The state Supreme Court gave the public the opportunity for greater access to police records in a decision Tuesday that will make it more difficult for departments to keep their investigative files on long unsolved cold cases secret.
The ruling came in a public records suit brought by documentary filmmaker Madison Hamburg, who has been trying for more than a decade to obtain the police file on the death of his mother Barbara Hamburg, who was found murdered outside their home in Madison in 2010. The crime was the subject of Hamburg’s 2020 documentary series “Murder on Middle Beach.”
In a unanimous decision by Justice Raheem L. Mullins, a former prosecutor, the court said that in order to keep cold case records secret, the police must demonstrate that they have a reasonable chance of making an arrest.
The Madison Police Department had fought disclosure of its file on the long-dormant murder investigation by relying on language in state Freedom of Information law that exempted police departments from having to release records of ongoing investigations. The public dissemination of such records, police agencies have long argued, diminishes their chances of making an arrest.
The Supreme Court’s decision adopts a new standard for what constitutes an ongoing investigation or, as defined in state public records law, a “prospective law enforcement action.” To keep records secret under the new standard, police agencies must show that the likelihood of a law enforcement action such as an arrest or prosecution, “is at least reasonable, not a mere theoretical possibility.”
So far, the Madison police have been unable to make such a showing. The Freedom of Information Commission decided for Madison Hamburg and his film making partner Anike Niemeyer. The Madison police appealed to the Superior Court where they lost and where Judge Daniel Klau established the standard for reasonableness adopted by the Supreme Court.
“It’s a strong decision for transparency,” said attorney Valicia Harmon, who argued the case for the Freedom of Information Commission. “I think the standard is good. The longer the case is cold, the greater the burden on law enforcement.”
The Supreme Court’s decision sends the case back to the Freedom of Information Commission, which is instructed to revisit under the terms of the court’s new reasonability standard.
Law enforcement agencies, including the Madison police and the Connecticut Police Chiefs Association, declined to discuss the decision.
Prosecutors in the state Division of Criminal Justice, which operates a unit dedicated to solving cold cases, had tried to persuade the justices in a friend of the court brief that it should have adopted a standard for reasonableness less inclined toward disclosure.
The division argued that a reasonable possibility standard should be satisfied whenever a law enforcement investigation “is open, a suspect has been identified, and no insurmountable obstacles exist to a future prosecution.”
In support of its proposed standard, the division pointed to cold cases in which police made arrests many years after the crime, when new witnesses or suspects appeared and made statements that included details that only the killer or killers could have known. Had the files been made public and the details become widely known, the division said prosecutions would have been ‘‘grievously, if not fatally, prejudiced.”
Critics of decisions to keep long unsolved case records secret complain that, in the past, police agencies abused the ongoing investigation exemption in state public records law in order to conceal evidence that cases were unsolved because of shoddy police work.
Barbara Hamburg was found murdered outside her family’s Middle Beach Road home on March 3, 2010. The police said they had a suspect, based on DNA found under her fingernails that matched “the male Hamburg lineage,” according to the decision.
Detectives acknowledged that they were searching for a Hamburg relative for questioning. They later disclosed that the relative submitted DNA for testing and that a match to the crime scene evidence was not strong enough to justify an arrest, according to the decision.
The court said the Madison police have not made press statements, publicly named or cleared suspects, or otherwise updated the public on the case since March, 2010.
Hamburg and Niemeyer began work on a documentary series about the crime in 2013 and the series was eventually picked up by HBO and released in 2020 as a four-part series called “Murder on Middle Beach.”
Over the years of filmmaking, Hamburg met repeatedly with police officials, but obtained a relatively small portion of the case records and he said those proved to be incomplete. When the filmmakers complained about the records denial to the Freedom of Information Commission in 2020, a Madison police detective acknowledged to the commission that the investigation had been effectively stalled for nearly a decade.
