FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on January 9, 2003, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1.      The respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      It is found that by letters dated August 11, 2002 and September 3, 2002, the complainant made a request to the Bridgeport Police Department for access to booking pictures of those who were arrested as part of incident number 000707-27 (hereinafter “booking photographs”).

 

3.      It is found that by letter dated September 5, 2002, Sergeant Glen Prentice of the Bridgeport Police Department responded to the complainant’s request and informed him that it is not the department’s policy to provide photographs of arrested persons to the public.

 

4.      By letter dated September 12, 2002, the complainant requested that Sergeant Prentice reconsider his position and make the requested booking photographs available to him.  The complainant also informed Sergeant Prentice that a previously requested citizen complaint form had not been enclosed with the September 5, 2002 letter, as indicated in that letter, and that he had not received the second page of the “section on authority (1-12)” from the department’s policies and procedures manual.  The complainant requested that Sergeant Prentice review and respond to the omission of the requested records.

 

5.      By letter dated September 22, 2002, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his September 12, 2002 request. 

 

6.      Section 1-210(a), G.S., provides in relevant part that:

 

[e]xcept 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 receive a copy of such records in accordance with the provisions of section 1-212.  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.

 

7.      Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

8.      It is found that the requested records, to the extent such records exist, are public records within the meaning of §1-210(a), G.S.

 

9.      It is found that the citizen complaint form, described in paragraph 4 above, was inadvertently omitted from Sergeant Prentice’s September 5, 2002 letter and was subsequently provided to the complainant on or about September 17, 2002.

 

10.  With respect to the complainant’s request for the “section on authority (1-12)” from the department’s policies and procedures manual, described in paragraph 4 above, it is found that there were a series of communications between the complainant and Sergeant Prentice prior to Sergeant Prentice’s September 5, 2002 letter, which resulted in the complainant reviewing the entire manual on August 26, 2002 at the police department and designating portions of the manual that he wanted copied and sent to him.

 

11.  It is found that the respondent’s failure to provide the second page of the “section on authority (1-12)” with the other portions of the manual, was inadvertent, and that such section was subsequently provided to him.

 

12.  At the hearing on this matter the complainant argued that although he eventually received the citizen complaint form and the “section on authority (1-12)”, the respondent’s provision of such records was not prompt and that the respondent therefore violated §1-212(a), G.S.

 

13.  It is found, however, based on the facts and circumstances in this case as they pertain to the complainant’s request for the citizen complaint form and the policy and procedures manual, that the respondent complied promptly with the complainant’s request for those records; and it is therefore concluded that the respondent did not violate §1-212(a), G.S., with respect thereto. 

 

14.  With respect to the booking photographs described in paragraphs 2 and 4, above, the respondent argued at the hearing in this matter, that the photographs are exempt from disclosure pursuant to §1-210(b)(3)(C), (D), and (G), G.S., if the prosecution of the subjects of the photographs was pending.  The respondent’s counsel indicated that the prosecutor’s office had been contacted to determine if the prosecution was still pending, however, as of the date of the hearing on this matter, that office had not responded.  The respondent indicated that if the matters regarding the subjects were closed, the photographs would be provided to the complainant.  The respondent argued that otherwise, disclosure of the photographs might reveal the identity of a prisoner that is in protective custody who may now be an informant for the prosecution and thereby prejudice the prosecutor’s case.  The respondent argued in the alternative that the photographs might reveal the identity of an individual whose records have been erased or nollied.  The respondent also argued that the requested records were exempt from disclosure pursuant to §1-210(b)(18)(G) and (H), G.S.

 

15.  Section 1-210(b), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:

 

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, (D) investigatory techniques not otherwise known to the general public . . . (G) uncorroborated allegations subject to destruction pursuant to section 1-216;

 

16.  It is found that the respondent failed to prove that the booking photographs constitute information to be used in a prospective law enforcement action and that their disclosure would be prejudicial to such action, within the meaning of §1-210(b)(3)(C), G.S.

 

17.  It is found that booking photographs do not constitute an investigatory technique not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G.S.

 

18.  It is also found that booking photographs do not constitute uncorroborated allegations subject to destruction, within the meaning of §1-210(b)(3)(G), G.S.

 

19.  It is concluded, based on the findings in paragraphs 16, through 19, above, that the exemptions contained in §1-210(b)(3)(C), (D) and (G), G.S., do not apply to the booking photographs requested by the complainant and they are not exempt from disclosure pursuant to those sections.

 

20.  With respect to the respondents argument that the requested booking photographs might reveal the identity of an individual whose records have been erased or nollied, §54-142(a), G.S., provides in relevant part that:

 

(a)    [w]henever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records, and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken...

 

(c) [w]henever any charge in a criminal case has been nolled in the Superior Court, or in Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased...

 

(e)  ...any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject’s identity, information pertaining to any charge erased under any provision of this section....

 

21.  Section 54-142a, G.S., requires erasure of all police records pertaining to charges which are dismissed or nolled; however the respondent failed to prove that the booking photographs were erased or subject to erasure pursuant to that provision.

 

22.  It is concluded therefore that the booking photographs are not exempt from disclosure pursuant to §54-142a, G.S.

 

23.  With respect to the respondent’s argument that the booking photographs were exempt from disclosure pursuant to §1-210(b)(18)(G) and (H), G.S., that section provides in relevant part that nothing in the FOI Act shall require the disclosure of:

 

Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

 

(G)  Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H)  Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers;

24.  It is found that the respondent failed to prove that the booking photographs constitute the type of records listed §1-210(b)(18)(G) and (H), G.S.

 

25.  It is further found that the respondent did not submit the booking photographs to either the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services for their review regarding their disclosure.

 

26.  It is concluded therefore that the exemption contained in §1-210(b)(18)(G) and (H), G.S., does not apply to the booking photographs requested by the complainant and that such records are not exempt from disclosure pursuant to those sections.

 

27.  It is further concluded therefore that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the requested booking photographs.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

 

            1.  Forthwith the respondent shall provide the complainant with a copy of the requested booking photographs as described in paragraph 2 and 4 of the findings above, free of charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

May 28, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Ethan Book, Jr.

PO Box 1385

Fairfield, CT  06432

 

Chief, Police Department,

City of Bridgeport

c/o Melanie J. Howlett, Esq.

Assistant City Attorney

Office of the City Attorney

999 Broad Street, 2nd Floor

Bridgeport, CT  06604

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-448FD/abg/05/29/2003