ARCHIVE 10/22/08: Author Muchnick’s Draft Statement of Facts in ‘Benoit Wikipedia Hacker’ Police Video FOI Case

Author Muchnick’s Draft Statement of Facts in ‘Benoit Wikipedia Hacker’ Police Video FOI Case

Wednesday, October 22nd, 2008

Below is the text of an October 22 email sent to Connecticut Freedom of Information Commission ombudsman Tracie C. Brown for forwarding to City of Stamford assistant corporation counsel Michael S. Toma.

Dear Attorney Toma:

As discussed, I am sharing with you (and my blog readers) a draft of my evidentiary presentation. Stipulation of as much as possible of what is below would make our November 21 hearing more efficient.

Again as mentioned previously, I seek evidence in one area in which only the respondents could provide authoritative information: the past history of requests to the Stamford Police Department for public copies of videotaped interrogations. Please let me know if the respondents will agree to produce this evidence without a subpoena.

A settlement along the lines I have previously suggested (i.e., the respondents enable me to receive the subject record via the third-party out-of-state law enforcement agency, rather than directly) is easy to finalize at this time. It will be more difficult, so to speak, on the courthouse steps. I have purchased my airline ticket and I am budgeting the effect of another month’s delay on the final schedule for my book.

Irvin Muchnick

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DRAFT STATEMENT OF FACTS FOR THE EVIDENTIARY HEARING

1. The facts in the complaint are stipulated and will be briefly recited.

2. The subject record was created by the Stamford Police Department (SPD) for the Fayette County, Georgia, Sheriffs Office (FCSO). (FCSO’s February 2008 report closing the Chris Benoit double homicide/suicide investigation [FCSO Report].)

2. The Stamford Advocate reported that the subject record was a videotape. (Stamford Advocate article, July 3, 2007.)

3. The FCSO Report named the Stamford resident who was interrogated by SPD and stated that the subject record was included in the case file. (FCSO Report.)

4. On or about June 18, 2008, I spoke to SPD Captain Richard Conklin about acquiring the subject record directly from SPD. Captain Conklin referred me to Sergeant George Moran, a supervisor at the records office. (Complainant’s testimony.)

5. On June 25, 2008, FCSO Attorney Richard P. Lindsey stated, “As I understand it, the Sheriff does not have a copy but is getting it from the law enforcement agency which conducted the interview. I have no doubt that it is open records.” (Email printout.)

6. The statement that the Sheriff does not have a copy contradicts the representation in paragraph 3 above.

7. Later on June 25, 2008, I faxed SPD Chief Brent Larrabee, with a copy to FCSO Attorney Lindsey, asking in part if FCSO had contacted SPD for a copy of the subject record. (Fax printout.) There was no reply from SPD. (Complainant’s testimony.)

8. On June 26, 2008, SPD Sergeant Moran sent me an intake form confirming that my request for the subject record was in process. (Fax printout.)

9. On June 26, 2008, FCSO Attorney Lindsey stated, “As soon as we have them, I will get to you.” (Email printout.)

10. On June 27, 2008, FCSO Attorney Lindsey stated, “If I understand what happened, this task (of reviewing the videotape) was delegated by [FCSO Detective] Ethon [Harper] to another detective.Ethon believed that the review was done when, I believe, the other detective simply discussed the results of the interview with the law enforcement agent in Conn and did not actually view the tape.To my knowledge, FCSO never had possession of the videotape.” (Email printout.)

11. On July 1, 2008, FCSO Detective Harper stated, through Attorney Lindsey, “We have had and still do have the video they sent us.The video cuts out after just a couple of minutes, so there is no recorded interview.” (Email printout.)

12. On July 1, 2008, I requested a copy of FCSO’s partial video. (Email printout.)

13. On July 3, 2008, FCSO Attorney Lindsey stated, “[A]s I understand the situation, the video is basically worthless. He later stated, While I’ve not seen it, from all that I have heard it is not the proverbial smoking gun.” (Email printouts.)

14. On July 7, 2008, SPD Captain Conklin stated in part, “From what I understand, the dupe that we made and sent down south of our video cut off for some reason after some time. But our original is OK. I think they’ve requested another copy of that.” (Stipulated complaint facts.)

15. Later on July 7, 2008, FCSO Attorney Lindsey stated, “I cannot confirm that statement [by SPD Captain Conklin in paragraph 14].” He added, “If and when [the subject record] arrives, I’ll have that copied and sent to you.” (Email printout.)

16. On July 8, 2008, I attempted to clarify the entire scenario in a fax to SPD Chief Larrabee, with copies to SPD Sergeant Moran and FCSO Attorney Lindsey. (Fax printout.) SPD did not respond.

17. The partial video from FCSO was received by me on July 14, 2008. I am submitting for the record my redacted transcript of this video. (The transcript omits features which would identify the interviewee, as the resolution and breadth of such identification will be byproducts of the Commission’s ruling.) The partial video contradicts the representation in paragraph 10 that there is “no recorded interview,” and raises questions about the representation in paragraph 12 that the video is “basically worthless.”

18. At no point, in other correspondence or otherwise, did FCSO answer the question of whether a complete, faithful, non-defective copy of the subject record had been requested from SPD and was being sent to me. (Email printouts.)

19. In a telephone conversation on July 9, 2008, SPD Captain Tom Wuennemann told me that my request for the subject record was being denied on the grounds that voluntary statements were exempt.

20. The Stamford Advocate reported that SPD Captain Wuennemann stated, “Part of the problem is it’s hard enough to get people to come in and talk to the police. If they have to come in and worry it’s going to get broadcast on TV, it makes our job that much more difficult.” (Stamford Advocate article, August 6, 2008.)

21. The interviewee of the subject record is the son of a City of Stamford employee. (This fact is redacted from my transcript of the partial video. If it is not stipulated, I will introduce supporting evidence.)

22. World Wrestling Entertainment, Inc. (“WWE”) is headquartered in Stamford. (Complainant’s testimony.)

23. In our initial conversation, SPD Captain Conklin acknowledged to me that the fact in paragraph 22 heightened public interest in the subject record. In response to my question, Captain Conklin also said that some Stamford PD officers sometimes worked private off-duty security jobs for WWE. (Complainant’s testimony.)

[24. Information about Stamford PD’s history of disposition of requests for public access to videotaped interrogations.]