More than a decade after Barbara Hamburg was murdered outside her Madison home, the fight over whether the public should have access to the investigation into her death is continuing to escalate — a fight that could have broad implications for access to cold case files across Connecticut.
The Madison Police Department is appealing a state judge’s order that it must turn over its investigative files on Hamburg’s 2010 murder to a pair of documentary filmmakers, including Hamburg’s son, who examined the investigation in the hit HBO miniseries “Murder on Middle Beach.”
Madison Hamburg and producer Anike Niemeyer had requested the files while filming the series and were summarily denied by the department. They successfully appealed to the Connecticut’s Freedom of Information Commission, which ruled last year the police department had to turn over its files free of charge to the pair.
The police department initially provided two boxes of materials to the filmmakers late last year — which the pair said were incomplete — before the department reversed course and appealed the commission’s decision in Superior Court.
Judge Daniel Klau upheld the commission’s decision that the files must be turned over in a ruling of his own last month, but last week the police department appealed that decision, too. The fight over the records now heads to the Connecticut Appellate Court, while the long-cold investigation into the murder itself remains at a standstill even in the wake of the popular TV series.
The case raises questions about exactly when a cold case is considered cold enough to release the investigative files publicly and likely is destined for much further debate by both the judiciary and general assembly, Klau reasoned.
“The court has attempted to resolve a long unsettled question about the degree of certainty concerning a prospective law enforcement action that is required to withhold records. ... But the court has no doubt that this decision is not the last word on this issue, nor should it be,” Klau wrote in his conclusion. “It is more than a reasonable possibility, pun intended, that the Connecticut Appellate or Supreme Court will review this decision. That is as it should be. This issue warrants appellate scrutiny.”
Barbara Hamburg was found murdered outside her family’s Middle Beach Road home on March 3, 2010, but the case went cold and no one has ever been charged in connection with her death.
Madison Hamburg, who was a teenager when his mother died, went on to study documentary filmmaking. In 2016, he began to film a project reviewing the circumstances around his mother’s death, interviewing family members and pursuing information from the Madison Police Department about its investigation. The resulting documentary series was picked up by HBO, and the four-part “Murder on Middle Beach” premiered late last year.
The series examined the Hamburg family’s relationships in the wake of Barbara’s death and focused on suspicions both the police and family had about her husband and Madison’s father, Jeffrey Hamburg. The episodes also addressed skepticism about the police department’s initial investigations and even included surreptitious recordings of Madison Hamburg’s discussions with detectives at the department.
In 2019, Madison Hamburg and Niemeyer requested the department’s investigative files under the state’s public records law, but the department refused, claiming the case remains an open and ongoing investigation.
The filmmakers appealed to the state’s Freedom of Information Commission, which reviews public records disputes. A hearing was held in February 2020, where Detective Christopher Sudock testified on behalf of the department that the release could jeopardize a “prospective law enforcement action,” such as a search or arrest warrant, but could not identify any specific actions investigators had planned.
The commission ruled in August 2020 that because the department could not identify any specific “prospective law enforcement action,” they had to turn the documents over to the filmmakers, court records show.
The department did turn over two full boxes of documents to Hamburg and Niemeyer in October 2020, but the filmmakers alerted investigators in early November that dozens of files were apparently missing from those records. A list of additional records submitted to the court includes surveillance video, recordings of specific voicemails, non-police tape-recorded conversations and copies of items seized from Barbara Hamburg’s bedroom safe.
Weeks of back-and-forth ensued as the show premiered on HBO. In late December, Niemeyer filed another complaint with the FOIC over the missing records, and the department responded by appealing the commission’s original order to release any of the documents in the first place.
Klau reviewed the case and found in August that the police department cannot use the mere “theoretical possibility” of a future law enforcement action to keep the investigative files secret but conceded there is little precedent for how investigators or the FOIC should determine what constitutes such a future action.
“There are strong public policy reasons for denying the general public unfettered access to investigation files, while the police are actively investigating a crime and continuing to collect new evidence and pursue new leads,” Klau wrote in his decision.
“However, when law enforcement has effectively exhausted all efforts to arrest and prosecute a suspect, and when the statistical data show that the probability of a prosecution resulting from long-unsolved cases approaches zero, it is difficult to understand how denying public access to criminal investigation files in perpetuity serves the public interest in solving crimes and bringing perpetrators to justice. The old adage about a ‘fresh pair of eyes’ is particularly apt. Moreover, allowing the public access to cold case files after an appropriate period of time is far more likely to improve the odds of an arrest and successful prosecution than it it is to prejudice that outcome.”
Precisely how much time should pass between a case going cold and when the files should be accessible to the public is up for debate, Klau conceded, but he kicked that decision to the legislature, arguing state lawmakers are in the best position to set out in writing a clear timeframe for when and how such records should be made available.
Madison police have not yet filed a brief outlining the grounds of their appeal with the Appellate Court, and attempts to reach the department this past week were unsuccessful.
Attorney David Schulz, a Yale Law professor and member of the school’s Media Freedom and Information Access Clinic that has worked with Hamburg and Niemeyer on the records fight, called Klau’s decision “thorough and thoughtful.” He agreed the eventual conclusion of this case could help set new precedent for how the public access old police case files across the state, which is an important tool for holding investigators accountable, he said.
“If you say you’re going to keep a file closed forever on the chance that something might develop, that means the public in most cases will never get to look at these files,” Schulz said Friday. “Having access to these files and what the police are doing is one of the key ways we have to hold police accountable, which is a huge issue today.
“I’m not trying to suggest anything was done improperly here, but there’s no way to know ... without seeing what they did. And if they can keep it closed forever, you’ll never be able to hold them accountable or give them an incentive not to cover something up.”
Zach Murdock can be reached at firstname.lastname@example.org.