Sandy Hook Sympathy and Secrecy

The frivolous arguments for suppressing the 911 calls placed during the Newtown massacre.

This Saturday marks the first anniversary of the massacre at Sandy Hook Elementary School in Newtown, Connecticut. Yet recordings of the 911 calls placed from the school that day were released only last week, thanks to a misguided and lawless attempt to conceal this information.

While investigating Adam Lanza's horrifying attack, State's Attorney Stephen Sedensky became so concerned about the feelings of the victims' families that he lost sight of his legal obligations. Sedensky used disingenuous arguments to keep the 911 recordings under wraps, in blatant violation of Connecticut's Freedom of Information Act (FOIA), which creates a presumption in favor of making public records public.

There are important reasons for that presumption, starting with the premise that government accountability requires transparency. As Superior Court Judge Eliot Prescott observed in his November 26 ruling against Sedensky, "release of the audio recordings will assist the public in gauging the appropriateness of law enforcement's response."

The recordings also can help the public judge the propriety of legislative responses to the massacre, such as limits on the size of ammunition magazines. The sound of gunshots in the background of the calls is one piece of evidence concerning the pace at which Lanza fired his rifle, which illuminates the question of whether the seconds needed to switch magazines could have made an important difference in the deadliness of his assault.

Sedensky never made a credible case that the Sandy Hook calls qualified for a recognized FOIA exception. Prescott said one of his arguments—that the calls should be treated like "signed statements from witnesses" taken as part of a criminal investigation—"borders on the frivolous."

Prescott was similarly unimpressed by Sedensky's claim that the recordings would reveal the identities of previously unnamed witnesses, endangering them or subjecting them to "threat or intimidation." The judge concluded that "the plaintiff has not come close to meeting his burden to demonstrate that such circumstances exist in this case."

Having listened to the calls, Prescott noted that "only one individual is mentioned by name, and there is nothing to suggest his or her identity as a witness is currently unknown to the public." Furthermore, the only evidence Sedensky cited that such exposure might result in threat or intimidation was a reference to a man who lived across the street from Sandy Hook and sheltered children who fled the school. Sedensky said the man was "bothered by what is going on in the media, in terms of people writing things about him."

Sedensky also argued that releasing the 911 recordings would jeopardize "prospective law enforcement action," although Lanza was dead and there was no prospect that anyone would be prosecuted in connection with the massacre. Prescott rejected Sedensky's interpretation of "prospective law enforcement action," noting that he "has cited no legal authority for his broad characterization of the phrase."

Even if a prosecution were possible, the judge observed, Sedensky never explained why letting the public hear the 911 calls would compromise it. That would have been hard, since "he had not even listened to the recordings himself."

Even more of a stretch was Sedensky's argument that the 911 calls constituted records of child abuse that by law had to be kept confidential. Prescott noted that the calls do not include any descriptions of violence against children, making Sedensky's claim "attenuated at best."

In any case, the confidentiality requirement for child abuse records does not apply to violence committed by strangers. If it did, Prescott noted, police would be required to keep secret all records related to violent crimes with victims who are under 18, including gang shootings and home invasions.

Sedensky's arguments were flimsy covers for his actual motive, which was to shield the families of Lanza's victims from further pain. While that impulse is understandable, it does not carve out a FOIA exception. If it did, police could suppress information about crimes at will, sacrificing transparency and freedom of the press on an altar of sympathy.