In 2004, when Gov. John G. Rowland was subpoenaed in a government corruption investigation by a federal grand jury, his office supplied the subpoenas, and its response to them, to the capital press corps without a fight.
In 2010, after hearings at the Freedom of Information Commission and a Superior Court Appeal, the Hartford Courant won the right to receive grand jury subpoenas in the corruption case of Hartford Mayor Eddie Perez.
But the office of Speaker of the House Christopher Donovan, to the surprise of white-collar defense lawyers and First Amendment attorneys, is taking a distinctly different approach. It is responding to requests to release subpoenas with legal riddles, in the name of supporting the effectiveness of a federal grand jury which has already led to the arrests of two former Donovan staff members.
While remaining House speaker, Donovan campaigned to become the Democratic candidate for the Fifth District congressional seat currently held by Christopher Murphy, who is running for U.S. Senate.
Although the Democratic Party’s nominee, Donovan was under a cloud from the federal campaign finance investigation, and lost to Elizabeth Esty in the primary election Aug. 14. Donovan has a position on the ballot as the candidate of the Working Families Party, and has been mum about whether he will withdraw from the race completely.
Before the primary, the Connecticut Law Tribune requested under the state Freedom of Information Act any federal grand jury subpoena, and associated records, received by the House Democrats. The existence of a subpoena, and its terms, could help establish who the federal investigation was pursuing, and whether it was more about campaign finance violations or corruption by elected officials. In recent years, federal corruption probes have led to jail terms for a governor, two big-city mayors, a state treasurer and a state senator and led to the state being nicknamed “Corrupticut.”
Initially, attorney Christy Scott, counsel for House Democrats, requested additional time to gather the documents, specifically noting that the request was not being denied. Subsequently, in an Aug. 21 response authorized by the House Democratic caucus, Scott neither confirmed nor denied the existence of federal grand jury subpoenas, or related documents. “To the extent that we may possess documents responsive to your request, such documents are not subject to disclosure pursuant to General Statutes section 1-210 (b)(10) and the Federal Rules of Criminal Procedure Rule 6.”
The state statute mentioned by Scott is the 10th exemption from the state FOI Act. It covers: “Records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship.”
Scott, in an interview to clarify, said no attorney-client relationship is claimed. Rather, an exemption is claimed on the ground that a federal grand jury subpoena, and related documents, would be reports exempted by federal law. Federal Rule 6, cited by Scott, covers grand juries, and prohibits federal grand jurors, federal prosecutors, court reporters and others directly involved in the grand jury investigation from releasing grand jury records.
But legal rights of those outside the grand jury process are disttincly different, experts say.
Criminal defense lawyer Jeremiah Donovan, an assistant U.S. attorney for 11 years, found the claim of an exemption unpersuasive. “I can say that the claim that somebody who receives a subpoena is not permitted to disclose it is just categorically wrong,” said Donovan, who is not related to the House speaker. “That grand jury secrecy only applies to the grand jurors, the prosecutors, and to various federal governmental personnel who come into contact with grand jury material — not witnesses.”
Scott said her office had decided to honor a request from the U.S. Attorney’s Office to keep mum about any grand jury subpoena, so as not to impede the grand jury’s quest.
“I think that if the U.S. Attorney’s Office tells us that doing something might interfere with a federal investigation, then it is our responsibility not to interfere with that federal investigation,” she said. Scott added that this is how “the Speaker sees it, and I certainly concur.”
Donovan has not been charged, arrested or formally targeted in the federal grand jury investigation. By the end of July, two Donovan campaign aides and six other alleged conspirators were arrested for involvement in an alleged scheme by Waterbury-area tobacco store owners to contribute $27,500 to Donovan’s congressional campaign in exchange for favorable tax treatment for roll-your-own cigarette enterprises. After the issue became a scandal in June, the legislature promptly approved a tax for these businesses.
William S. Fish Jr., of Hinckley, Allen & Snyder in Hartford, represented the Hartford Courant when it requested the state grand jury subpoenas of former Mayor Eddie Perez, who was involved in a government corruption investigation for taking improper contributions from contractors.
Initially, Hartford’s lawyer, John Rose, declined to release the subpoenas, but on appeal to Superior Court Judge Henry Cohn ordered the subpoenas released to the Courant under the FOIA. “The exemption of Sec. 1-210 (b) (10) does apply in this particular request for records before the grand jury, but not to subpoenas from the grand jury in possession of the city plaintiffs,” Cohn wrote.
There is little question that records in the possession of, or “before,” a state or federal grand jury are not within reach of either the state or federal Freedom of Information laws. But materials not before the grand jury are a completely different matter, according to First Amendment experts.
Fish explained: “If I’m a witness at a federal grand jury, I can come out and I can talk. It happens all the time.” In fact, he said, if a judge were to place a gag order on a witness barring comments outside the grand jury, there would be a pretty good argument that this is violative of the witness’s First Amendment right to free expression, Fish said.
Donovan agreed. He said the witness “could disclose the evidence, too. If a person goes down to the grand jury with a box of documents and presents them, [afterward] she could have a press conference and say what she said. The obligation of grand jury secrecy applies just to the jurors, the prosecutors, the interpreters and the court reporters — people who have to be within the grand jury — and some federal agents.”
As for Scott’s assertion that she wouldn not confirm or deny the existence of a subpoena at the behest of the U.S. Attorney’s Office, Fish said that sort of request is neither a federal law nor a court order, and can hardly be the basis for the FOI exemption claimed.
Mitchell Pearlman, former executive director of the state Freedom of Information Commission for its first 30 years, said the House Democrats’ approach has become standard operating procedure for government agencies seeking to thwart FOI appeals.
“This is a classic Glomar response,” Pearlman said, a term that arose from the top-secret Glomar Explorer salvage vessel launched by the Central Intelligence Agency in the 1970s to investigate sunken Soviet submarines. When freedom of information requests were made about it, the standard government response was to “neither admit or deny” the existence of the vessel, Pearlman said.
This “Glomar response” was viewed by the courts as an acceptable government defense in a Freedom of Information case, Pearlman said. If the existence of, or absence of, a document is never acknowledged, he said, a citizen wouldn’t have the subject matter with which to pursue an FOI case. “How could you ever have an appeal,” he said, “under this adversarial system we all hold dear?”
But, he said, things may be changing. After the Sept. 11 attacks, the federal government frequently used the stragegy in the name of national security and, said Pearlman, “courts are finally saying the ‘Glomar response’ has to have limits.”
Might they say that in Connecticut? Pearlman said the cryptic response of the House Democrats would not prevent an appeal to the state Freedom of Information Commission. “It’s a two-part response. The part where they say, ‘We won’t tell you one way or the other,’ is [a refusal to produce the records], which is the basis for an appeal. The [second] part where they outline the claimed exemption” from FOI laws would also be evaluated by the commission, and ruled upon as either a valid exemption or not.•