Published November 26. 2013 6:00PM Updated November 27. 2013 12:10AM
Superior Court Judge Eliot D. Prescott ruled Tuesday that audio recordings of 911 calls from the Sandy Hook Elementary School shooting must be released by Dec. 4 unless the state obtains a stay from a higher court.
Prescott issued a 31-page decision denying a motion for a stay by Danbury State's Attorney Stephen J. Sedensky III, who had appealed the state Freedom of Information Commission's ruling that the 911 tapes should be turned over to The Associated Press.
The AP has been attempting to obtain the recordings since Dec. 14, 2012, when 20-year-old Adam Lanza shot his way into the Newtown school and killed 20 children and six adults. The AP's initial requests to the Newtown Police Department were ignored, and the state's attorney intervened after the news organization filed a Freedom of Information complaint.
Sedensky issued a statement through the Division of Criminal Justice communications office saying he is reviewing the judge's decision and will determine what action he will take.
Prescott wrote that he reluctantly listened to the recordings and analyzed all of the arguments against releasing them. He decided all of the state's attorney's claims, including one that the recordings were exempt from disclosure because the Sandy Hook schoolchildren were victims of child abuse, were without merit.
"Although the callers describe, in a harrowing and disturbing manner, an emergent criminal event that is taking place in a school location where there are obviously many children, the callers do not describe any particular acts of child abuse," said the decision. "No children are identified by name in the recordings and no caller indicated he or she could see whether any child has been injured. The only injury described is that of a teacher who has been shot in the foot."
Prescott wrote that Sedensky's claim that the recordings are protected by a law exempting from disclosure the signed statements of witnesses "borders on the frivolous." He rejected the claim that the tapes were exempt from disclosure because of a prospective law enforcement action, noting Sedensky failed to identify anyone who could be subject to criminal prosecution. Also, he noted, the state Freedom of Information Act does not require that a criminal investigation be closed before disclosure is required.
The judge also rejected the state's attorney's argument that the relevance and prejudicial effect of the tapes may not be known until later in the investigation.
"Indeed, this argument, which at its heart is an assertion that the records are exempt because 'I say so,' would eliminate the well-established rule that the burden to prove the applicability of an exemption rests on the agency asserting it," Prescott wrote in the decision.
He also wrote that it would not be in the public interest for him to grant a stay, since further court proceedings could take years.
"As a news organization, the AP will continue to be hamstrung on its ability to inform the public regarding one of the most significant, albeit tragic, events in Connecticut history," Prescott wrote. "Given the weakness of the plaintiff's claims on the merits, such a decision is difficult to justify."
The judge wrote that releasing the recordings will assist the public in gauging the appropriateness of law enforcement's response and to consider and weigh what improvements may be made.
"The public has weighty interest in addressing these questions now, not possibly two or three years from now when this case may have finally concluded," wrote Prescott. "Delaying the release of the audio recordings, particularly where the legal justification to keep them confidential is lacking, only serves to fuel speculation about and undermine confidence in our law enforcement officials."
Mitchell W. Pearlman, executive director emeritus of the state Freedom of Information Commission and a member of the Connecticut Council on Freedom of Information, said it is highly unusual for a judge to deny a stay of an administrative decision, since it takes away the opportunity for the person who is appealing to have his day in court.
"The fact that it's one of those highly unusual cases strongly suggests that there is no merit and the person isn't entitled to a day in court," Pearlman said.
The argument that it was a case of child abuse, as described specifically by the state law, borders on the ridiculous, Pearlman said, as did claims that there might be further law enforcement action.
On Monday, Sedensky released a report that said Sandy Hook shooter Adam Lanza, who committed suicide after killing his mother, 20 students and six school staff members, had acted alone, and there would be no criminal prosecutions.
"We understand the sympathy toward the people of Newtown, but to have a public official let that overwhelm the requirements of the law and the facts in the case to arrive at a decision brings his judgment into question in all points of criminal prosecutions," Pearlman said.