FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Robert F. Field,
Complainant,
against Docket
#FIC 1997-248
Major Crime Squad, Troop “L”, State of
Connecticut,
Department of Public Safety, Division of State
Police;
State of Connecticut, Department of Public
Safety,
Division of State Police; and Patricia Gilbert,
Assistant State’s Attorney,
Respondents February
11, 1998
The
above-captioned matter was heard as a contested case on November 10, 1997, at
which time the complainant and the respondents appeared, and presented
testimony, exhibits and argument on the complaint. The caption of the case has
been amended in order to reflect the addition of Patricia Gilbert, Assistant
State’s Attorney, as a party respondent.
After
consideration of the entire record, the following facts are found and
conclusions of law are reached:
1. The respondents are public agencies within
the meaning of §1-18a(a),
G.S.
2. By two letters each dated July 10, 1997, the
complainant requested:
a) all complaints, memoranda, log entries,
notes, correspondence, police reports, and, if available, any recordings of
complaints regarding gunshots heard at 166 Portland Avenue, said complaint
emanating from a person or persons working at the Bread and Roses hospice, a
nearby convalescent facility, from January, 1995 through April 18, 1995 (the
“gunshot records”); and
b) all faxes and teletypes and, if available,
recordings of any telephone calls made to the North Carolina State Police
regarding information transmitted to said police department, in order to put
together search warrants and/or arrest warrants and/or affidavits for same
between the dates of April 18, 1995 and
June 1, 1995 (the “North Carolina communications”, which when taken
together with the gunshot records are herein the “requested records”).
3. By letters dated July 16 and July 22, 1997,
the respondents declined to furnish the requested records to the complainant,
citing §1-19(b),
G.S., as the legal basis for such action.
4. By letter dated August 7, 1997, and filed on
August 12, 1997, the complainant appealed to the Commission alleging that the
respondents violated the Freedom of Information Act by declining to provide the
requested records, stating that “there is no further pending investigation in
this matter by the Connecticut State Police”.
5. At the hearing and in their post-hearing
brief, the respondents stated their contention that:
a) they do not have any gunshot records in
their custody; and
b) the North Carolina communications exist, but
that the complainant is not entitled to them based upon the provisions of §§1-19b(b),
1-20b, and 1-19(b)(3)(C), G.S.
6. Section 1-19b(b) provides in pertinent part:
Nothing in the Freedom
of Information Act shall be
deemed in any manner
to… limit the rights of litigants,
including parties to
administrative proceedings, under
the laws of discovery
of this state….
7. Section 1-20b, G.S., provides:
(a) Notwithstanding any provision of the general
statutes to the contrary, and except as otherwise provided in this section, any
record of the arrest of any person, other than a juvenile, except a record
erased pursuant to chapter 961a, shall be a public record from the time of such
arrest and shall be disclosed in accordance with the provisions of section 1-15
and subsection (a) of section 1-19, except that disclosure of data or
information other than that set forth in subdivision (1) of subsection (b) of
this section shall be subject to the provisions of subdivision (3) of
subsection (b) of section 1-19. Any
personal possessions or effects found on a person at the time of such person's
arrest shall not be disclosed unless such possessions or effects are relevant to
the crime for which such person was arrested.
(b) For the purposes of this section,
"record of the arrest" means (1) the name and address of the person
arrested, the date, time and place of the arrest and the offense for which the
person was arrested, and (2) at least one of the following, designated by the
law enforcement agency: the arrest
report, incident report, news release or other similar report of the arrest of
a person.
8. And §1-19(b)(3),
G.S., provides that various records shall be exempt from mandatory disclosure,
including:
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 …(C)
information to be used in a prospective law enforcement action if prejudicial
to such action…[and]
9. It is found that the respondents do not have
any gunshot records in their custody.
10. It is found that a criminal prosecution for
five counts of murder is currently pending against Geoffrey Ferguson, that the
complainant has made the same exact request for the requested records through
discovery, and that the relevant motion to compel was denied by the court.
11. It is found that the North Carolina
communications are “record(s) of the arrest of” Geoffrey Ferguson, as the term
is utilized in §1-20b,
G.S.
12. It is found that the North Carolina
communications are “not otherwise available to the public” and “were compiled
in connection with the…investigation of crime”, as the terms are utilized in §1-19(b)(3),
G.S.
13. It is also found that the North Carolina
communications do contain information that may be used in a prospective law
enforcement action.
14. It is found that disclosure of the North
Carolina communications would prejudice a “prospective law enforcement action”,
the pending criminal prosecution for murder described at paragraph 10, above,
by disclosing the strategy of the respondent state’s attorney, by prejudicing
the respondent state’s attorney’s ability to defend various motions filed by
the complainant, including a motion to suppress evidence, and by causing
further newspaper accounts that could bias potential jurors.
15. It is concluded, based upon the finding at
paragraph 10, above, that disclosure mandated by the Freedom of Information Act
would, in effect, overrule the trial court and therefore “would limit the
rights of litigants…under the laws of discovery of this state….” in the very
manner prohibited by §1-19b(b),
G.S. Such a result “would transform the commission, an executive agency, into
the overseer of criminal discovery”, “an extraordinary result”. William H.
Gifford et al. v. Freedom of Information Commission et al., 227 Conn. 641
(1993), p. 665.
16. It is also concluded that disclosure of the
North Carolina communications “would not be in the public interest” because it
would prejudice a prospective law enforcement action, as found at paragraph 14,
above.
17. It is therefore concluded that the North
Carolina communications are records of law enforcement agencies which are
exempt from mandatory disclosure pursuant to §1-19(b)(3)(C),
G.S.
18. It is also concluded, based upon the
conclusion set forth at paragraph 17, above, that the North Carolina
communications are exempt from mandatory disclosure pursuant to the provisions
of §1-20b,
G.S.
19. It is therefore concluded that the
respondents did not violate §§1-19(a)
and 1-15(a), G.S., by failing to provide the complainants with a copy of the
requested records.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1.
The complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
February 11, 1998.
_________________________
Doris V. Luetjen
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE
FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS,
PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR
AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Robert F. Field
c/o Atty. Paul Eschuk
146 White Street
Danbury, CT 06810
Major Crime Squad, Troop “L”, State of
Connecticut,
Department of Public Safety, Division of State
Police;
State of Connecticut, Department of Public
Safety,
Division of State Police; and Patricia Gilbert,
Assistant State’s Attorney
c/o Henri Alexandre
Assistant Attorney General’s Office
110 Sherman Street
Hartford, CT 06105
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-248/FD/tcg/02111998