‘the police cannot hide behind closed doors’’); Conn. Joint
Standing Committee Hearings, Government Administration and Elections,
Pt. 1, 2015 Sess., pp. 212–13, remarks of Representative Smith (opining that
police, left unsupervised, can ‘‘become abusive,’’ that police departments
have ‘‘all made mistakes,’’ and that stronger transparency laws ‘‘have the
advantage of making sure that the police now know that they’re being
watched and they need to do a better job at what they’re doing’’); Conn. Joint
Standing Committee Hearings, supra, pp. 214–15, remarks of Representative
David Alexander (referencing ‘‘a couple [of] bad actors’’ who were complicit
in police brutality and raising concerns about hidden arrests and overly
oppressive government). Those amendments are directly relevant to our
understanding of § 1-210 because the primary purpose of the amendments
was to make clear that, during the pendency of an arrest, law enforcement
officials must comply with the broad disclosure requirements of § 1-210 and
not only with § 1-215. See Public Acts 2015, No. 15-164, § 1.
11
See, e.g., Conn. Joint Standing Committee Hearings, Government Admin-
istration and Elections, Pt. 1, 2015 Sess., p. 208, remarks of Colleen M.
Murphy, executive director and general counsel of the Freedom of Informa-
tion Commission (‘‘[B]elieve me . . . if a member of the law enforcement
community comes in and makes that representation to us, we don’t really
[second-guess] it . . . as long as there is . . . any kind of basis for it. . . .
[B]ut that law enforcement [agency] must at least come in and say what those
reasons are and strike that balance between disclosure and confidentiality.’’).
12
Other crimes without statutes of limitations include all class A felonies,
various sexual crimes committed against minors, and certain instances of
escape, hindering prosecution, perjury, and motor vehicle violations
resulting in the death of another person. See General Statutes § 54-193 (a);
see also General Statutes § 54-193 (b) (various crimes featuring statutes of
limitations of ten to thirty years).
13
The respondents raised this issue in their trial brief. The trial court did
not directly address the claim.
14
We are not persuaded that the commission merely intended to distin-
guish the present case, in which no suspect has been publicly named and
identified, from prior cases, in which a specific suspect had been arrested
and was thus known to the public. The commission’s final decision stated
that the respondents failed to identify a suspect in the context of distinguish-
ing the present case from two previous decisions. In neither of those deci-
sions, however, had the prime suspect been arrested or publicly identified.
See Strauss v. Chief, Westport Police Dept., Freedom of Information Com-
mission, Docket No. FIC 2010-487 (May 25, 2011); Rouen v. Chief, Groton
Police Dept., supra, Docket No. FIC 2006-064.
15
To maintain the integrity of their investigation and techniques, law
enforcement agencies often make the required showing by submitting for
the commission’s in camera review any documents that allegedly fall under
the law enforcement exception or otherwise support their claims. See Regs.,
Conn. State Agencies § 1-21j-37 (f) (1) (‘‘[a]ny party or intervenor may request
an in camera inspection of the records claimed to be exempt from disclosure
in a contested case . . . and the presiding officer or the commission may
order such an inspection on request, on such presiding officer’s or the
commission’s own initiative, or on remand by a court’’); see also Hartford
v. Freedom of Information Commission, supra, 201 Conn. 434 n.16 (commis-
sion may review records, affidavits, or testimony in camera to allow respon-
dents to make sufficiently detailed showing without compromising claimed
confidentiality). Indeed, in most of the cases on which the respondents
rely, the law enforcement agency submitted the documents at issue to the
commission for in camera review. See, e.g., Graeber v. Chief, New Haven
Police Dept., supra, Docket No. FIC 2016-0865 (finding that prospective law
enforcement action was reasonable possibility when respondents submitted
copies of all responsive records for in camera review); Hoda v. Chief, New
Haven Police Dept., supra, Docket No. FIC 2007-143 (following in camera
review of investigation records, finding that law enforcement exception was
established); Rouen v. Chief, Groton Police Dept., supra, Docket No. FIC
2006-064 (same); Cotton v. Chief, Meriden Police Dept., Freedom of Informa-
tion Commission, Docket No. FIC 2006-020 (August 9, 2006) (finding that
first prong of law enforcement exception was satisfied on basis of in camera
review). Although this avenue is not required, any party or intervenor may
request an in camera review, and the hearing officer may order such an
inspection on his or her own initiative. In the present case, the respondents
did not submit any records for in camera review, and the commission did
not order them to do so.
16
Notably, the commission’s August 26, 2020 final decision relies on Dept.
of Public Safety v. Freedom of Information Commission, supra, 51 Conn.
App. 105, which we repudiated in part II B 2 of this opinion, for the applicable
legal standard.
17
It is unclear, for example, whether the statistical data support the same
conclusions for murder investigations in which the police have identified a
suspect. It will be for the commission, on remand, to determine what bearing,
if any, broad statistical trends have on the likelihood of success in any
particular case.