ARCHIVE 9/17/08: Benoit Wikipedia Hacker Update: Author Muchnick Appears Headed for FOI Commission Hearing

Benoit Wikipedia Hacker Update: Author Muchnick Appears Headed for FOI Commission Hearing

Wednesday, September 17th, 2008

Below is the text of Irvin Muchnick’s September 17 letter to Tracie C. Brown, principal attorney for the Connecticut Freedom of Information Commission.

Dear Ms. Brown:

As the ombudsman assigned to my complaint, Irvin Muchnick v. Chief, Police Department, City of Stamford; and Police Department, City of Stamford (Docket #FIC 2008-493), you told me the following in a September 11 email:

“It is my understanding that the respondents will not release the videotape through the ombudsman process and will defend their position at a contested hearing. Their position is that a videotaped statement of a witness is equivalent to a signed witness statement and that the exemption to mandatory disclosure found at section 1-210(b)(3), G.S., is applicable to the subject videotape. The respondents, through counsel, believe they have a court case that supports their position. According to their counsel, the case, with which I am not familiar, in effect states that for evidentiary purposes in a criminal case, a video recorded statement of a witness in which that witness affirms who he/she is, is equivalent to a written and signed witness statement.”

At my request, you are seeking from the respondents the name and details of the case they say they will cite, but they have not replied to your message about that.

You also said that my complaint appears to present for the Commission an issue of “first impression,” or without precedent.

At the hearing, I will argue that no such exemption claimed by the respondents can be gleaned from the plain language of the Connecticut statute. To the extent that the Commission interprets the spirit and intent of the statute, I will argue that the Commission should follow its own history of reading exemptions narrowly. As one possible example (and depending on the facts of the respondents’ purported court case), there would be a distinction, in my argument, between records in open criminal cases and those in closed ones. (The record in dispute here is from a closed case.)

In addition, I will introduce the following facts:

* Whether the respondents had received prior requests for access to videotaped interrogations, and if so, the dispositions of those requests. Though I would not argue that earlier failure to assert an exemption controls the ruling here, I would ask the Commission to weigh possible prejudicial invocation of this exemption by the respondents. (My complaint involves a Stamford resident, Matthew T. Greenberg [“Greenberg”], whose father is employed by the city government. In addition, the disputed record is part of a high-profile case impacting one of Stamford’s leading corporate citizens, World Wrestling Entertainment.) If the respondents will not stipulate the facts necessary to address this question, I will seek to subpoena Stamford Police Chief Brent Larrabee and the supervisor of the Stamford Police Department records office, Sergeant George Moran.

* The ruling by the attorney for the Fayette County (Georgia) Sheriff’s Office (FCSO) that the disputed videotape is an open record under Georgia law. I will submit for the record my email correspondence with FCSO attorney Richard P. Lindsey confirming this fact. I do not maintain that Georgia law should determine Connecticut law. However, this point certainly goes to the spirit and intent of the statute in your state, and to the Commission’s interest in keeping Connecticut’s public information practices harmonious with the highest standards nationwide.

* The circumstances of the “partial” video received from the respondents by FCSO and released to me. The FCSO report closing its criminal investigation referenced a Stamford police interview of Greenberg “included in the case file.” The correspondence with attorney Lindsey also raises questions about the time gap before FCSO acknowledged that it did not, in fact, have a complete and faithful copy of the videotape, and whether and when it would be receiving one from the respondents. Equally mysterious was the gap of two weeks between my request to the respondents for the videotape (June 25) and its denial (July 9); throughout that period no mention was ever made to me of the remotest possibility of an exemption claim. If the respondents will not stipulate the facts necessary to support this point, I will seek to subpoena Stamford Police Captains Richard Conklin and Tom Wuennemann, as well as Sergeant Moran. A recent highly publicized case before this Commission, New Haven Register v. New Haven Police Department, though involving different facts, also turned in part on a video record that became a “hot potato” between the Connecticut police department covered under the state Freedom of Information Act, and another agency not covered under the statute.

Please try to make sure my position, as expressed herein, is well understood by the respondents. I continue to believe that it is in everyone’s interest to resolve this dispute by settlement rather than by contested hearing.

Respectfully submitted,

Irvin Muchnick