March 6, 2019

The Division of Criminal Justice respectfully recommends the Committee’s JOINT FAVORABLE REPORT for S.B. No. 970, An Act Concerning the Confidentiality of Evidence Seized in a Criminal Investigation. This legislation, which is among the Division’s 2019 Legislative Recommendations to the General Assembly, seeks to correct a problem highlighted by the Connecticut Supreme Court’s decision in Commissioner of Emergency Services and Public Protection, et al. v. F.O.I. Commission, 330 Conn. 372.  In that case, the Supreme Court ruled that private materials seized during the course of a criminal investigation are public records that are subject to disclosure under the Freedom of Information laws.  S.B. No. 970 would create a narrow exemption for such materials and ensure that personal items do not lose their private character merely because they are seized by the police. 

In order to investigate criminal activity, police may obtain a warrant to search and seize property upon a showing of probable cause.  Significantly, the search and seizure need not lead to the arrest of the person.  The police may conclude upon reviewing the evidence that the defendant did not commit the crime.  Even if the police arrest the person, however, that does not mean the defendant has been found guilty.  The defendant is presumed to be innocent of the crime unless and until he or she pleads guilty or is found guilty by a judge or jury. 

Under the law as written today, personal materials seized from an individual pursuant to a police investigation would be deemed to be public records and, therefore, would be subject to mandatory disclosure even if the person was exonerated by the police investigation or was found not guilty.  Similarly, evidence that was seized improperly and was ruled inadmissible would be available for public review.

The failure to exempt seized evidence from the mandatory disclosure provisions of the Freedom of Information Act could also have negative consequences for the victims of crime.  Under the law as currently written, if the police seize the diary and/or financial documents of the victim of a sexual assault/burglary at the suspect’s home and the suspect dies before prosecution, the victim’s personal property is public record by default.  Anyone is now entitled access to the victim’s private personal and financial matters. 

There is no limit to the amount of personal data that could be subject to the mandatory disclosure provisions of the Freedom of Information Law if this Bill is not enacted.  One need only consider the amount of information that is contained on a cell phone.  Given their sheer volume of storage capacity, mobile phones often contain more private information, relating to more people, than do private homes. Any and all of this information may have evidentiary value in a criminal case, but the vast majority of it does not and never will. This is the problem that this bill is designed to correct.

The Division is certainly aware that the Supreme Court’s decision involved a request for the personal journals and other personal property of Adam Lanza, who was responsible for the unspeakable and horrific event that occurred on December 14, 2012, at the Sandy Hook Elementary School.  Of course, if you judge this bill solely based on Adam Lanza, it is easy to dismiss it as silly. After all, Lanza was a completely unsympathetic killer of children and innocent adults. Who wouldn’t want a glimpse into his deeply troubled mind? Lanza also is dead and, therefore no longer possesses any real privacy interest. So is his mother, in whose house the material was located and seized.

It is unfair and unwise, however, to judge the proposal only in the context of the sensational and disturbing Lanza matter. Reasonable people will want to judge it in the context of the far more typical and usual case in which information that qualifies under the FOIA as a “public record” is seized by a search warrant.

It is also important to make clear that the proposal does not make the seized property confidential; it exempts it from mandatory public disclosure under the FOIA. Nothing in the proposal prevents law enforcement from making the information public, or from disclosing it to the public upon request if that is advisable.

In conclusion, it is one thing to strive for government transparency, it is another totally to completely ignore the property and privacy rights of the individual and to endorse what is essentially an unlimited government-sanctioned invasion of privacy. The Freedom of Information Act was adopted to provide public access to public documents and records created by public agencies, not to allow for an unlimited look at the private property and records of a private individual. Our law has long rightfully placed strict limits and restrictions on the ability of the government to seize property as evidence for the purposes of a criminal investigation. What we are talking about is private property seized from private individuals. Yet any semblance of privacy would effectively be wiped away if Commissioner v. Freedom of Information Commission is allowed to stand.

The search for answers to Sandy Hook should not lead to an open-ended invitation for the news media or anyone else to view the contents of the diary, cell phone or other personal belongings of an innocent victim of a crime simply because they wish to. Accordingly, the Division respectfully recommends the Committee’s JOINT FAVORABLE REPORT for S.B. No. 970. We thank the Committee for affording this opportunity to provide input on this matter and would be happy to provide any additional information the Committee might require or to answer any questions that you might have.