author: Arthur H. Healey, J. Shea, J., Callahan, J.,

text:
    State of Connecticut v. James R. Mebane
    (13037)
    Healey, Shea, Callahan, F. Hennessy and Spada, Js.

      Argued April 9
    decision released August 4, 1987

      William R. Schipul, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a trial to the jury, the defendant, James Mebane, was found guilty of the crime of the sale of heroin in violation of General Statutes § 19-480 (a). The defendant then appealed his conviction to the Appellate Court. The Appellate Court affirmed the judgment of conviction. State v. Mebane, 8 Conn. App. 63, 511 A.2d 359 (1986). Thereafter, this court granted the defendant’s petition for certification.

The question presented in the defendant’s petition is as follows: “Did the Appellate Court err in failing to find reversible error in the trial court’s granting of [the] state’s motion to sequester the defendant from his attorney . . . .” The defendant claims that the Appellate Court erred in two respects: (1) failing to find that the trial court’s order mandated a per se reversal; and (2) holding that the state sustained its burden of showing that the trial court’s error was harmless beyond a reasonable doubt. We reverse the Appellate Court and remand to that court with direction.

The following background circumstances are not in dispute. After the state had rested its case-in-chief on September 5,1984, the defendant took the stand to testify. On the first day of his testimony, during cross-examination by the state, the trial court stated that it was going to take a recess. At that time, the state asked the court for a sequestration order as to the defendant. The state requested that the defendant “not talk to his counsel since [the state was] in the middle of cross-examination.” Although defense counsel “strongly” objected, the court granted the state’s request. Defense counsel took an exception to the ruling.

After a recess of approximately twenty-one minutes, the court reconvened and the state resumed its cross-examination of the defendant. After the defendant had been questioned, without any further recess, on redirect, recross, additional redirect and recross, the court adjourned for the day. The next morning, the defendant was recalled and testified on additional redirect, recross and then additional redirect and recross.

The defendant argues that the trial court’s sequestration order violated his rights under the United States constitution and the Connecticut constitution which guarantee him a fair trial, due process and the effective assistance of counsel. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; State v. Mebane, supra, 65. The defendant maintains that a sequestration order such as that given in this case, no matter for how short a time, mandates reversal per se. He argues that the harmless error rule is not applicable in this context because the United States Supreme Court has recognized that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” citing Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). Alternatively, he attacks the Appellate Court’s application of the harmless error doctrine. The defendant argues that if the harmless error doctrine is applicable, the Appellate Court erred in concluding that the state had sustained its burden of proving that the trial court’s error was harmless beyond a reasonable doubt.

The state, on the other hand, argues that the Appellate Court did not err in rejecting a rule of per se reversal. It asserts that the right to effective assistance of counsel is not one of the constitutional protections the denial of which requires automatic reversal. Even conceding that the trial court’s ruling was error, as the state did before both this court and the Appellate Court, it nevertheless maintains that the Appellate Court correctly applied harmless error analysis in concluding that the state had proven the error harmless beyond a reasonable doubt. State v. Mebane, supra, 65, 70. We disagree and reverse the judgment of the Appellate Court.

“The Sixth Amendment provides that an accused shall enjoy the right ‘to have the Assistance of Counsel for his defense.’ This right, fundamental to our system of justice, is meant to assure fairness in the adversary criminal process. Gideon v. Wainwright, 372 U.S. 335, 344 [88 S. Ct. 792, 9 L. Ed. 2d 799] (1963); Glasser v. United States, 315 U.S. 60, 69-70, 75-76 [62 S. Ct. 454, 86 L. Ed. 680] (1942); Johnson v. Zerbst, 304 U.S. 458, 462-63 [58 S. Ct. 1019, 82 L. Ed. 1461] (1938).” (Emphasis added.) United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 66 L. Ed. 2d 564, reh. denied, 450 U.S. 960, 101 S. Ct. 1420, 67 L. Ed. 2d 385 (1981). The United States Supreme Court “[has] . . . been responsive to proved claims that governmental conduct has rendered counsel’s assistance to the defendant ineffective. Moore v. Illinois, 434 U.S. 220 [98 S. Ct. 458, 54 L. Ed. 2d 424] (1977); Geders v. United States, 425 U.S. 80 [96 S. Ct. 1330, 47 L. Ed. 2d 592] (1976); Herring v. New York, 422 U.S. 853 [95 S. Ct. 2550, 45 L. Ed. 2d 593] (1975); Gilbert v. California, 388 U.S. 263 [87 S. Ct. 1951, 18 L. Ed. 2d 1178] (1967); United States v. Wade, 388 U.S. 218 [87 S. Ct. 1926, 18 L. Ed. 2d 1149] (1967); Massiah v. United States, 377 U.S. 201 [84 S. Ct. 1199, 12 L. Ed. 2d 246] (1964).” United States v. Morrison, supra; see Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

There is no question that the trial court’s order entered on the state’s motion was erroneous and that this error was of constitutional magnitude. The issue, therefore, is whether a per se reversal of the defendant’s conviction is required or whether the harmless error analysis is to be applied.

In pressing their claims, both parties, as did the Appellate Court, place great emphasis on Geders v. United States, supra. In Geders, the United States Supreme Court held that a trial court order preventing Geders, a defendant in a federal prosecution, from consulting with his counsel “ ‘about anything’ ” during a seventeen hour overnight recess between his direct and cross-examination “impinged” upon his right to the assistance of counsel guaranteed by the sixth amendment. Id., 91. While acknowledging the broad powers of a trial judge over the control and shaping of the trial, Geders held that that power did not include the authority to prohibit consultation between a criminal defendant and his attorney for so long a period of time. The per se holding in Geders was reached without requiring the defendant to make any preliminary showing of prejudice. The Geders court, however, expressly limited its holding, stating: “United States v. Leighton, 386 F.2d 822 ([2d Cir.] 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case.” Id., 89 n.2. Accordingly, the United States Supreme Court did not decide the question of whether a court order denying the right of consultation between a criminal defendant and his attorney “during a brief routine recess” constitutes a violation of the defendant’s sixth amendment rights.

Although, as the court suggested in Geders, some courts had already spoken to the question the Geders court left open; see, e.g., United States v. Leighton, supra; it was not long after the Geders decision that courts were then called upon to decide that open question. The federal circuit courts that have addressed the issue have reached differing results. In Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11th Cir. 1986) (Crutchfield II), reh. denied, 810 F.2d 208 (1987), the court summarized the different holdings stating: “The majority of the circuits that have announced rules for reviewing denial of assistance of counsel claims favor the per se rule. United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S. Ct. 1179, 51 L. Ed. 2d 584 (1977) (per se rule applied prospectively); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (in absence of extraordinary circumstances, it is abuse of discretion and violation of right of defendant to assistance of counsel for a trial court to direct that defendant have no communication with his counsel during criminal trial over a noon recess). Only one circuit applies a harmless error analysis to a prohibition of consultation during trial between a criminal defendant and his counsel. United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1427, 71 L. Ed. 2d 648 (1982). The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), [cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310, reh. denied, 455 U.S. 995, 102 S. Ct. 1624, 71 L. Ed. 2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983).” Allen involved a routine recess. Bryant concerned a blanket restriction during the luncheon recess. DiLapi was a five minute recess and said that a showing of specific prejudice was necessary. In Bailey, the Third Circuit determined that the deprivation of assistance of counsel did not take place because the defendant did not object to the restriction on communication imposed by the trial court’s order, but if the defendant had objected, prejudice need not be established. In Stubbs, a luncheon recess case, specific prejudice was required to be shown. The Fifth Circuit has also addressed this issue holding that even a brief restriction on a criminal defendant’s right to confer with counsel constitutes a violation of the sixth amendment and that if such a restriction occurs, reversal is required per se. United States v. Conway, 632 F.2d 641 (5th Cir. 1980); see also United States v. Vesaas, 586 F.2d 101, 102 n.2 (8th Cir. 1978) (“we have grave doubts that even a brief restriction on a criminal defendant’s right to confer with counsel can be squared with the Sixth Amendment”).

Some state courts have formulated per se reversal rules since Geders. See, e.g., Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (ban on consultation about testimony during luncheon recess); Stripling v. State, 349 So. 2d 187 (Fla. App. 1977) (blanket restriction imposed during luncheon recess); People v. Hagen, 86 App. Div. 2d 617, 446 N.Y.S.2d 91 (1982); Commonwealth v. Barber, 250 Pa. Super. 427, 429, 378 A.2d 1011 (1977), citing Commonwealth v. Logan, 456 Pa. 508, 325 A.2d 313 (1974); Mastracchio v. Houle, 416 A.2d 116 (R.I. 1980). Other state courts, however, in addressing recesses shorter than Geders have required a showing of specific prejudice. See, e.g., Bova v. State, 410 So. 2d 1343 (Fla. 1982) (ten minute recess); People v. Seider, 98 Ill. App. 3d 175, 423 N.E.2d 1217 (1981) (short recess to which defendant did not object); State v. Perry, 278 S.C. 490, 299 S.E.2d 324, cert. denied, 461 U.S. 908, 103 S. Ct. 1881, 76 L. Ed. 2d 811 (1983) (fifteen minute recess).

The Appellate Court rejected a rule of per se reversal, stating instead that it would employ a harmless error analysis. In doing so, it stated that “[w]e hold that the test set forth in Crutchfield v. Wainwright, [772 F.2d 839, 843, vacated, 779 F.2d 1466 (11th Cir. 1985) (Crutchfield I)], and Chapman v. California, supra, is the appropriate one and that the burden [of demonstrating harmless error beyond a reasonable doubt] should rest on the state.” State v. Mebane, supra, 69. Drawing on Chapman and Crutchfield I, the Appellate Court said that “[t]he rule of per se reversal is viable ‘only if the likelihood of prejudice is so great that a case-by-case inquiry would not be worth its cost. We simply do not believe that this is so in the case of routine recesses during the course of a day at trial. If the recess were very brief, for example, a matter of minutes, then prejudice to the defendant would seem highly unlikely. As the length of the recess increases, of course, so does the probability of prejudice. Nonetheless, denial of access during any recess of the type likely to arise in the course of a day at trial does not seem sufficiently likely to justify a rule of per se reversal.’ [Crutchfield I, supra].” State v. Mebane, supra, 67. Having determined to follow Crutchfield I, supra, which adopted the Chapman harmless error analysis, the Appellate Court found that the state had sustained its burden of proving harmless error beyond a reasonable doubt. State v. Mebane, supra, 69-70. We do not agree with the Appellate Court. We believe that a per se rule of automatic reversal more properly vindicates the denial of the defendant’s fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment.

In Chapman v. California, supra, 23, the United States Supreme Court acknowledged that a federal harmless error rule should apply to some errors of constitutional magnitude while others can never be treated as harmless error. One such “substantial” right referred to in Chapman was the right to counsel. Id., 23 n.8, citing Gideon v. Wainwright, supra; see generally note, “Harmless Constitutional Error,” 83 Harv. L. Rev. 814 (1970); note, “Harmless Constitutional Error,” 30 U. Pitt. L. Rev. 553 (1968-69). Only last year, the United States Supreme Court, in the Chapman context, after noting that it “[had] stressed on more than one occasion, [that] the Constitution entitles a criminal defendant to a fair trial, not a perfect one,” stated: “At the same time, we have observed that some constitutional errors— such as denying a defendant the assistance of counsel at trial . . . are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case. Chapman [v. California, supra,] (citing Gideon v. Wainwright, [supra] . . .).” Delaware v. Van Arsdall, 475 U.S. 673, 681, 681-82, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); see Mudd v. United States, 798 F.2d 1509, 1513-14 (D.C. Cir. 1986).

The Chapman harmless error analysis, we submit, is not workable in cases of the complete denial of the assistance of counsel. First, to require a showing of prejudice “burdens” one of the most fundamental rights of a criminal accused, that is, the defendant’s right to have “the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed. 2d 158 (1932). While Powell was decided over fifty years ago, its vigor persists, particularly when the right to assistance of counsel is denied “at a critical stage of the proceedings,” as in this case. To require the defendant to show prejudice would, of course, implicate and most likely intrude into the attorney-client relationship—a consequence hardly commendable. See Bailey v. Redman, supra, 24. Moreover, the state has the burden of proving harmless error and yet the defendant and his attorney are the only ones realistically in possession of the relevant circumstances, i.e., what they would have discussed had they not been ordered otherwise. See Crutchfield II, 1114-15 n.12 (Tjoflat, J., concurring). In any event, short of the real danger of trenching upon the attorney-client privilege, another reason for rejecting a rule that the defendant must show prejudice is that the impact of prejudice. from being deprived of the assistance of counsel cannot be adequately assessed from the bare record itself in contrast to “the normal case where a harmless-error rule is applied, the error occurs at trial and its scope is [more] readily identifiable.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

It is apparent that the only way a defendant could show prejudice would be to disclose by evidence what he and his counsel would have discussed, what they were prevented from discussing and how the improper court order allegedly interfered with his defense. It is no answer, as the state argues, that all the defendant or his counsel has to do when the trial court enters such an order is to state that they want to consult with each other and, therefore, the potential intrusion of the attorney-client privilege never emerges. This hardly seems a viable solution where the state, as here, affirmatively seeks the order proscribing this fundamental right. In this case, defense counsel “strongly object[ed]” to the order. Given the defendant’s right to communicate with counsel, counsel’s objection and exception, fairly viewed, must only mean that the defendant and counsel desired to communicate. This objection and exception alerted the court and the state in that regard. Significantly, the state raised no claims of concern over “coaching” the defendant or other potential impropriety involving counsel at any time. Even if it had, Geders properly describes methods of meeting such problems without ordering an absolute denial of communication. See Geders v. United States, supra, 89-91; see also Crutchfield II, supra, 1114-15 (Tjoflat, J., concurring). Moreover, no citation is needed to demonstrate that recesses, long or short, offer the opportunity for a defendant and his counsel to discuss many things including “advice on demeanor or speaking style.” Mudd v. United States, supra, 1512.

It is evident that a per se rule not only better serves justice but that it is also more consistent with Geders than harmless error analysis. While the Geders majority did not specifically address the issue of whether Geders had been prejudiced by the trial court’s nonconsultation order, it must have necessarily rejected the holding of the Fifth Circuit Court of Appeals in United States v. Fink, 502 F.2d 1 (5th Cir. 1974). In Fink from which Geders had appealed, the Fifth Circuit held that the reversal of Geders’ conviction was not proper unless there was a showing of “actual harm.” Id., 9. We agree with the Mudd court in that regard when it says of Geders: “Given that the question was squarely presented, it is unreasonable to assume that the [United States] Supreme Court sub silentio subjected the violation [of the right to counsel] to a harmless error test. See Geders [v. United States, supra, 92] . . . .’’Mudd v. United States, supra, 1513; see also Jackson v. United States, supra, 1204. In 1984, the court in United States v. Cronic, 466 U.S. 648, 659 n.25, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), cited Geders, inter alia, for the statement that it had “uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. ” (Emphasis added.) Additional support for this is found in Justice Marshall’s concurring opinion in Geders, joined by Justice Brennan, where he states: “[A] defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice. Such an order is inherently suspect, and requires initial justification by the government.” Geders v. United States, supra, 92-93 (Marshall, J., concurring).

Our reading of the cases urged upon us by the state do not require a different legal result. The state refers to Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), stating in its brief that “the right to effective assistance of counsel is not one of the constitutional protections that requires automatic reversal” and quotes a sentence from that decision which states: “Not every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” Id., 11. Slappy is inapposite here for several reasons. In Slappy, the issue was whether the defendant’s sixth amendment right to counsel was violated by the state trial court “by denying [Morris’] motion for a continuance until the Deputy Public Defender initially assigned to defend him was available [after hospitalization for surgery].” Id., 4. That issue is certainly not the issue here. In Slappy, the Chief Justice in writing for five members of that court did not refer to Powell, Geders or Chapman apparently because that case simply did not involve, even arguably, the issue before us. Moreover, as we have already noted, the strong objection and exception to the trial court’s order in this case was adequate to indicate that counsel and this defendant wanted to communicate during the recess as is normally done. Our disposition does not require a showing of prejudice where such a blanket order is made and objected and excepted to. It is interesting to point out that Slappy also states: “Of course, inconvenience and embarassment to witnesses cannot justify failing to enforce constitutional rights of an accused; when a prejudicial error is made that clearly impairs a defendant’s constitutional rights, the burden of a new trial must be borne by the prosecution, the courts, and the witnesses; the Constitution permits nothing less.” Id., 14.

The state, in oral argument, also referred to Delaware v. Van Arsdall, supra, and United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983), as indicating that “most [but not all] constitutional violations are amenable to harmless error” analysis. It is true that in Delaware v. Van Arsdall, supra, 681, the United States Supreme Court stated that “[t]he harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . .” Van Arsdall, however, in the next sentence points out that “[a]t the same time, we have observed that some constitutional errors—such as denying a defendant the assistance of counsel at trial . . . are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case.” Id., 681, citing Chapman v. California, supra, 23 n.8; see Mudd v. United States, supra, 1513-14. To any argument that Van Arsdall stands for the proposition that a harmless error test is required before reversing a conviction for a sixth amendment violation, it suffices to say that not only did Van Arsdall involve a violation of the confrontation clause and not the right to counsel clause of the sixth amendment, but also that nothing in that case suggests that a sixth amendment infringement shall be subject to a similar inquiry.

In addition, neither Leighton nor DiLapi, both decided by the Second Circuit Court of Appeals, requires a contrary result. First, the Second Circuit’s view is the minority view. Crutchfield II, supra, 1109. Leighton, which was decided pre-Geders, involved an absolute prohibition of consultation during a luncheon recess. The Leighton court disapproved that prohibition, not only calling it “plainly uncalled for” but also stating that “we are unable to understand why it was sought or made . . . .” United States v. Leighton, supra, 823. The court in Leighton declined to order a new trial in the absence of any “actual harm to the right to effective assistance of counsel.” Id. In United States v. DiLapi, supra, 148, which involved a five minute recess, the court, acknowledging that other circuits had “applied Geders to reverse convictions, without inquiring as to actual harm, when communication between defendant and counsel was barred during brief recesses in the middle of the trial day,” nevertheless declined to do likewise. While recognizing that there is “some force to the contention that reversal should always occur because attempts to demonstrate how helpful a consultation would have been may themselves risk some impairment of the right to effective assistance of counsel by intruding upon protected confidences,” the DiLapi court, citing the Geders limitation to an overnight recess and its earlier disapproval in Leighton, stated that it was “reluctant . . . in the present state of the law [to say] that the erroneous instruction requires an automatic reversal in this case.” Id. DiLapi, however, opined that it “need not determine whether a similar instruction would require reversal in cases arising hereafter without regard to actual prejudice.” Id., 149. Significantly, the court closed its discussion of this issue by stating: “It is sufficient to state that the instruction should not be given again.” Id. Whether this admonition foreshadows a potentially different view by the Second Circuit Court of Appeals is, of course, speculative. In any event, we believe that the approach that we adopt today represents the better view.

Finally, we are aware that frequently all of the witnesses, both for the state and defense, are the subject of a sequestration order. A criminally accused, however, is not simply a witness but also the defendant. Obviously, a sequestration order affects a defendant in a completely different way than it does a nonparty witness who presumably has no stake in the outcome of the trial. Geders v. United States, supra, 88. The sixth amendment right to counsel is “obviously in effect [during a recess], and [the defendant] may consult with his counsel during any recess so long as the orderly conduct of the trial is not impaired.” United States v. DiLapi, supra, 148; see Jackson v. United States, supra, 1205. “Lawyers in criminal cases ‘are necessities, not luxuries’ ”; United States v. Cronic, supra, 653, quoting Gideon v. Wainwright, supra, 344; and the circumstance in this case that the deprivation of the defendant’s right to counsel was briefer than in Geders does not attenuate the constitutional significance of that right.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to set aside the judgment and to order a new trial.

In this opinion F. Hennessy and Spada, Js., concurred.

Shea, J.,

concurring. I agree with the rescript reversing the judgment of the Appellate Court and ordering a new trial, but I disagree with the view of the majority that “a per se rule of automatic reversal more properly vindicates the denial of the defendant’s fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment.” Because the decision of the United States Supreme Court in Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), leaves unresolved the issue of whether automatic reversal is required where a court prohibits communication between attorney and client during a trial recess of brief duration, I would follow the opinion of the United States Court of Appeals for the Second Circuit in United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981), cert. denied, 455 U.S. 938, 102 S. Ct. 1427, 71 L. Ed. 2d 648 (1982), which rejected the per se reversal rule and applied a harmless error analysis where the communication ban was in effect only for a recess of five minutes. Such an analysis requires, however, that the state demonstrate that the error in barring attorney-client communication was harmless beyond a reasonable doubt. I disagree with the conclusion of the Appellate Court in applying such an analysis that the state has sustained its burden under this standard, which is applicable to errors of constitutional dimension.

It is a difficult proposition to maintain that a criminal conviction must be reversed because of a trial court error that, beyond a reasonable doubt, has resulted in no prejudice to a defendant and thus is harmless. One possible purpose of such an automatic reversal rule, however, maybe to advance values beyond those involved in the case under consideration in a manner not adequately accomplished by mere appellate recognition of an error. See Vasquez v. Hillery, 474 U.S. 254, 262, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); Rose v. Mitchell, 443 U.S. 545, 578, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979) (Stewart, J., concurring). The United States Supreme Court, however, has never articulated such a basis for its declaration that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . .” Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). Presumably, therefore, those infringements of a defendant’s constitutional rights in a criminal case where harmless error analysis is deemed inappropriate involve situations where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor. Such cases are rare exceptions to “the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

Although the denial of the assistance of counsel at a trial has been placed within the narrow category of constitutional violations requiring automatic reversal, it does not necessarily follow that every erroneous interference with attorney-client communication, however brief or inconsequential, is inevitably harmful. The unexpressed concern of courts that have indulged this nonsequitur rather than engage in a harmfulness evaluation is that there often is nothing in the record from which a reviewing court can determine the effect of an erroneous ban on communication. Consequently, it is assumed that resort to speculation in such cases is likely in estimating the prejudicial impact of the error. The requirement under harmless error analysis that the state demonstrate harmlessness beyond a reasonable doubt, however, should dispel such a fear. Where the appellate record contains nothing to support a conclusion that the communication ban is harmless beyond a reasonable doubt, under that doctrine a reversal is required.

For a similar reason the concern expressed in the majority opinion that a harmless error analysis may somehow trespass upon the attorney-client privilege is unwarranted. The state has the burden of providing a record from which harmlessness can be found, while the defendant and his counsel may remain silent, except for making a bare objection, which the majority opinion incongruously requires to preserve this constitutional error claim. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Even if something more were required to protest a communication embargo, it would not be necessary for defense counsel to reveal his purpose in wishing to confer with his client. Furthermore, the attorney-client privilege protects communications that have taken place and is not at all applicable to those that have not occurred because they were forbidden.

It is not difficult to envision situations in which the record may demonstrate harmlessness in accordance with the constitutional standard. For example, if the prohibition against communication with a defendant has been limited to a brief recess occurring during cross-examination and the additional cross-examination following the recess has been clearly insignificant, there would ordinarily be a sufficient basis to find the standard to have been satisfied. Indeed, those courts that restrict automatic reversal to cases in which defense counsel have raised objection to a communication ban, as does the majority opinion, appear to engage in a limited harmless error analysis, reasoning that the absence of an objection indicates that counsel had no desire to discuss anything with his client. Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983); Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310, reh. denied, 455 U.S. 995, 102 S. Ct. 1624, 71 L. Ed. 2d 857 (1982). The emphasis placed by the court’s opinion in Geders itself upon the fact that the communications ban had continued for a period of seventeen hours, including an overnight recess, and must, therefore, have interfered with the normal discussion between attorney and client of the progress of the case also indicates that harmfulness was a factor in determining whether a deprivation of the right to counsel had occurred. Because I am reluctant to expand the category of constitutional errors for which automatic reversal is mandated, and authoritative precedent remains indecisive upon the subject, I choose not to join in the majority opinion.

I agree with the result, nevertheless, because the state has not proved that the “sequestration” order of the trial court was harmless beyond a reasonable doubt. In my judgment, the Appellate Court erred in its application of that standard to the circumstances of this case. Although the Appellate Court construed the trial court’s order as effective during only the twenty-one minute recess following its issuance, the order may well have been viewed by the defendant or his counsel as precluding all discussion between them until completion of his testimony. No limitation was placed on the duration of the order and it followed immediately the issuance of a sequestration order for all defense witnesses, presumably effective throughout the remainder of the trial. The court in granting the motion relating to the defendant specifically ordered that “the witness is to be sequestered,” although the state had requested only that the defendant be ordered “not to talk to his counsel since [the state’s attorney was] in the middle of cross-examination.”

The cross-examination following the recess consisted of a single question to which the court sustained an objection, although the defendant’s negative answer was never stricken. If the testimony of the defendant had then terminated, I would agree with the Appellate Court that the record sufficiently supported a conclusion that the prohibition of communication between the defendant and his client had not resulted in any harm. There was, however, additional questioning on redirect concerning the circumstances of the defendant’s arrest, intended to cast doubt upon the identification of the defendant by the police. An extensive recross-examination followed in which the state’s attorney attempted to impeach the defendant’s version of the arrest as well as his credibility. During this examination the court remarked to defense counsel upon the defendant’s habit of answering a question after his counsel had objected thereto, “[s]o whatever comes out, that’s his problem.” At counsel’s response that he had not had the opportunity to talk to the defendant during the recess when he “could have reminded him at that time,” the court conceded the accuracy of that observation.

The recross-examination was followed by additional redirect examination and then by further recross-examination and another brief redirect examination before court adjourned for the day. On the following day the defendant was recalled for redirect examination and was again cross-examined.

Even if the communication ban had clearly been in effect only during the twenty-one minute recess, as the Appellate Court assumed, a highly significant portion of the defendant’s testimony followed the recess. This testimony might well have been affected by the absence of any opportunity for the guidance of counsel during the recess. The court’s remark about the defendant’s propensity to answer questions before his counsel’s objection had been ruled upon, which had been evident before the recess, indicates that proper coaching during the recess would have helped the defendant’s later testimony. When a defendant testifies at his trial, his credibility is critical and the value of suggestions of counsel during a recess after he has observed his client testify cannot be minimized. There is nothing in the record that I can perceive to support the conclusion of the Appellate Court that the state has sustained its burden of proving the error harmless beyond a reasonable doubt.

Accordingly, I concur in the result.

Callahan, J.,

dissenting. I agree with the majority that the interference with the defendant’s right to counsel was error. I also agree with Justice Shea’s concurring opinion that every such error does not require reversal. In some instances the infringement on the sixth amendment is so minimal as to be harmless beyond a reasonable doubt. This is one of those instances. I would affirm the opinion of the Appellate Court.

         General Statutes (Rev. to 1981) § 19-480 (a) (now General Statutes § 21a-277) provides: “penalty for illegal manufacture, distribution, sale, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.”

       The defendant also claims that the Appellate Court erred in holding that the sequestration order applied only to a single twenty-one minute recess. The defendant argues that because the trial court did not place a time limit on the order, its effect was to prevent the defendant from consulting with his attorney about any aspect of the trial or defense strategy overnight. Because we hold that under the United States constitution it was error for the trial court to sequester the defendant from his attorney for even the twenty-one minute recess, we need not resolve this issue.

       At that time, the following took place:
      “The Court: Exception. We’ll take a short recess.
      “Mr. Satti: Your Honor, prior to going out, can I get a sequestration order, which I had not asked for prior to this witness. I’d like to ask for a sequestration order.
      “The Court: If there are any witnesses going to testify for the defense, then that order is effective immediately. The request is granted.
      “Mr. Satti: Can I request he not talk to his counsel since I’m in the middle of cross-examination?
      “The Court: You want to sequester this witness?
      “Mr. Schipul: Your Honor, I would strongly object to that request inasmuch as Mr. Satti has always had the opportunity to talk to his witness at any tíme.

        “The Court: The issue was never raised by you, Mr. Schipul. It’s been raised by Mr. Satti.
      “I’ll grant that request, and the witness is to be sequestered.
      “Mr. Schipul: I’ll take an exception.
      “The Court: Exception. The Court is in recess.
      (Whereupon Court recessed at 3:22 p.m. and reconvened at 3:43 p.m.)”

       The transcript indicates that the defendant’s examination on September 6, 1984, began at 10 a.m. and finished at 11:24 a.m.

       Because of our holding today, we need not address the claims made by the defendant under article first, § 8, of the Connecticut constitution.

       We have said that “whether a claimed right is ‘fundamental’ lies in assessing whether that ‘right’ is explicitly or implicitly guaranteed by the constitution. [San Antonio School District v. Rodriguez, 411 U.S. 1, 34, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973)].” Frazier v. Manson, 176 Conn. 638, 646, 410 A.2d 475 (1979).

       In Geders v. United States, 425 U.S. 80, 92, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), Justice Marshall wrote a separate concurring opinion in which Justice Brennan joined. In that opinion, Justice Marshall stated: “The Court notes that this case does not involve an order barring communication between defendant and counsel during a ‘brief routine recess during the trial day.’ Ante, at 89 n.2. That is, of course, true. I would add, however, that I do not understand the Court’s observation as suggesting that as a general rule no constitutional infirmity would inhere in an order barring communication between a defendant and his attorney during a ‘brief routine recess.’ In my view, the general principles adopted by the Court today are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.” (Emphasis in original.)

       The judgment of the Appellate Court in State v. Mebane, 8 Conn. App. 63, 511 A.2d 359 (1986), was announced on July 1, 1986. Crutchfield v. Wainwright was originally decided by the Eleventh Circuit Court of Appeals on October 3, 1985, and is reported in 772 F.2d 839. At that time, the case was remanded to the District Court for the purpose of determining whether the denial of access by the defendant to his attorney resulted in prejudice. On December 19, 1985, the Eleventh Circuit Court of Appeals vacated its opinion in 772 F.2d 839, and ordered that the case be reheard by it en banc. Crutchfield v. Wainwright, 779 F.2d 1466 (11th Cir. 1985). Thereafter, on November 10, 1986, the Eleventh Circuit Court of Appeals handed down its decision en banc which is reported in 803 F.2d 1103.
      The en banc court of twelve was divided. One judge, writing the plurality opinion for himself and five others, said that any deprivation of assistance of counsel constituted reversible error and a new trial was required per se. Nevertheless, these six judges found no deprivation of the defendant’s right because the record did not show any objection to the court’s order or reflect a desire on behalf of the defendant to consult with his attorney. Id., 1109. Another judge, writing for himself and four other judges, eschewed orders denying access to counsel but felt that the analysis, unlike that of the plurality, should consider four relevant factors. These are: (1) the length of the recess; (2) the degree of restriction placed on the attorney-client communication; (3) the point in the proceedings at which the recess involved is taken; and (4) whether the defendant or his counsel objected and, if so, what was said. Id., 1115. These judges found no deprivation of the defendant’s right. Another judge also concurred and filed a separate opinion. Id., 1118.
      In this appeal, both counsel were familiar with the en banc opinion in Crutchfield and argued it before us, both parties contending for differing interpretations of that opinion.

       In deciding to follow the approach in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), and Crutchfield v. Wainwright, 772 F.2d 839, vacated, 779 F.2d 1466 (11th Cir. 1985), and imposing the burden upon the state, the Appellate Court stated: “This is consistent with the weight of authority which has placed upon the prosecution the burden of proving harmless error in cases where the error is of constitutional dimension. ‘The United States Supreme Court has recognized that certain constitutional protections are so central to the requirement of a fair trial that their violation absolutely requires that the conviction from which they arose be set aside. Chapman v. California, [supra, 23], In some circumstances, however, violations of other, less basic constitutional rights may be considered harmless and therefore do not compel reversal. Id., 23-24. “If error touches a less basic constitutional right, we sometimes apply the ‘harmless error’ exception, but only sparingly, in a few, discrete circumstances. State v. Zeko, 177 Conn. 545, 558, 418 A.2d 917 (1979). In such circumstances we require the state to prove the error harmless beyond a reasonable doubt.” ’ State v. Cohane, 193 Conn. 474, 484-85, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); see State v. Burrows, 5 Conn. App. 556, 560, 500 A.2d 970 (1985).” State v. Mebane, 8 Conn. App. 63, 69-70, 511 A.2d 359 (1986).

       We note that courts, interpreting Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976), have expressly recognized the necessity of making a timely objection to an order denying consultation between a defendant and his counsel. See, e.g., Crutchfield v. Wainwright, 803 F.2d 1103, 1109-10 (11th Cir. 1986); Bailey v. State, 422 A.2d 956 (Del. 1980) (showing of prejudice required because defendant had not timely objected to restriction on communication during overnight recess); People v. Narayan, 54 N.Y.2d 106, 429 N.E.2d 123, 444 N.Y.S.2d 604 (1981) (defendant did not object to proscription on communication until morning after the order whereupon the trial court sua sponte reversed itself; thus, “any alleged interference with [the] right to consult was minimal”). Some of these courts treat the failure to object timely as a waiver by the defendant. See, e.g., Stubbs v. Bordenkircher, 689 F.2d 1205, 1207 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S. Ct. 1879, 76 L. Ed. 2d 810 (1983); Bailey v. Redman, 657 F.2d 21, 24 (3d Cir. 1981), cert. denied, 454 U.S. 1153, 102 S. Ct. 1024, 71 L. Ed. 2d 310, reh. denied, 455 U.S. 995, 102 S. Ct. 1624, 71 L. Ed. 2d 857 (1982); United States v. Allen, 542 F.2d 630, 634 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S. Ct. 1179, 51 L. Ed. 2d 584 (1977). In Bailey, the defense did not object or question the trial court’s instruction that the defendant not discuss his testimony with anyone before trial resumed on the following day. In that case, the Third Circuit Court of Appeals, in affirming the defendant’s conviction, found that he had not been “deprived” of his right to counsel which was a predicate to relief. Explicating that “a defendant need not disclose confidential information in order to prove that he [had] been ‘deprived’ of an opportunity to meet with counsel” but “[t]o show a ‘deprivation’ of his sixth amendment rights, a defendant must merely demonstrate that he wanted to meet with counsel, but was prevented from doing so by the court’s instruction.” Bailey v. Redman, supra, 24. Drawing on Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), Bailey pointed out that the “distinction between the ‘deprivation’ of a right and the ‘prejudice’ that may result therefrom is not a new one. ... A showing that [a person] has been ‘deprived’ of his right to effective counsel is a predicate to relief; a showing of ‘prejudice’ is not.” Bailey v. Redman, supra. In this case, the defendant timely objected and excepted to the trial court’s order. We, therefore, need not decide whether the failure to object would require a different result.

       The state argues that State v. Truppi, 182 Conn. 449, 438 A.2d 712, cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981), in which we refused to apply harmless error analysis to a burden shifting Sandstrom-type charge is distinguishable from this case. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2540, 61 L. Ed. 2d 39 (1979). The state argues that that is so because “the effective assistance of counsel is not one of the constitutional rights whose denial will require per se reversal,” citing Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983), for that statement. As we have already discussed, Slappy is inapposite to the sixth amendment claim involved in this case.

       Later in the 1986 term, the United States Supreme Court reiterated the same purpose of the harmless error doctrine as well as its inapplicability to “some constitutional errors.” Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).


source: Caselaw Access Project

author:
Santaniello, J.
      Shea, J.,

license: Public Domain

text:
    Commissioner, Department of Public Safety v. Freedom of Information Commission et al.
    (12927)
    Peters, C. J., Shea, Santaniello, Dupont and Curran, Js.
    Argued February 4
    decision released August 4, 1987

      Peter E. Wiese, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Stephen J. O’Neill, assistant attorney general, for the appellant (plaintiff).

      Ralph G. Elliot, with whom, on the brief, was WilliamS. Fish, for the appellees (defendants the Hartford Courant et al.).

      Constance L. Chambers, assistant general counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).
   Santaniello, J.

The dispositive issue in this appeal is the extent to which the public or interested parties have access to exhibits and evidence received by the statewide organized crime investigative task force (SOCITF). The plaintiff has appealed from a judgment of the trial court sustaining the order of the defendant, freedom of information commission (FOIC), directing the plaintiff, the commissioner of the department of public safety (DPS), to provide access to certain state police records maintained by SOCITF and requested by the defendants, the Hartford Courant, and its employees, Roger Moore and Lynne Garnett.

The plaintiff claims that the trial court erred in: (1) concluding from the testimony before the FOIC that the materials sought were not subject to a present investigation or prospective law enforcement action when no such finding was made by the commission; (2) concluding that the materials, which the FOIC had ordered disclosed, were not exempt from disclosure pursuant to the provisions of General Statutes §§ 1-19 (a), and 29-166 through 29-172 inclusive; and (3) affirming the decision and order of the FOIC and dismissing the appeal. We find error and remand the case with direction to sustain the appeal.

The factual basis for this appeal is as follows. On January 31,1985, the defendants, the Hartford Courant, Moore and Garnett, made a written request of the plaintiff pursuant to the Freedom of Information Act (FOIA) seeking “[a]ll State Police reports, records and memoranda on any investigations conducted by your department into the conduct of Waterbury Assistant State’s Attorney Arthur M. McDonald.” The plaintiff did not respond within the time allowed by General Statutes § l-21i (a), and thus is deemed to have denied the request. Thereafter, on February 5,1985, the Hartford Courant, Moore and Garnett filed a complaint with the named defendant regarding their request, which was docketed as No. FIC 85-22. A hearing was conducted by FOIC commissioner Robert J. Leeney and on February 8, 1985, Leeney issued a proposed order that required the plaintiff to disclose the public records requested, identified as state police file No. 84-00250-0. On February 13, 1985, the FOIC adopted this proposed order and made it final. No appeal has been taken from this order.

On February 20,1985, the Hartford Courant, Moore and Garnett filed a second complaint and appeal with the FOIC, pursuant to General Statutes § l-21i (b), requesting the FOIC to reexamine the original complaint in No. FIC 85-22, alleging that certain public records had not been disclosed by the plaintiff in compliance with the original order although those records were within the parameters of that order. In this subsequent complaint, docketed as No. FIC 85-32, the defendants requested copies of or access to “state police documents on [Arthur] McDonald—including but not limited to 1979 files from the Statewide Organized Crime Investigative Task Force. ...” The plaintiff and its appointee, the director of SOCITF, opposed this action. A hearing was conducted by FOIC commissioner Judith A. Lahey on February 26, 1985, and a final decision was rendered on March 20, 1985. The FOIC found that the records which were sought “consisted of 9 or 10 pages in the files of the Statewide Organized Crime Investigative Task Force (SOCITF). The records consisted] of data gathered or received in 1979, 1982 and 1985. The records contained] specific allegations about McDonald placing bets, receiving gifts of food and liquor, and fixing criminal cases in return for cash, and items of value.” The FOIC finding further stated that “under §§ 29-170 and 29-171 [of the General Statutes], the director of SOCITF may only withhold records the release of which would compromise SOCITF’s ability to effectively gather confidential information” and “it is concluded that records not governed by the provisions of §§ 29-170 and 29-171 [of the General Statutes] are subject to the disclosure provisions of § 1-19 [of the General Statutes].” Accordingly, the FOIC ordered the plaintiff to provide the Hartford Courant, Moore and Garnett with access to inspect or copy the requested records. The FOIC also directed that the plaintiff could “mask or otherwise withhold specific information that would identify confidential informants” in order to protect SOCITF’s ability to gather confidential information.

The plaintiff then appealed to the Superior Court, pursuant to General Statutes § l-21i (d) and § 4-183, claiming that the FOIC erred in ordering the disclosure of the records that are the subject of the February 20, 1985 complaint. The plaintiff claimed that such an order infringed upon SOCITF’s authority to determine the information which may be released pursuant to § 29-170. The plaintiff further argued that the FOIC’s conclusion that the director of SOCITF could withhold only records which would compromise SOCITF’s ability effectively to gather confidential information contravened General Statutes §§ 1-19 (a), 29-170 and 29-171.

In addressing the plaintiff’s claims, the trial court attempted to balance the policy considerations underlying the FOIA. The court first recognized that the FOIA reflects a legislative policy favoring the disclosure of public records, and that any exception to the general rule of disclosure must be narrowly construed. The court also noted that the burden of proving the applicability of an exemption rests upon the agency claiming it. The trial court next determined that General Statutes § 29-171 creates an exception to the disclosure policy of the FOIA, but reasoned that the statute limits disclosure only while SOCITF is “ ‘conducting or participating in any investigation under [chapter 536 of the General Statutes].’ ” Reasoning that the FOIC could have found that SOCITF was not at that time conducting an investigation, the court concluded that the evidence supported the FOIC’s decision and that the FOIC did not act illegally, arbitrarily or in abuse of its discretion. Therefore, the court dismissed the plaintiff’s action.

The plaintiff appealed to the Appellate Court, claiming, inter alia, that the trial court erred in concluding the records that the FOIC ordered disclosed were not exempt from disclosure pursuant to General Statutes §§ 1-19 (a), and 29-166 through 29-172. The appeal was transferred to this court pursuant to Practice Book § 4023.

The resolution of the plaintiff’s claim requires the reconciliation of two statutes, each dealing with the disclosure of information. General Statutes § 1-19 (a) states that “[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records . . . .” Section 29-170, by contrast, sets forth that “[i]n order to keep the public informed as to the operations of organized crime and the problems encountered by the state in dealing with organized crime, the state-wide organized crime investigative task force may disseminate such information by such means and to such extent as it deems necessary.”

The plaintiff contends that § 29-170 gives SOCITF the authority to disseminate information as it deems necessary to keep the public informed, and as such, the statute comes within the “[e]xcept as otherwise provided” exception to § 1-19 (a). Therefore, the plaintiff argues that any records maintained by SOCITF fall outside the disclosure requirements of the FOIA.

The defendants, on the other hand, argue that § 29-170 does not exclude records possessed by SOCITF from the disclosure requirements of § 1-19 (a). They argue that § 29-170 is not a “non-disclosure” statute limiting the dissemination of information as SOCITF sees fit, but rather an “empowering” statute, authorizing and encouraging SOCITF to disclose information beyond that which must be disclosed under § 1-19 (a).

The disposition of this case thus turns on whether the legislature, in enacting General Statutes § 29-170, intended to exclude information gathered by SOCITF from the disclosure requirements of § 1-19 (a), or merely intended to encourage SOCITF to disclose additional information beyond that required by the FOIA. See Galvin v. Freedom of Information Commission, 201 Conn. 448, 456, 518 A.2d 64 (1986). In resolving this issue, we are guided by the well established rule that requires us to ascertain and give effect to the apparent intent of the legislature. See, e.g., State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A. 2d 124 (1986); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 45.05. When the language of a statute is plain and unambiguous, we need look no further for interpretive guidance because it is assumed that the language itself reflects the legislative intent. Rhodes v. Hartford, supra; Johnson v. Manson 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). “It has often been said that the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say.” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980); see also Hayes v. Smith, 194 Conn. 52, 57-58, 480 A.2d 425 (1984); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231, 477 A.2d 988 (1984). “Where statutory language is clearly expressed . . . courts must apply the legislative enactment according to the plain terms and ‘cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.’ Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977), quoting State v. Malm, 143 Conn. 462, 467, 123 A.2d 276 (1956).” Johnson v. Manson, supra, 315; see also State v. Whiteman, 204 Conn. 98,103, 526 A.2d 869 (1987), quoting Mozzochi v. Glastonbury, 188 Conn. 276, 279, 449 A.2d 173 (1982). A statute does not become ambiguous solely because the parties disagree as to its meaning. Harris Data Communications, Inc. v. Heffeman, 183 Conn. 194, 198, 438 A.2d 1178 (1981); Weingarten v. Allstate Ins. Co., 169 Conn. 502, 508, 363 A.2d 1055 (1975).

In the present case, we conclude that the language of § 29-170 clearly indicates that the legislature intended to limit the disclosure of information gathered by SOCITF. Section 29-170 clearly provides that “the state-wide organized crime investigative task force may disseminate such information by such means and to such extent as it deems appropriate.” (Emphasis added.) The language plainly reflects a policy of conditional rather than unfettered disclosure. Accord Galvin v. Freedom of Information Commission, supra, 459.

Moreover, it is presumed that the legislature, in enacting a statute, acts with the knowledge of existing relative statutes and with the intention of creating one consistent body of law. Caulkins v. Petrillo, 200 Conn. 713, 718, 513 A.2d 43 (1986); Milford v. Local 1566, 200 Conn. 91, 100, 510 A.2d 177 (1986); State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984). Therefore, we assume that the General Assembly, in enacting § 29-170, was mindful of the provision of § 1-19 (a) which states that “[e]xcept as otherwise provided by . . . state statute, all records . . . shall be public records and every person shall have the right to inspect such records . . . .” (Emphasis added.) By giving SOCITF authority to disseminate information as it deemed appropriate, the legislature “otherwise provided by state statute” an exception to the disclosure requirements of § 1-19 (a).

Additionally, we note that SOCITF is a specially organized agency whose function is to gather information and conduct investigations into a number of diversified areas. See General Statutes §§ 29-167, 29-169. Information may be gathered from confidential sources, and may include hearsay and unsubstantiated assertions. The legislature might reasonably have considered this information to be sufficiently sensitive to warrant the imposition of disclosure restrictions not applicable to the records of other public agencies. Accord Galvin v. Freedom of Information Commission, supra, 461. We therefore hold that information possessed by SOCITF is not accessible to the general public pursuant to the FOIA. Accordingly, the trial court erred in dismissing the plaintiffs appeal, and upholding the FOIC’s decision that the requested records were “subject to the disclosure provisions of § 1-19 G.S.”

Our conclusion that SOCITF does not fall within § 1-19 disposes of the administrative appeal, since records which are not governed by the FOIA do not fall within the jurisdiction of the FOIC. The defendants have, however, raised important issues of policy regarding the proper construction of § 29-170. They ask us to determine whether the discretion that § 29-170 confers upon SOCITF is absolute or limited. The plaintiff apparently contends that it has absolute and unbridled authority to withhold or disseminate information as it sees fit. We do not read § 29-170 so broadly.

Section 29-170 states that information is to be disseminated “[i]n order to keep the public informed as to the operations of organized crime and the problems encountered by the state in dealing with organized crime . . . .” Additionally, in discussing Public Acts 1973, No. 73-592, the bill creating SOCITF, Representative Samuel S. Freedman stated: “Finally sir, and this is most important. It is provided that where ever possible the people ... of the state be given information relative to the status of organized crime in the state.” 16 H.R. Proc., Pt. 14,1973 Sess., pp. 7252-53. Implicit in § 29;170, then, is that SOCITF may not capriciously or arbitrarily withhold information. This understanding, however, does not clarify under what circumstances SOCITF may withhold disclosure of such information.

To help us determine the appropriate standard of discretion conferred upon SOCITF, we find our recent case of In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 501 A.2d 377 (1985), to be cogent. In that case, we addressed the standard of discretion conferred by General Statutes (Rev. to 1985) § 54-47 (g) upon the trial court to release an investigative grand jury transcript and report. Section 54-47 (g) provided in part that after an investigatory grand jury inquiry, a report and transcript be filed with the court, and that “the court shall direct whether, and to what extent, the report [and transcript] shall be made available to the public or interested parties.”

In determining the extent of discretion conferred upon the court in directing “whether, and to what extent,” the report and transcript should be made available, we first noted that there were no explicit statutory guidelines resolving the issue. Id., 706. We then examined the history of the grand jury system to help ascertain “the appropriate measure of the discretionary process that the statute envisages.” Id., 707. In examining the system’s history, we recognized the importance of secrecy in the proper exercise of an investigatory grand jury’s duties. Id. We reasoned that “[safeguarding the confidentiality of grand jury proceedings serves a number of functions. ‘First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.’ Douglas Oil Co. v. Petrol Stops Northwest, [441 U.S. 211, 219, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979)].” In re Final Grand Jury Report Concerning the Torrington Police Deptartment, supra, 709-10.

We concluded that the “particularized need” standard, first developed by the federal courts in response to the recognized need for secrecy in the indicting grand jury system, was an appropriate measure of the discretionary authority conferred upon the court by § 54-47 (g). Id., 709, 712. We stated that such a standard requires balancing the competing interests of disclosure and secrecy by examining all the facts of a particular case, including the possible effect upon the functioning of future grand juries. Id., 711-12; see also United States v. Sells Engineering, Inc., 463 U.S. 418, 442-43, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983); Douglas Oil Co., v. Petrol Stops Northwest, supra, 218-22. Accordingly, we held that parties seeking disclosure of investigatory grand jury transcripts or records must bear the burden of articulating and substantiating a basis for the information. In re Final Grand Jury Report Concerning the Torrington Police Deptartment, supra, 712-13.

We conclude that both SOCITF’s function and the means for performing its duties are analogous to the investigatory grand jury so as to warrant the adoption of the “particularized need” standard as the appropriate measure of discretion conferred upon SOCITF by General Statutes § 29-170. “The function of the investigatory grand jury is to conduct an inquiry into criminal activity and to report its findings to the court. State v. Moynahan, 164 Conn. 560, 564-65, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).” In re Final Grand Jury Report Concerning the Torrington Police Deptartment, supra, 707; see also In re Investigation of the Grand Juror, 188 Conn. 601, 605, 452 A.2d 935 (1982). Similarly, SOCITF has the duty and power to conduct “investigations in connection with: (1) The faithful execution and effective enforcement of the laws of the state, with particular reference to those laws controlling organized crime and racketeering; (2) the conduct of public officers and public employees, and of officers and employees of public corporations and authorities; and (3) any matter concerning the public peace, public safety and public justice.” General Statutes § 29-167. When, during the course of an investigation, it appears that there is cause for the prosecution of a crime, or for the removal of a public officer for misconduct, the director of SOCITF must refer the evidence to the chief state’s attorney. General Statutes § 29-169.

The need for secrecy, moreover, is no less important to SOCITF than it is to the investigative grand jury. Information for a SOCITF investigation is gathered from numerous sources, including confidential informants, other investigations, both closed and ongoing, and unsolicited tips. As in the case of investigative grand jury inquiries, if SOCITF files and records were made public, prospective witnesses and informants would be hesitant to come forward and volunteer information. As Sergeant Bruce Haines, former acting director of SOCITF, stated: “Well, SOCITF has never had to release any intelligence files. The first ones that were released were those subpoenaed on the . . . those were the first ones that were ever made public. Since then, informant information I feel has dried up to some extent. I think it definitely interferes with the collection of data in criminal cases because informants now feel what they once thought sacred and would never be brought to the surface are now worried that their names are going to . . . appear in headlines the next day . . . .” Although an informant’s name might be deleted to protect an informant, there might still be information that could only be attributable to one source thereby placing that informant in jeopardy regardless of the protective measures taken.

Furthermore, because the information gathered sometimes rests upon unfounded allegations and casual statements, the secrecy of the investigation assures that persons who are accused but eventually exonerated will not be held up to public ridicule. An “important reason for prohibiting access to police and investigative reports arises from recognition of the rights of privacy of individuals mentioned or accused of wrongdoing in unverified or unverifiable hearsay statements of others included in such reports.” News & Observer Publishing Co. v. North Carolina, 312 N.C. 276, 283, 322 S.E.2d 133 (1984); In re Investigation by Attorney General, 30 N.C. App. 585, 588-89, 227 S.E.2d 645 (1976); cf. Houston Chronicle Publishing Co. v. Houston, 531 S.W.2d 177, 188 (Tex. Civ. App. 1975).

Additionally, because information is interwoven and may pertain to several files or ongoing investigations, the fact that one investigation has been completed does not vitiate the need for secrecy. As we stated in In re Final Grand Jury Report Concerning the Torrington Police Deptartment, supra, 711, “[c]oncern for possible adverse consequences in the future has meant that ‘the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.’ [Douglas Oil Co. v. Petrol Stops Northwest, supra, 222]; Dennis v. United States, [384 U.S. 855, 870, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966)]; United States v. Moten, 582 F.2d 654, 663 (2d Cir. 1978); 1 LaFave & Israel, [Criminal Procedure (1984)] § 8.5 (g).”

The legislature, by creating SOCITF, created an agency that must rely on extremely sensitive and highly confidential information to perform its function properly. There is an ongoing need to protect sources and information. Therefore, parties seeking SOCITF materials must make a showing of a particularized need for disclosure, and the courts must examine all the facts of a particular case in balancing the interests for disclosure against the need for continued secrecy. In considering the effects of disclosure of SOCITF materials, the courts must consider not only the immediate effects upon the release of particular materials, but also the possible effect upon future investigations. Once an investigation has been completed, concern for future adverse consequences on the operation of SOCITF may be diminished, but not, as a matter of law, eliminated.

Accordingly, we conclude that there must be a balancing procedure whereby the party seeking disclosure must prove a particularized need that outweighs the need for secrecy.

There is error, the judgment is set aside and the matter is remanded with direction to sustain the appeal.

In this opinion Peters, C. J., Dupont and Curran, Js., concurred.

Shea, J.,

concurring. I agree with the dispositive portion of the majority opinion holding that “information possessed by SOCITF is not accessible to the general public pursuant to the Freedom of Information Act” and directing the trial court to sustain the appeal of the commissioner of the department of public safety. I see no reason, however, to go beyond the determination of those issues necessary to the disposition of the appeal, as the majority opinion does in discussing the “particularized need” standard for disclosure of information that the legislature has declared to be unavailable unless released by SOCITF.

This court does not ordinarily render advisory opinions. Pellegrino v. O’Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984); Reply of the Judges, 33 Conn. 586 (1867). This appeal is a singularly inappropriate occasion for deviating from that salutary policy, because none of the parties before the court has raised or could raise a claim of “particularized need.” The defendant newspaper and its reporters assert no special need or right to receive the information sought that elevates their request to SOCITF above that of any member of the general public. No provision of the Freedom of Information Act gives the news media access to information that may be kept from the general public. Furthermore, the jurisdiction of the FOIC to order disclosure is limited to “public records and every person shall have the right to inspect such records.” General Statutes § 1-19 (a).

I would await a case where one of the parties has properly claimed a special need for information from SOCITF different from that of the general public before attempting to formulate principles to govern the disclosure of such information.

       The Freedom of Information Act is found in General Statutes §§ 1-15, l-18a through l-19b, 1-21, l-21a and l-21c through l-21k. Maher v. Freedom of Information Commission, 192 Conn. 310, 311 n.1, 472 A.2d 321 .(1984).

       “[General Statutes] Sec. 1-21i. denial of access to public records or meetings, appeals, notice, orders, civil penalty, service of process upon commission, frivolous appeals, (a) Any denial of the right to inspect or copy records provided for under section 1-19 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request. Failure to comply with a request to so inspect or copy such public record within such four business day period shall be deemed to be a denial.”

       “FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
      Report of Hearing Officer
      February 8, 1985
      Docket #FIC 85-22
      In the Matter of a Complaint by Roger Moore, Metropolitan Editor, The Hartford Courant; Lynne Garnett, Reporter, The Hartford Courant; and The Hartford Courant,
      Complainants,
      against
      Commissioner, Department of Public Safety of the State of Connecticut,
      Respondent.
      The above captioned matter was heard as a contested case on February 7, 1985, at which time the complainants and the respondent appeared, stipulated as to certain facts, and presented testimony, exhibits and argument on the complaint. Chris Powell, Managing Editor, The Journal Inquirer, sought and was granted leave to intervene in the proceedings of February 7, 1985, and participated fully therein, pursuant to § l-21j-28 of the Regulations of Connecticut State Agencies.
      After consideration of the entire record the following facts are found:
      1. The respondent is a public agency within the meaning of § l-18a (a), G.S.
      2. By letter filed with the Commission on February 5, 1985, the complainants alleged that the respondent had denied their request for public records in violation of the Freedom of Information Act.
      3. It is found that on January 31, 1985, the complainants made a written request to the respondent for copies of, or access to, ‘all State Police reports, records and memoranda on any investigations conducted by your department into the conduct of Waterbury Assistant State’s Attorney Arthur M. McDonald.’
      4. It is found that the records specified in paragraph 3, above, consist of a State Police file numbered 84-00250-0. The file consists of an investigation of alleged bribe receiving by former Assistant State’s Attorney Arthur McDonald. The file includes investigatory reports, documentation of meetings with prosecutors and their staffs, and police reports of observations of conduct of the suspect and statements made by the suspect.
      5. The records described in paragraph 4, above, are public records within the meaning of §§ l-18a (d) and 1-19, G.S.

        6. The respondent claims that the subject records are exempt from public disclosure pursuant to § 1-19 (b) (3) (B), G.S.
      7. § 1-19 (b) (3) (B), G.S., permits a public agency to withhold from public disclosure:
      ‘records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . information to be used in a prospective law enforcement action if prejudicial to such action.’ (Emphasis added.)
      8. It is found that Judge Martin McKeever is conducting a judicial inquiry into allegations against Arthur McDonald.
      9. State’s Attorney John J. Kelley, who has been appointed to assist Judge McKeever, represented to the respondent that disclosure of the subject records would not be in the public interest because it would result in the disclosure of information that ‘may be used in prospective law enforcement actions’ and which would ‘have an adverse effect on prospective law enforcement actions.’
      10. The respondent relies entirely on State’s Attorney Kelley’s representation for the assertion of the applicability of the exemption in § 1-19 (b) (3) (B), G.S. The respondent otherwise maintains that the subject records are contained in a closed State Police file to which § 1-19 (b) (3) (B), G.S., does not apply.
      11. It is concluded that the respondent failed to prove by competent and credible evidence the applicability of the exemption in § 1-19 (b) (3) (B), G.S.
      12. The respondent further claims that it may not disclose the requested records because Judge McKeever has sealed the records of the judicial inquiry into the allegations against Arthur McDonald, pursuant to § 54-47 (c), G.S.
      13. § 54-47 (c), G.S., provides that: ‘Such [judicial] inquiries shall be conducted in public or private as said court or chief court administrator orders.’
      14. It is concluded that § 54-47 (c), G.S., empowers the court to seal court records but does not empower the court to preclude disclosure of State Police records that is otherwise required by the Freedom of Information Act.
      15. It is therefore concluded that the respondent has failed to comply with the provisions of §§ 1-15 and 1-19, G.S., by failing to provide the complainants with copies of, or access to, the public records described in paragraph 4, above.
      The following order by the Commission is hereby recommended on the basis of the record concerning the above captioned complaint:

        1. the respondent shall forthwith provide the complainants with copies of, or access to, the public record described in paragraph 4, above.
      Commissioner Robert J. Leeney as Hearing Officer
      Approved by order of the Freedom of Information Commission at its regular meeting of February 13, 1985.
      Mary Jo Jolicoeur
      Clerk of the Commission”

       “[General Statutes (Rev. to 1985)] Sec. l-21i. denial op access to PUBLIC RECORDS OR MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OP PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . . “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission. Said commission shall, within twenty days after receipt of the notice of appeal, hear such appeal after due notice to the parties, and shall decide the appeal within thirty days after such hearing by confirming the action of the agency or ordering the agency to comply forthwith with such relief as the commission, in its sound discretion, believes appropriate to rectify the denial of any right conferred by said sections. If a notice of appeal concerns an announced agency decision to meet in executive session or an ongoing agency practice of meeting in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing. If after the preliminary hearing the commission finds probable cause to believe that the agency decision or practice is in violation of sections 1-18a and 1-21, the agency shall not meet in executive session for such purpose until the commission decides the appeal. If probable cause is found by the commission, it shall conduct a final hearing on the appeal and render its decision within five days of the completion of the preliminary hearing. Such order may declare any or all actions taken at any meeting to which such person was denied the right to attend null and void and may require the production or copying of any public record. In addition, said commission, upon the finding that a denial of any right created by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, was without reasonable grounds may, in its discretion, impose a civil penalty against the custodian or other official directly responsible for such denial of not less than twenty nor more than one thousand dollars, after such custodian or other official has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-177 to 4-184, inclusive. If the commission finds that a person has taken an appeal to the commission under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency against which the appeal has been taken, it may, in its discretion, impose a civil penalty against such person of not less than twenty dollars nor more than one thousand dollars, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-177 to 4-184, inclusive. In the case of failure to pay any such penalty levied by the commission pursuant to this subsection, within thirty days of written notice sent by certified or registered mail to such person, the superior court for the judicial district of Hartford-New Britain, on application of the commission, shall issue an order requiring such person to pay the penalty imposed.”

       “[General Statutes] Sec. 1-211. denial of access to public records OR MEETINGS. APPEALS. NOTICE. ORDERS. CIVIL PENALTY. SERVICE OF PROCESS UPON COMMISSION. FRIVOLOUS APPEALS. . . .
      “(d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. Notwithstanding the provisions of section 3-125, legal counsel employed or retained by said commission shall represent said commission in all such appeals and in any other litigation affecting said commission. Notwithstanding the provisions of subsection (b) of section 4-183 and section 52-64, all process shall be served upon said commission at its office. Any appeal taken pursuant to this section shall be privileged in respect to its assignment for trial over all other actions except writs of habeas corpus and actions brought by or on behalf of the state, including informations on the relation of private individuals. Nothing in this section shall deprive any party of any rights he may have had at common law prior to January 1, 1958. If the court finds that any appeal taken pursuant to this section or section 4-183 is frivolous or taken solely for the purpose of delay, it shall order the party responsible therefor to pay to the party injured by such frivolous or dilatory appeal costs or attorney’s fees of not more than one thousand dollars. Such order shall be in addition to any other remedy or disciplinary action required or permitted by statute or by rules of court.”

       “[General Statutes] Sec. 29-170. publication of information relative to organized crime. In order to keep the public informed as the operations of organized crime and the problems encountered by the state in dealing with organized crime, the state-wide organized crime investigative task force may disseminate such information by such means and to such extent as it deems appropriate.”

       At the time relevant to this action there was no investigation being pursued. McDonald had been convicted and sentenced, and under normal circumstances the file would have been “purged” but for this particular action.

       “[General Statutes] Sec. 1-19. access to public records, exempt records. (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings.”

       The legislative policy of limited disclosure is further reflected in General Statutes § 29-171 which imposes criminal sanctions for the unauthorized disclosure of information possessed by SOCITF. Section 29-171 provides: “illegal disclosure of information; class a misdemeanor. Any person conducting or participating in any investigation under this chapter who discloses to any person other than the director or a member of the statewide organized crime investigative task force or the advisory committee the name of any informant or any information obtained or given upon any investigation, except as directed by the director of the state-wide organized crime investigative task force, shall be guilty of a class A misdemeanor.”

       The FOIC, in its brief, argues that the General Assembly adopted the FOIA two years after SOCITF was created and that the FOIA expresses a strong legislative policy of access to public records. Thus, the FOIC contends that General Statutes § 29-170 should not be read to allow SOCITF to withhold records from the public. The mainstay provision of the FOIA, General Statutes § 1-19 (a), however, was enacted in 1957 as Public Acts 1957, No. 428. General Statutes §§ 29-167 through 29-172, on the other hand, were enacted in 1973 as part of Public Acts 1973, No. 73-592. While we recognize that subsequent to the passage of § 29-170, the legislature amended § 1-19 (a) and narrowed the exceptions to the disclosure requirements; see, e.g., Public Acts 1975, No. 75-342, § 2 (a); Public Acts 1984, No. 84-112, § 1; none of the amendments changed the statute with respect to the “otherwise provided for by state statute” exception. We therefore find the FOIC’s argument without merit.

       “[General Statutes] Sec. 29-167. investigations by task force. The state-wide organized crime investigative task force shall have the duty and power to conduct and coordinate investigations in connection with: (1) The faithful execution and effective enforcement of the laws of the state, with particular reference to those laws controlling organized crime and racketeering; (2) the conduct of public officers and public employees, and of officers and employees of public corporations and authorities; and (3) any matter concerning the public peace, public safety and public justice. With respect to the performance of its functions, duties and powers, the state-wide organized crime investigative task force shall be authorized to conduct any investigation authorized by this section at any place within the state and to function at any place within the state as it may deem necessary.”
      “[General Statutes] Sec. 29-169. cooperation with task force by governmental UNITS. AGREEMENTS WITH OTHER STATES. COOPERATION WITH FEDERAL AUTHORITIES. REFERRAL OF EVIDENCE OF CRIME OR MISCONDUCT, (a) The state-wide organized crime investigative task force may duly request and may receive from every department, division, board, bureau, commission or other agency of the state, or of any political subdivision thereof, cooperation and assistance in the performance of its duties, including the temporary assignment of personnel to the state-wide organized crime investigative task force which might be necessary in order to carry out its duties and responsibilities.
      “(b) The state-wide organized crime investigative task force may enter into mutual assistance and cooperation agreements with other states pertaining to those law enforcement matters extending across the boundaries of the state into other states; and may consult and exchange information with officers and agencies of other states with respect to law enforcement problems of mutual concern.
      “(c) The task force shall cooperate with departments and officers of the United States government in the investigation of violations of the federal laws within this state.
      “(d) Whenever it appears to the director of the state-wide organized crime investigative task force that there is cause for prosecution for a crime, or for the removal of a public officer for misconduct, he shall refer the evidence of such crime or misconduct to the chief state’s attorney.”

       General Statutes § 54-47 subsequently was repealed by Public Acts 1985, No. 85-611, § 9.