Conn. Panel Orders Release of Newtown 911 Tapes

Sept. 26--HARTFORD -- The state Freedom of Information Commission Wednesday ordered Newtown police to release 911 calls made from Sandy Hook Elementary School during last December's attack, but the tapes won't be made public while state prosecutors appeal the decision in court.

After an hourlong argument by lawyers on both sides of the issue, the full commission unanimously adopted a hearing officer's report finding that police violated state law when they refused a request by the Associated Press for copies of the tapes. The battle will now move to Superior Court.

"We will appeal," Danbury State's Attorney Stephen J. Sedenksy III said as he left the hearing room. He declined further comment.

Although 911 calls are typically released, Sedensky had ordered Newtown not to make the tapes available, saying they were part of an ongoing criminal investigation. But the commission ruled that even if there were an ongoing investigation of the Newtown shootings, that alone would not justify withholding the tapes under state law.

"In essence, the respondents' position is that the ... records, as part of an ongoing criminal investigation where it is not yet known if a prosecution will ensue, are not required to be disclosed," the commission's decision states. "However, the Appellate Court explicitly rejected this very argument."

To justify keeping the tapes secret, the commission ruled, prosecutors needed to establish that the calls would be used in a prospective law-enforcement action and that their release would damage that action.

Commission Chairman Owen Eagan said prosecutors failed to establish those elements during a previous evidentiary hearing, and he noted that neither Sedensky nor Newtown police officials listened to the 911 calls before arguing that they were exempt from disclosure.

"You made general statements," Eagan said, "but you never even reviewed the tapes."

Sedensky said listening to the tapes "isn't something that needed to be done" for him to conclude that their release would prejudice the Newtown investigation. He said he knew the tapes contained statements by witnesses to the shooting and said authorities may not know the relevance of a piece of evidence until well into an investigation.

But attorney William Fish, representing the Associated Press, said the state's freedom of information law sets a higher bar than that for withholding records. He said there may be cases where 911 tapes might appropriately be withheld, but in this case, prosecutors did not meet their burden of establishing that the tapes were legally exempt.

Several commissioners who heard the tapes also said they heard nothing that suggested any law-enforcement action would be jeopardized by their release.

Sedensky said the commission should protect private citizens, whose anguished calls to police shouldn't "become fodder for the evening news." And he said ordering the release of emergency calls against the wishes of law enforcement could give criminals the ability to demand access to evidence before investigators had determined its relevance.

But Fish said Sedensky's interpretation of the law would allow prosecutors to keep every fact in every criminal investigation secret indefinitely, which he said was not the legislature's intent.

Sedensky also argued that the tapes were covered by state laws making certain child-abuse records confidential, and by a law passed in response to the Newtown massacre permitting police to withhold certain emergency audio transmissions.

But the commission rejected those arguments, saying the child-abuse statute applied only to records involving abuse by individuals entrusted with the care or welfare of a child, and the new law covered only audio transmissions by first-responders, not members of the public.

The 911 tapes, as well as records related to police activity at the home of Adam Lanza, who killed 26 people inside the school, were requested the by the Associated Press on Dec. 14, the day of the shooting. State and local officials have declined to release most details about the shooting and sought changes in state law that would restrict the release of certain records related to the attack.

A task force of legislators, criminal-justice representatives and journalists is now reviewing state laws on transparency and freedom of information.

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