FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 25, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that, on October 20, 2007, Justin Surdyka was arrested by the Vernon Police Department and charged with the crime of homicide. 

 

3.      It is found that, by letter dated October 22, 2007, the complainants requested that the respondent provide them with a copy of the mug shot of Justin Surdyka, taken on October 20, 2007 (hereinafter “the requested record” or “the mug shot”). 

 

4.      It is found that, by letter dated October 22, 2007, the respondents denied the complainant’s request, contending that the requested record is exempt from mandatory disclosure by virtue of §§1-17a and 1-210, G.S.

 

5.   By letter dated October 26, 2007, and filed with the Commission on October

30, 2007, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to comply with their request, as described in paragraph 3, above.

 

6.        Section 1-200(5), G.S., provides, in relevant part:

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

7.   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…or (3) receive a copy of such records in accordance with section 1-212.    

 

8.  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.”

 

9.  It is found that the requested record is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.  The respondents first contend that §1-17a, G.S., provides a basis to withhold the requested record.  It provides in pertinent part: 

 

(b) No state agency may disclose to the public an individual’s photograph or computerized image in connection with the issuance of an identification card or other document by such state agency, unless such individual has provided his or her express consent for such disclosure….

 

11.  It is found that the respondents are not state agencies.  It is concluded that, by its terms, §1-17a, G.S., does not apply to the respondents, and does not provide a basis to withhold the requested record from the complainants in this matter. 

 

12.  At the hearing in this matter and on brief, the respondents contended that the case of Gifford v. Freedom of Information Commission, 227 Conn. 641, 665-666 (1993), controls in this matter. 

 

13.  In Gifford, the Court concluded that disclosure of arrest reports was not required during a pending criminal prosecution.  Such decision was predicated upon the definition of “record of arrest,” as well as on the disclosure provisions related to records of arrest, which were set forth at that time in the FOI Act. 

 

14.  The Commission notes that, subsequently, the Legislature amended both the definition of record of arrest and the disclosure provisions related thereto, as set forth in the FOI Act.  Specifically, §1-215, G.S., now provides in relevant part that:

 

(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 . . . 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 . . .

 

(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. 

 

15.  The respondents contend that, since the Legislature did not specify mug shots when it changed the definition of  “record of arrest,” it follows that the disclosure provisions related to records of arrest do not apply to the mug shot at issue herein.  The respondents then further contend that the Legislature’s action in not including mug shots within the definition of “record of arrest” implies a legislative intent to keep to an absolute minimum what is required to be disclosed related to an arrest. 

 

16.  The Commission takes administrative notice of the fact that the term “arrest report” is ordinarily synonymous with the term “incident report;” and that an arrest report contains written biographical information and written information concerning the factual circumstances of an arrest. 

 

17.  It is found that the respondents failed to prove that a mug shot is, or is part of, an arrest report.  See, e.g., Hopkins v. O’Connor, 282 Conn. 821, 841 (2007); Demers v. State of Connecticut, 209 Conn. 143, 149 (1998); State v. Clinkscales, 21 Conn. App. 411, 418 (1990).

18.   It is concluded that the Gifford case does not control in this matter, as the respondents contend.  It is further concluded that §1-215, G.S., does not control in this matter.     

 

19.  The respondents also contend that the requested record is exempt from mandatory disclosure pursuant to §1-210(b)(3), G.S.

 

20.   Section 1-210(b)(3), G.S., provides in relevant part that nothing in the FOI Act shall be construed to 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (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, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

21.  At the hearing in this matter, the respondent chief testified that he had made a determination that disclosure of the requested record would not be in the public interest, within the meaning of §1-210(b)(3), G.S.  However, proof of exemption under such provision requires more than such a determination. 

 

22.  It is found that the requested record was compiled in connection with the detection or investigation of crime.  However, it is found that the respondents failed to prove that disclosure of such record would result in the disclosure of any of the records set forth in  §§1-210(b)(3)(A), (B), (C), (D), (E), (F), or (G), G.S.

 

23.  It is concluded that §1-210(b)(3), G.S., does not exempt the requested record from mandatory disclosure.  

 

            24.  The respondents also contend that §§29-12 and 29-15, G.S., imply that the Legislature did not intend for mug shots related to arrests with pending criminal prosecutions to be released to the public.

 

25.    Section 29-12, G.S., provides:

 

All persons arrested for crime as described in section 29-11 shall submit to the taking of their fingerprints and physical description and all constables and chiefs of police of organized police departments and the commanding officers of state police stations shall immediately furnish to the State Police Bureau of Identification two copies of a standard identification card on which shall be imprinted fingerprints of each person so arrested, together with the physical description of, and such information as said bureau may require with respect to, such arrested person.  All wardens of correctional institutions and the Community Correctional Center Administrator shall furnish to the State Police Bureau of Identification such information with respect to prisoners as said bureau requires.  The Commissioner of Public Safety may adopt regulations for the submission to and the taking of fingerprints as required under this section which will promote efficiency and be consistent with advances in automation and technology. 

 

26.   Section 29-15, G.S., provides:

 

(a)  On or after October 1, 1974, when any person, having no record of prior criminal conviction, whose fingerprints and pictures are so filed has been found not guilty of the offense charged, or has had such charge dismissed or nolled, his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, shall, be returned to him not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle. 

 

(b) Any person having no record of prior criminal conviction whose fingerprints and pictures so filed, who has been found not guilty of the offense charged or has had such charge dismissed or nolled prior to October 1, 1974, may, upon application to the person charged with retention and control of such identification data at the State Police Bureau of Identification, have his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, returned to him not later than sixty days after the filing of such application provided in the case of a nolle, such nolle shall have occurred thirteen months prior to filing of such application. 

 

27.  It is concluded that §§29-12 and 29-15, G.S., neither by express language or by implication, exempts the mug shot at issue in this matter from mandatory disclosure. 

 

28.  Section 29-12, G.S., requires that the respondents take the fingerprints and physical descriptions of arrested persons.  In addition, § 29-15, G.S., requires that the respondents return the fingerprints, photographs, and other identification data to arrested persons where charges have been dismissed or nolled, or where there has been a finding of not guilty, in certain circumstances.  Nothing in the record of this matter suggests that the charges against Mr. Surdyka have been dismissed or nolled, or that there has been a finding of not guilty. 

 

29.  It is concluded that the requested record is not exempt from mandatory disclosure by virtue of  §§29-12 and 29-15, G.S.  It is further concluded that the respondents violated the FOI Act, as alleged in the complaint.

 

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

 

1.  Forthwith, the respondents shall provide the complainants with a copy of the requested record, free of charge. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 27, 2008.

 

 

____________________________

S. Wilson

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:

 

Alexander Wood, Kym Soper and

the Manchester Journal Inquirer

306 Progress Drive

P.O. Box 510

Manchester, CT 06045-0510

 

Chief, Police Department,

Town of Vernon; and Police

Department, Town of Vernon

c/o Elizabeth C. Foran, Esq.

Boyan, Balskus & Foran

62 Hyde Avenue

Vernon, CT 06066

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-584FD/sw/9/3/2008