NEW BRITAIN — A superior court judge concluded Friday that he could not decide a dispute over the release of 911 recording from the Sandy Hook Elementary School shooting without first hearing the recordings.
“I don’t think I can give this application fair consideration without having listened to the tapes. It’s not something I want to do but I recognize it’s something that I think I have to do,” Judge Eliot Prescott said.
Prescott heard arguments Friday from Danbury State’s Attorney Stephen Sedensky III and lawyers for the Associated Press and the state’s Freedom of Information Commission. Sedensky is asking Prescott to block the release of the 911 recordings while he appeals a decision by the commission calling for their release.
After listening to both sides, the judge called for a temporary hold on the disclosure of the tapes pending his inspection of them in what is likely to be a closed-to-the-public setting.
Victor Perpetua, a lawyer for the FOI Commission, urged the judge to listen to the tapes before making a decision. He said the eight members of the commission listened to the recordings and decided they should be disclosed.
However, Perpetua urged Judge Prescott to act quickly and suggested that the time it has already taken to release the records has raised questions among members of the public.
“At a certain point people start to ask why? What is there to hide? I’m not saying there is anything to hide. I’m saying that the longer it’s delayed, the more questions are raised and the delays in providing access to this kind of record increase public insecurity,” he said.
The case dates back to Dec. 14, the day a gunman entered a Newtown Elementary School and murdered 20 children and six adults. On that day, the Associated Press requested the 911 recordings.
Sedensky, who is the lead investigator of the incident, has prevented the tapes from being disclosed. The AP eventually brought their complaint to the FOI Commission, which in September ordered their release. Sedensky has appealed the commission’s decision to the courts.
His argument against releasing the tapes hinges in part on his assertion that tapes represent evidence of child abuse and are therefore confidential under state law. Sedensky and William Fish, a lawyer for the Associated Press, argued over whether the term “child abuse” should be reserved for crimes committed by the caretaker of a child. The 20-year-old shooter in the Sandy Hook incident was not a caretaker of any of the children involved.
Sedensky also argued that releasing the tapes would cause irreparable harm to the people of Newtown and to those whose voices were recorded when they dialed 911 that day. He said conspiracy theorists may target the witnesses and harass them, an experience which some of the families of the victims have reported.
He said that once the tapes are released, the damage will have been done and people may be more reluctant to use 911.
“If those 911 tapes are disclosed, there is no taking that back. Those witnesses and victims of the crime who are on those calls now are subject to that threat or intimidation,” Sedensky said. “. . . it can never be undone.”
Perpetua said no one was seeking to cause anguish to the families or the witnesses involved. He said FOI commissioners were not seeking to do that when they ruled that the tapes should be released.
“Eight members of my commission and a hearing officer, with no stake in the outcome, heard those tapes and didn’t think that would happen,” he said. “. . . My commissioners are human beings, who, like everyone else in this room, are sensitive to the anguish of others.”
Prescott noted that there was no evidence that personal anguish was among the considerations the FOI Commission weighed in its decision. In the end, he decided that he should hear the recordings for himself.
“All I have right now is your representation in this courtroom about what is contained on those tapes,” he told Sedensky at one point. “Don’t I have to listen to them?”
Sedensky said he did not see it as an imperative but would not object to it either.
The judge set a hearing date for Nov. 25, during which he will decide whether the tapes will be available to the court but sealed from the public. He is likely to allow them to be sealed. At some point after that, Prescott will decide whether to grant Sedensky’s request to block their release pending his appeal.
Prescott denied a request by Sedensky to put off the Nov. 25 hearing for a week so that Sedensky could attend.
“I am giving you a stay up to that point. So I think we need to do this on an expedited basis,” he said.