(Journal Inquirer) Sen. Kissel presses for open government

September 30, 2013

Article as it appeared in the Journal Inquirer

HARTFORD — The state pardons board should meet in public, with limited exceptions made for the privacy of crime victims, Gov. Dannel P. Malloy said Friday.

Malloy’s comments came as the attorney general’s office considers challenging a Freedom of Information Commission decision that pardons board meetings be held in public.

And while the governor hasn’t taken a position on that appeal, saying he doesn’t know enough about the case, a state legislator is urging Attorney General George C. Jepsen not to challenge the FOI Commission’s ruling.

“I think it’s a balancing act, but more often than not, err on the side of transparency,” Malloy said when asked about his position on pardons board meetings.

Malloy, a Democrat, added that sometimes the board must protect victims from having to relive crimes or protect the identity of children who were victims of or witnesses to crime.

Those would be reasons for the board to consider a pardon in secret, he said.
“Causing a person to relive a crime that has been committed and has already been testified to, and then have to do that years later in a public setting, may be something that we want to protect people from,” Malloy said.

Two violations last year

The FOI Commission found that the Board of Pardons and Paroles twice violated state law last year by holding closed-door sessions to consider and vote on pardons. The finding stemmed from a complaint by the Journal Inquirer.
The Malloy administration proposed legislation this year that would have made pardon documents secret.

Steven R. Strom, the assistant state attorney general representing the board and board Chairwoman Erika Tindill — a Malloy appointee who serves at the governor’s pleasure — said after the commission’s decision that he would appeal to Superior Court.

A spokeswoman for the attorney general’s office said this week that Strom still is determining whether to challenge the ruling.

But Sen. John A Kissel, R-Enfield, on Thursday wrote a letter to Attorney General Jepsen urging his office not to appeal.

“In our pardons and paroles system, transparency discourages corruption and political favoritism,” Kissel wrote.

Kissel had not received a response as of Friday. As the top Republican on the legislature’s Judiciary Committee, Kissel helped strip the secrecy language from the Malloy administration’s bill.

The argument Malloy made Friday for victim privacy is substantially different than the one Tindill and the state made in pushing for secrecy before the Freedom of Information Commission.

It also differs from the stance the Malloy administration took in seeking legislation to make the pardons process more secretive.

The privacy of crime victims never came up in those discussions.

Until Malloy’s comments Friday, the state’s argument for pardons board secrecy focused on the “criminal erasure” law, which excludes from public view the court and police arrest records of people who have since received “absolute pardons.”

Convicts privacy cited

The Board of Pardons and Paroles contended that certain records, including a convict’s pardon application and supporting documents, should be secret because their disclosure would diminish the convict’s privacy if a pardon were granted.
The board further argued that because the documents should be private, so too should meetings involving the documents.

Otherwise, the board said, a record of the pardon would exist.

The Freedom of Information Commission rejected those arguments, saying records are erased only after a pardon is granted and that the erased records are court and police documents — not parole documents.

More than half of pardon applications are denied, according to the commission.
The Board of Pardons and Paroles also argued that a state law exempting some investigative reports that are reviewed in “conditional” pardons should apply to pardon applications and all other documents.

The commission rejected that as well, saying state law exempts only certain records.

Before the commission ruled, the board and Malloy proposed legislation that would have made pardon documents secret unless they were released by the pardons board, requested by the person seeking the pardon, or ordered released by a court.

Open-government advocates noted that the bill also would have enabled the Board of Pardons and Paroles to meet in secret — so anyone outside the board couldn’t review the pardons process.

At the very least this would mean that the board could discuss documents the public wouldn’t be able to see.

The legislation failed.

Yet at the FOI Commission hearing the pardons board argued that state law already makes such documents private.

In determining that the pardons board had violated state law, the FOI Commission also noted the board had failed to post meeting minutes and agendas on its Internet site.

The board has since started posting that information, but the commission has questioned if the agendas contain enough detail to let the public know what business will be taken up.

Malloy has been criticized for his constraints on independent watchdog agencies that protect the public’s right to know, clean elections, and ethics rules:

  • In 2011 and 2013 Malloy proposed cutting funding for the Freedom of Information, Ethics, and Elections Enforcement commissions and merging their legal staffs into a personnel pool at the Office of Governmental Accountability. The governor also wanted that office’s administrator — a gubernatorial appointee — to have the authority to hire and fire employees of those agencies.
  • Malloy proposed giving his budget office control over the budgets of the accountability agencies, which are now shielded from across-the-board cuts to cover mid-year shortfalls.
  • The governor privately negotiated the legislation that concealed crime scene photos and other information from the Newtown school shootings in December.
  • Malloy did nothing to ensure enforcement of FOI law when the town clerk in Newtown violated it by refusing to provide access to the death certificates of those killed in the shootings.
  • The governor’s office has refused to release the personnel files of state employees disciplined for defrauding the state’s food stamp program after the 2011 October snowstorm. The administration contends that disclosure would violate state and federal welfare laws. State law says disciplinary files of state employees generally are public information.