NOTICE

 

 

 

 

 

Docket# FIC 2003-313; Donald S. Connery v. State of Connecticut, Department of Public Safety, Division of State Police 

 

 

Pursuant to the March 9, 2005, vote of the Freedom of Information Commission, the final decision in the above-captioned matter is vacated. 

 

 

 

 

 

                                                                        _____________________________

                                                                        Mary E. Schwind

                                                                        Director, Law Department

 

 

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on January 22, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   This case was consolidated for hearing with docket #FIC 2003-320, Ruth Epstein and The Lakeville Journal Company, LLC v. State of Connecticut, Department of Public Safety, Division of State Police.

 

            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.  By letter of complaint filed September 3, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for records of the homicide of Barbara Gibbons.  That case is commonly known as the Peter Reilly case, because of the conviction, ultimately set aside in 1977, of the victim’s teenaged son in 1974.

 

            3.  It is found that by letter dated August 23, 2003 the complainant requested the complete state police file on the Barbara Gibbons homicide case, from September 28, 1973 to the present.  Specifically, the complainant indicated that the records in the file should include:

 

            (a) the original investigation of the crime conducted by Lt. James Shay and subsequent activities during the 1973-76 period;

           

            (b) the 1977 re-investigation ordered by Governor Ella Grasso on 1/26/76 and led by Captain Thomas McDonnell;

           

(c) the state police documents and correspondence in response to the numerous inquiries about the case in 1977-79 from the Governor’s office, Judge Maurice Sponzo as a one-man grand juror, Chief State’s Attorney Joseph Gormley, special prosecutor Paul McQuillan, and Chief State’s Attorney Austin McGuigan; and

 

            (d) all subsequent material, from 1980 to the present, concerning the case including response to media inquiries.

 

4.  It is found that, by letter dated August 28, 2003, the respondent denied the request on the grounds that the investigation was still pending and that the records were exempt from disclosure pursuant to §1-210(b)(3), G.S.

 

            5.  It is further found that, by letter dated November 28, 2003, the respondent added that it had “upon further review of this matter … determined that pursuant to C.G.S. Sec. 1-215 and 54-142a, there is no public record in response to your request.”

 

            6.  The respondent maintains that there are no public records responsive to the complainant’s request, and that the Commission therefore lacks jurisdiction over the complaint, pursuant to §§54-142a(a) and 1-215(a), G.S.

 

            7.  Section 54-142a(a), G.S., provides in relevant part:

 

Whenever 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….

8.  Section 54-142a(e), G.S., provides in relevant part:

…any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record …information pertaining to any charge erased under any provision of this section….

9.  With respect to disclosure to the subject of the record, §54-142a(f), G.S., provides in relevant part:

Upon motion properly brought, the court or a judge thereof, if such court is not in session, may order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased ….

10.  Section 54-142c(a), G.S., provides in relevant part:

…any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased record or information.

           

11.  It is concluded that erasure does not mean the physical destruction of records.  Rather it involves sealing the files and segregating them from materials that have not been erased and protecting them from disclosure.  State v. Anonymous, 237 Conn. 501, 513 (1996)

 

12.  Section 1-215(a), G.S. provides in relevant part:

 

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 1-212 and subsection (a) of section 1-210, 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 1-210. 

 

            13.  Section 1-215(b), G.S., provides: 

 

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. 

 

14.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

16.  The respondent maintains that §1-215(a), G.S., provides that any erased record is not a public record.

 

            17.  It is concluded, however, that §1-215(a), G.S., by its terms specifically applies only to the limited information contained in a “record of arrest,” not to all erased records.

 

            18.  It is therefore concluded that the Commission has jurisdiction to determine whether records have been erased, and whether erased records are exempt from disclosure.

 

            19.  It is found that requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

            20.  It is found that Barbara Gibbons was killed in the home she shared with her son, Peter Reilly, an 18-year-old high school senior.

 

            21.  It is found that Reilly, who had arrived at home that night after a teen center meeting, reported the crime in a series of telephone calls for medical assistance.

 

            22.  It is found that Reilly was taken into custody and interrogated, made certain confessions, and was placed under arrest for the crime of murder.        

 

            23.  It is found that, after a lengthy jury trial, Reilly was found guilty of the crime of manslaughter in the first degree on April 12, 1974.

 

            24.  It is found that Reilly subsequently petitioned for a new trial on the grounds of newly discovered evidence.

 

            25.  It is found that a new trial was granted on March 25, 1976.  Reilly v. State, 32 Conn. Sup. 349 (1976) (Speziale, J.)  In his memorandum of decision, Judge Speziale, who had also presided over the original trial, concluded that, “After a long and deliberate study of all of the transcripts of the original trial and the instant proceeding, together with the pleading and exhibits in both cases, this court concludes that an injustice has been done and that the result of a new trial would probably be different.”  Reilly v. State, at 356-57.

 

            26.  It is found that, on November 24, 1976, Judge Maurice Sponzo dismissed the charges against Reilly, after State’s Attorney Dennis A. Santore determined not to prosecute Reilly for the Gibbons homicide.

 

            27.  It is found that on November 26, 1976, Governor Ella Grasso ordered the respondent to reinvestigate the Gibbons homicide, and asked Chief State’s Attorney Joseph Gormley to see if there had been misdeeds in the case by police or prosecutors.

 

            28.  It is found that on December 23, 1976, three days after Gormley reported that he had found nothing improper in the police and prosecution actions, Judge Speziale named a one-man grand jury to investigate possible crimes by the state in the handling of the Gibbons homicide.  Judge Maurice Sponzo was appointed to conduct the inquiry, with the assistance of Paul McQuillan as special state’s attorney.

 

            29.  It is found that on June 1, 1977, Judge Sponzo’s report of his findings concluded that no crimes were committed by police or prosecutors, but he severely criticized the state’s handling of the case.  Eliminating Peter Reilly as a suspect, Sponzo’s secret addendum to his report named five persons as suspects worthy of investigation.

 

            30.  It is found that on September 28, 1977, Captain Thomas J. McDonnell, the detective division commander who led the state police reinvestigation ordered by Governor Grasso, issued his 58-page report.  Eliminating all other suspects, he came to “the inescapable conclusion” that Peter Reilly “is, in fact, the sole perpetrator in the Barbara Gibbons homicide.”

 

            31.  It is found that on November 22, 1977, Judge Sponzo added the words “with prejudice” to the dismissal of the manslaughter charges against Reilly ordered a year previously.

 

            32.  It is found that on June 2, 1978, Governor Grasso authorized a $20,000 reward for information leading to the solution of the Gibbons homicide, but no individuals were subsequently charged with the crime.

 

            33.  It is found that the police and court records of the Gibbons homicide as they pertain solely to the charges against Mr. Reilly were erased by operation of law no later than 1978.

 

            34.  The complainant maintains that given the heightened public interest in the Reilly case, and continuing assertions since 1980 by present and former state police officials and employees of Reilly’s guilt, the records should be disclosed so that the public may know whether the respondent conducted its investigation and prosecution properly.

 

            35.  The complainant additionally maintains that the requested records must be disclosed because they were disclosed, at least in part, to a reporter sometime in 1988.

 

            36.  While it appears that a redacted disclosure was in fact made to a reporter at the Lakeville Journal who was writing an anniversary story at the time, it is concluded that the erasure statutes contain no provisions for waiver, and that such a disclosure would not affect the status of the records as erased.

 

37.  On February 19, 2004 the Commission received what appears to be an affidavit of Peter Reilly, stating his desire that the requested records be disclosed, and waiving any privacy rights that he might have.

 

            38.  However, Mr. Reilly is not a party to this case, nor has he requested to be made one.  Nor did any party offer Mr. Reilly’s affidavit into evidence.  The affidavit is therefore not properly before the Commission.  Even if it were, the erasure statutes have been interpreted by the Supreme Court to mean that the blanket prohibition against disclosure also applies to the person who was the defendant in the criminal case, and that the erasure provisions may not be waived by him.  Lechner v. Holmberg, 165 Conn. 152, 161-62 (1973); State v. West, 192 Conn. 488, 495-96 (1984). 

 

39.  It is concluded that the respondent did not violate §1-210(a), G.S., when it failed to provide copy of erased records that pertained solely to the dismissed charges against Mr. Reilly.

 

40.  However, the complainant maintains that, even if the records pertaining solely to Mr. Reilly have properly been erased, not all of the records of the Gibbons homicide pertain to Mr. Reilly, and that the records that do not pertain to Mr. Reilly are not erased by operation of §54-142a(a), G.S.

 

41.  Based in part on the grand jury report described in paragraph 29, above, it is found that some of the records maintained by the respondent pertain to an investigation of the respondent’s conduct, separate and distinct from records pertaining to Mr. Reilly that are subject to erasure, and that some of the records also pertain to five other individuals deemed worthy of investigation.

 

42.  The language of §54-142a, G.S., does not define the phrase “records … pertaining to such charge” that are to be erased.  Specifically, the statute does not address the status of records that pertain to suspects and subjects other than the accused. 

 

43.  With respect to the erasure statute, the Supreme Court has stated that it should be construed to give it the “legal and practical effect” intended by its drafters, as revealed by the legislative history.  Cislo v. Shelton, 240 Conn. 590, 608 (1997). 

 

44.  In State v. Anonymous, 237 Conn. 501, 516 (1996), the Supreme Court observed that the fundamental purpose of the records erasure and destruction scheme embodied in §54-142, G.S.,  is to “erect a protective shield of presumptive privacy for one whose criminal charges have been dismissed.”  The purpose of the erasure statute is to protect innocent persons from the harmful consequences of a criminal charge which is subsequently dismissed.

 

45.  In Cislo v. Shelton, 240 Conn. 590 (1997), the Supreme Court further indicated the central function of the erasure statute.  Specifically, the court observed that the legal effect of erasure, as specified by a 1967 amendment (P.A. 67-181) to §54-90, G.S., is such that “[n]o person who shall have been the subject of such an erasure order shall be deemed to have been arrested ab initio ….”    Cislo v. Shelton, supra at 600-601. Later legislative debate in 1974 demonstrated that the legislature primarily intended to reinforce the ability of those persons whose records had been erased after a nolle to state that, with respect to those erased charges, they had never been arrested.  Id. at 604-605.

 

46.  It is found that, given the extensive publicity surrounding Barbara Gibbons’ death, it would appear to be of little comfort to Mr. Reilly to be able to declare, because of the erasure statutes, that he was never arrested for the crime. 

 

47.  In Pascal v. Pascal, 2 Conn. App. 472, 484-85 (1984) the Appellate Court observed: “The beneficiaries of the provisions of General Statutes §54-142a are “only the accused in criminal cases ….  The erasure of criminal records demanded by [that statute] is a personal right of the accused only.”  (citing McCarthy v. FOIC, 35 Conn. Sup. 186, 193 (1979).)

 

48.  In McCarthy v. FOIC, supra, the Superior Court (Bieluch, J.) held that the coverage of §54-142a, G.S., cannot be extended collaterally to records of complaints and disciplinary proceedings involving police officers associated with erased criminal cases.

 

49.  It is concluded that records used to investigate the conduct of the respondent and its employees, and records pertaining to other persons who either were or should have been investigated as suspects in the crime of which Mr. Reilly was accused, are not shielded by the provisions of §54-142a, G.S.

 

50.  It is found that the legislative purpose of the erasure statutes is clearly not served by shielding from public view information that might tend to implicate others in the crime of which the accused was acquitted, or that might cast light on the respondent’s investigation of the homicide, all without providing any functional protection to the accused.

 

51.  The U.S. Supreme Court has observed, with respect to the federal counterpart to the FOI Act, that the purpose of that FOI Act is to shed light “on an agency’s performance of its statutory duties.”  The statute is a commitment to “the principle that a democracy cannot function unless the people are permitted to know what their government is up to.”  The statute’s “central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny.”  U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772-774 (1989).

 

52.  It is found that the result of erasure of records of the Barbara Gibbons homicide not pertaining to Mr. Reilly would be to support the respondent’s oft-repeated contention that Mr. Reilly is the actual killer, to prevent any possibility of bringing forth evidence that might exonerate Mr. Reilly, to frustrate the public’s legitimate public interest in the controversy, and to protect the identity of other individuals who might have been but were not charged with the crime.  Such a result is directly contrary to a fundamental  maxim of statutory construction:

 

“The law favors rational and sensible statutory construction….  The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable….  When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possible bizarre results.

 

Maciejewski v. West Hartford, 194 Conn. 139, 151-52 (1984).

 

53.  It is therefore concluded that records that do not pertain solely to Mr. Reilly, but rather pertain to an investigation of the respondent’s conduct and the respondent’s investigation of other individuals, are not erased by the operation of §54-142a, G.S.

 

            54.  It is therefore concluded that the respondent violated §1-210(a), G.S., when it denied the existence of, and refused to provide copies, of records of the Barbara Gibbons homicide that do not pertain to the charges against Mr. Reilly, but rather pertain to an investigation of the respondent’s conduct and the respondent’s investigation of other individuals.

 

 

            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 to the complainant copies of records of the Barbara Gibbons homicide that do not solely pertain to the charges against Mr. Reilly.  Such disclosed records shall include any records investigating, or used to investigate,

the conduct of the respondent, and any records of the respondent’s investigation of inviduals other than Mr. Reilly.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of September 2, 2004.

 

 

___________________________________

Petrea A. Jones

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:

 

Donald S. Connery

c/o Alan Neigher, Esq.

1804 Post Road East

Westport, CT 06880

 

State of Connecticut,

Department of Public Safety,

Division of State Police

c/o Stephen R. Sarnoski, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-313/FD/paj/09/2/2004