Conflict Charged In Record-Destruction Case

Hamden has hired a Milford law firm to investigate why cops destroyed public records while a Freedom of Information Act (FOIA) request was pending.

Hamden has hired that same law firm to defend the town against an FOIA complaint based on that same request.

Does that sound kosher?

Not to Daniel Dunn, the Hamden police commissioner who filed the FOIA request. He and an attorney representing him at an upcoming hearing on his appeal, Joseph Sastre, called the double hire a conflict of interest — between an investigation that’s supposed to examine the accountability of all parties involved in the matter and the town’s defending itself against allegations of wrongdoing in the same case.

Mayor Lauren Garrett and her administration said they see no problem with using the same law firm to tackle both assignments.

In fact, the administration doesn’t even say it has ​“hired” the firm, Berchem Moses, for the two separate cases. Rather, they are claiming to have an open-ended arrangement with the firm through a third party, and could not produce a contract or hourly rate or precise scope of services for the legal work.

That’s the latest development in an ongoing controversy regarding a request Dunn made in February to read through nearly seven years’ worth of public records — including all civilian complaints and use of force reports filed between 2016 and 2022. On April 14, Dunn filed his first complaint with the Connecticut Freedom of Information Commission, reporting that the police department had not taken any action to fulfill his request.

Then, as the Independent first reported in May, it turned out that after Dunn had filed the request, then-Police Chief John Sullivan (who has since retired) and Mayor Lauren Garrett signed off on the destruction of 100 volumes of unsubstantiated internal affairs reports, which Garrett said may have overlapped with documents that Dunn had cited FOI law to review. 

Garrett said that at the time that she signed off on the request for records disposition, she was unaware that there was a pending FOI request for overlapping documents. She responded by placing a moratorium on all destruction of records and announced that the town would launch an investigation into the matter.

At the beginning of June, the Independent reported that the town had announced it was working with its insurance agent, the Connecticut Interlocal Risk Management Agency, to hire outside legal assistance to lead the investigation. The idea, according to Garrett, was to explore the police department’s intentions in destroying the records, identify gaps in policy and practice to prevent future incidents like the one that took place this year, and help regain ​“public confidence.” 

Garrett last week confirmed that CIRMA had referred the town to law firm Berchem Moses, which would perform a review of the records incident — as well as defend the town against Dunn’s complaint in a future FOI hearing. 

“What you have it seems,” Dunn said, ​“are the same people who are doing the ​“investigation” are now defending the town in the same matter.”

“It’s wild to me,” he said. 

The Independent asked the Garrett administration to provide a copy of the contract between the town and Berchem Moses.

“There is no contract,” mayoral Chief of Staff Sean Grace responded.

He stated that the law firm independently negotiated with CIRMA, and that the town will be charged in accordance with the chosen attorney’s agreed-upon hourly rate.

He was asked what that hourly rate is. He said the town does not know.

The hope, Grace asserted, is that the town’s insurance will cover the full cost of any work undertaken by Berchem Moses. He said the town will receive a bill at the conclusion of both investigations: ​“As we go through the process, we’ll determine whether there’s a deductible.”

The Independent left messages with both Berchem Moses and CIRMA on Friday to gain more information on the terms and conditions of the work in the two cases. Neither responded by the time of this article’s publication. 

Garrett said she does not see why it would be a conflict for the same law firm to represent the town in the FOI hearing while also navigating an investigation aimed at holding town employees, particularly police officers, accountable.

“They are related matters,” she said. 

“We reached out to CIRMA because they refer lawyers and we were concerned about the shredding,” Garrett said. She said she was under the impression that the firm’s obligation to defend the town in the FOI hearing related only to the timeliness of the town’s document distribution.

“Documents are being handed over regularly. It just takes time to make sure everything is being redacted properly,” she stated. ​“We will be complying with the FOIA as far as that complaint goes,” she argued.

“We basically just want to make sure that we have an outside investigator giving an objective report and showing the timeline of everything that took place,” Grace had said at the beginning of June, when the administration first shared they were working with CIRMA to find an attorney to help guide that process.

Last week, he said, ​“It’s the administration that wants to get to the bottom of it,” conceding that it may be more accurate to call the lawyer’s task an ​“internal” rather than ​“outside” investigation.

Grace added that while Dunn has still only received some of the documents from the town in response to his FOI request (including 28 civilian complaints and 114 use of force reports, the latter of which are dated only from 2016 and 2020), the administration has ​“made it clear to Dunn that he can come in [to Government Center] at any time and view the documents he requested. The only thing that takes more time is the redaction process.”

“He’s requested documents that go back years,” Grace noted.

Town Attorney Sue Gruen must eliminate any information that could expose sensitive information concerning ​“victims and children” before releasing documents, he said. 

“The operations of the town are not going to come to a halt” to get Dunn those reports, he said. ​“We’re going to go through them on a reasonable schedule.”

Dunn’s lawyer, Joseph Sastre, who is representing the commissioner in the FOI hearing pro bono, said the town’s work with Berchem Moses is not ​“an independent investigation by any stretch.” Dunn reached out to Sastre after reading this article by Connecticut Public about the lawyer’s own struggle with accessing public records while looking into the sudden departure of Avon’s police chief a few years back. 

“I would be surprised to ever see a town do a truly independent investigation, because any investigation that the town ever does is always going to be for the purpose of avoiding liability or minimizing risk, minimizing exposure,” he said. ​“I don’t see it as something that a town really could do no matter what — it’s just not their function. Any investigation the city launches is always going to be geared towards presenting their best defense.”

The upcoming FOIC hearing will ultimately revolve around whether the police department and town kept Dunn from accessing public documents. But Sastre said that all details of the case — including more recent developments beyond the police department’s delayed response in providing Dunn with public records, like the discovery that materials related to Dunn’s request had been approved for destruction — are ​“all on the table when someone goes to the FOI Commission.”

He gave one example of how that information could be used to locate the town’s fault in the matter: He is looking into an allegation that members of the police department were working overtime when the documents were shredded. The police department has consistently declined to comment on the matter of records destruction in its totality to the Independent. But Sastre said that if it is discovered that police officers put public records requested through FOI law through a paper shredder outside of standard work hours, it would suggest that the department was not simply ​“too busy” to get Dunn the documents, but that they were ​“too busy destroying the records out from under him.”

Dunn said his takeaway from the town’s agreement with Berchem and Moses is that ​“there’s no independent investigation happening, there’s no independent investigation planned.”

“The mayor needs to step up and do the right thing,” he said. ​“That means being as transparent as possible: Letting the public know exactly which records were destroyed, how many were destroyed, and letting us know when we can see the records — it’s been over 120 days since the request was made.”

“This is information that’s vitally important for the police commission to do its job concerning oversight and accountability,” he said. ​“This isn’t just for the commission — it’s for the public as well,” he said regarding the fact that the administration still has yet to forward him all of the requested records.

“It’s all incredibly troubling, and there seems to be no remedy in sight,” he said.