FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 14, 2008, at which time the complainant 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 May 8, 2008, the complainant made a written request for

“personal access to the case file and then personally selected copies of documents regarding the homicide of Barbara Gibbons on September 28, 1973 in the town of Canaan, Connecticut, case number B-73-1442-C.”

3.   It is found that on May 11, 2008, the complainant made an additional written request for

a.  “Copies of documents that allowed one Peter Reilly and others access to criminal case file B-73-1442-C;”

b.   “Copies of records that reflect the dates said persons and any other person had access to said file under the provisions of Freedom of Information laws… [including] any record that indicates what files they saw and what copies they received, including dates;” and

c.   “Copies of legal documents pertaining to case #B-73-1442-C resulting from requests by persons unknown to me requesting copies of documents under the Freedom of Information law.”

4.   It is found that on May 15, 2008, the respondents sent the complainant a letter in which they acknowledged receipt of his request for copies of records.

5.   It is found that on June 9, 2008, the respondents informed the complainant by letter that §§54-142a  and 54-57e [sic], G.S., prohibited disclosure of most of the records he requested, described in paragraphs 2 and 3, above.  It is further found that the respondents provided to the complainant “a small portion of the report, consisting primarily of reports since 2000 concerning forensic testing of certain pieces of physical evidence.”

6.   By letter dated June 15, 2008 and filed June 19, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by refusing to disclose to him the records he requested, described in paragraphs 2 and 3, above. 

7.   Section 1-200(5), G.S., defines “public records or files” as:

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

[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. 

 

9.   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 . . . .”

 

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

11.   Section 54-47e, G.S., provides:  

 

Any order authorizing the investigation into the commission of a crime or crimes and any application filed with the panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed. The panel shall submit to the Chief Court Administrator a summary of the scope of the investigation, any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard and the finding and record of the investigation are to be filed. Such summary shall be public unless the panel determines, by majority vote, that such summary be sealed for purposes of (1) ensuring the public safety of any individual, (2) ensuring that the investigation would not be adversely affected or (3) complying with other provisions of the general statutes or rules of court which prohibit disclosure of such information. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.

 

12.   With respect to whether §54-47e, G.S., applies to the complainant’s request for records, described in paragraphs 2 and 3, above, it is found that the complainant stated in his appeal to this Commission that he does not seek access to records of Grand Jury investigations.

 

13.  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….

 

14.  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….[Any] person charged with the retention and control of such records … shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records…

15.  It is found that the records requested by the complainant, described in paragraph 2, above, have not been physically destroyed and are retained by the respondents.

16.   It is found that the complainant is neither the accused, within the meaning of §54-142a(a), nor the subject of the records, within the meaning of §54-142a(e), G.S.

17.   It is found that all criminal charges against the accused were dismissed with prejudice over 30 years ago.

18.   It is concluded that the police and criminal records pertaining to such charges against the accused are deemed to be erased, within the meaning of §54-142a, G.S.

19.   It is concluded that the phrase “pertaining to such charge,” as it is used in the Erasure Act, §54-142a, G.S., refers, at least, to records that link the accused, directly or indirectly, to the underlying crime.  State v. Anonymous, 237 Conn. 501 (1996) (purpose of erasure scheme is to protect privacy of those whose criminal charges have been dismissed); State v. West, 192 Conn. 488, 496 (1984).

20. It is concluded, therefore, that the respondents did not violate §1-210(a), G.S., when they failed to provide copies of erased records that pertained solely to the dismissed charges against the subject of the record, pursuant to §54-142a(e), G.S.

21.  With respect to whether the Erasure Act applies to records that do not directly or indirectly link the accused to the underlying crime, “It is a fundamental principle of statutory construction that courts must interpret statutes using common sense and assume that the legislature intended a reasonable and rational result.” Longley v. State Emples. Ret. Comm'n, 284 Conn. 149, 172 (2007); Hartford Courant Co. v. FOI Commission, 261 Conn. 86, 101 (2002).

22.  It would strain common sense that the entry of a dismissal or nolle prosequi against one person charged with a crime would require the erasure or destruction of all police records documenting the commission of such crime.  Such an interpretation of the Erasure Act would make it impossible to prosecute that crime against individuals other than the accused in the future.  Such an interpretation would also contravene the public policy behind §54-203(a)(2), G.S., for example, which gives alleged victims of crime the right to request records and data from any law enforcement agency to determine whether the victim was, in fact, a victim of a crime and entitled to compensation from the Criminal Injuries Compensation Fund.  “The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation.”  Longley, supra, at 173.

23.  It is also noted that exemptions to the FOI Act are to be narrowly construed.  Ottochian v. FOI Commission, 221 Conn. 393 (1992).

24.   Accordingly, it is concluded that the Erasure Act does not operate to erase all public records of the underlying crime.  “Our courts have held that the term ‘records’ in the Erasure Act does not include evidence obtained by the police in the course of an investigation[.]” Boyles v. Preston, 68 Conn. App. 596, 610 (2002), cert. denied,  261 Conn. 901 (2002)  (holding that videotape of the plaintiff is not a police or court record subject to erasure pursuant to §54-142a); State v. West, 192 Conn. 488, 496-97 (1984); Rado v. Board of Education, 216 Conn. 541, 550-52 (1990). 

25.  The complainant contends that some of the records he requested, described in paragraph 2, above, are not subject to erasure, because such records neither directly nor indirectly link the accused to the underlying crime.  For instance, the complainant requests access to “photographs, maps, charts, lab reports, [and] medical examiner reports.” 

26.  It is concluded that, to the extent that they exist, records that do not directly or indirectly link the accused to the underlying crime are not erased by the operation of §54-142a, G.S.

27.  It is concluded, therefore, that the respondents violated §§1-210(a) and 1-212(a), G.S., when they denied the complainant’s request for access to copies of records that do not directly or indirectly link the accused to the underlying crime.

28.   This Commission observes that §54-142a (e), G.S., permits disclosure of erased records to “the subject of the record.” 

29.   It is found that “subject of the record” with respect to the complainant’s request, described in paragraph 2, above, previously publicly identified himself as Peter Reilly.

30.  It is found that, based on evidence submitted in this matter, on February 19, 2004, Peter Reilly executed an affidavit concerning access to all of the respondents’ records relating to the investigation and prosecution of the criminal charges against him.  It is found that Reilly averred,

I have no objection to the disclosure of any records about me, whether in the Barbara Gibbons file, or in any other file held by the State of Connecticut…  I do not claim any right to privacy, anonymity or confidentiality with respect to any such records, whether in any court filed, or in the records of any law enforcement agencies, including the Department of Public Safety, the Litchfield State’s Attorney’s office or the Chief State’s Attorney’s office.  I hereby request that any such agencies make available under the Freedom of Information Act any such records, irrespective of whether my name or arrest records are included.

Reilly continued, “It is my wish and desire that any and all records concerning this murder, including all charges against me, be made part of the public record and available to inspection by the media and the public.”

31.   It is found, however, that despite Reilly’s stated desire to waive his privacy rights and to make all records concerning the murder available for public access, the erasure statutes have been interpreted by the Supreme Court to mean that the blanket prohibition against disclosure may not be waived by the subject of the record, except in limited circumstances specified by statute that do not apply to the facts of this case.  Lechner v. Holmberg, 165 Conn. 152, 161-62 (1973); State v. Anonymous, supra, at 517.

 

32.   It is found that, based on evidence submitted in this matter, on April 6, 2005, the respondents agreed in writing to disclose the requested records, described in paragraph 2, above, to “Peter Reilly and/or his designated representatives.” 

33.   It is also found that, from the evidence submitted in this matter, the respondents provided access to the investigative file, described in paragraph 2, above, to Peter Reilly and/or his designated representatives subsequent to April 6, 2005. 

34.  It is found that Peter Reilly, as the subject of the records, within the meaning of §54-142a (e), G.S., is the only person who has the right to inspect or obtain copies of such records requested by the complainant, described in paragraph 2, above, that pertain to the dismissed charges against Peter Reilly.  It is found that Peter Reilly also has the right to designate a representative to inspect or obtain copies of such records.  In light of paragraphs 29 through 33, above, this Commission suggests that the complainant request permission from Peter Reilly to inspect and/or copy the records. 

35.   With respect to the complainant’s request for copies of records, described in paragraph 3.a, above, that gave permission to Peter Reilly and others to access to criminal case file B-73-1442-C, it is found that the complainant received records responsive to his request from the respondents and from a separate request for records to this Commission.

 

36.  With respect to the complainant’s request for copies of records, described in paragraphs 3.b and 3.c, above, concerning access to such records by people other than Peter Reilly and/or his designated representatives, it is found that the complainant’s reference to the provisions of Freedom of Information laws in such paragraphs more precisely refers to the Agreement executed between the FOI Commission and the respondents on April 6, 2005.  It is found that the parties entered such agreement to resolve an administrative appeal of the Final Decision in two consolidated FOI Commission decisions: Donald S. Connery v. State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 2003-313, and Ruth Epstein and The Lakeville Journal Company, LLC v. State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 2003-320.

 

37.  It is found that the respondents’ witness stated that he did not believe the respondents maintained a record containing who, if anyone, has had access to the records described generally as criminal case file B-73-1442-C. It is further found that the witness agreed at the hearing in this matter to undertake a search to determine with a reasonable degree of certainty whether the respondents maintain a record of who has had access to the file; and, if so, what files they viewed and what copies they received, including dates.

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

 

1.  The respondents shall forthwith provide to the complainant, free of charge, copies of records of the homicide of Barbara Gibbons on September 28, 1973 in the town of Canaan, Connecticut, case number B-73-1442-C, subject to the following exception:  the respondents shall redact from such records all references that directly or indirectly link Peter Reilly to the underlying crime. 

2.  The respondents shall forthwith undertake a diligent search to determine whether they maintain any records responsive to the complainant’s request for records described in paragraphs 3.b, 3.c, and 37 of the findings, above.  If such records are located, the respondents shall promptly provide copies of such records to the complainant, free of charge.

 

 

                       

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 2009.

 

 

____________________________

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:

 

Thomas J. McDonnell

108 Spring Lake Court

Vero Beach, FL 32962

and

Thomas J. McDonnell

19 Pilgrim Lane

Eastham, MA 02642

 

Commissioner, State of Connecticut,

Department of Public Safety; and

State of Connecticut,

Department of Public Safety

c/o Assistant Attorney General

Stephen R. Sarnoski

110 Sherman Street

Hartford, CT 06105

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-416FD/sw/2/3/2009