FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 30, 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, by letter dated January 2, 2008, the complainant made his initial request for records from the respondents, in which he sought a copy of the following records related to a July 27 and July 28, 2007 road block: 

 

a)      Name and address of each person arrested;

b)      The approximate time of arrest;

c)      The offense charged; and

d)     Any other information specific to these arrests that might be contained in reports, notes, or other records.

 

3.  It is found that, by letter dated February 17, 2008, the complainant again requested a copy of the records described in paragraph 2, above.  It is further found that the complainant requested a copy of the following additional records:

 

a)      State police policy, guidelines, and procedures related to holding a citizen in custody without reason;

b)      State police policy, guidelines, and procedures related to holding a citizen in custody once it has been determined he/she has not violated any law; and

c)      All documents, reports, records, and statistical information, available on breath test results of persons who were arrested and processed by the BAT mobile.

 

4.  It is found that, by letter dated February 29, 2008, the respondents acknowledged the complainant’s requests dated January 2, 2008 and February 17, 2008.  It is further found that the respondents provided the complainant with two records responsive to the complainant’s request for copies of the respondents’ policies. 

 

5.  It is further found that, by way of the February 29, 2008 letter, the respondents informed the complainant that there were two additional pages responsive to the complainant’s request for records pertaining to arrests made on July 27, 2007.  The respondents claimed that one of these pages contained information that was exempt from disclosure pursuant to the state’s erasure statutes.  The respondents claimed that the other page was exempt because the arrest to which the record pertained involved a matter currently pending in criminal court. 

 

6.  It is found that, by letter dated March 22, 2008, the complainant requested that the respondents provide him with a copy of the following records: 

 

a)      All records related to the July 27, 2007 road block;

b)      If any records generated were standard forms, then copies of a blank form for each record type;

c)      Specifically, if the records you are refusing in your February 29^th letter are generated with standard forms send a copy of the blank form/s indicating that these are the forms used to generate the records that you are refusing; and

d)     Copies of all policies, procedures, and instructions related to creating these records and processing them.

 

7.  It is found that, by letter dated March 31, 2008, the respondents acknowledged the complainant’s March 22, 2008 request for records.

 

8.  It is found that, by letter dated April 21, 2008, the respondents provided the complainant with a copy of a blank standard form.  It is further found that, by letter dated May 20, 2008, the respondents provided the complainant a copy of an additional blank standard form.

 

 9.  By letter dated June 3, 2008 and filed June 18, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his requests for records. 

 

10. 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.

 

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

 

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

 

12. Section 1-212(a)(1), G.S., provides in relevant part that:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

            13. At the hearing on this matter the complainant testified that the matters at issue in this case are 1) that the respondents’ failed to respond timely to his requests for records; 2) that the respondents have withheld a videotape that is responsive to the complainant’s request for records; and 3) that the respondents improperly withheld the two records identified in paragraph 5, above. 

 

14. It is found that the complainant’s requests for records described in paragraphs 2, 3, and 6, above, are a series of communications initiated by the complainant to obtain copies of public records that are interrelated and pertain to the same matters.  It is therefore concluded that the Commission has jurisdiction over all of the complainant’s requests. 

 

15. Based on the testimony of the parties, it is found that the respondents did not realize that the complainant desired to obtain a copy of the videotape referred to in paragraph 13, above.  It is further found that, prior to the hearing in this case, the respondents agreed to provide the complainant with a copy of this videotape.  It is therefore concluded that the videotape is no longer at issue in this case. 

 

16. It is found that the two records identified in paragraph 5, above, are two processing forms that pertain to arrests made by the Naugatuck Police Department on July 27, 2008.  It is further found that the processing forms are responsive to the complainant’s requests for records and were created by the respondents on or about July 27, 2008.    

 

17. It is found that the respondents provided the complainant with one of the processing forms identified in paragraph 16, above, in redacted form.  It is found that the information that the respondents redacted from this record is the name of the individual arrested on July 27, 2007.   

 

18. At the hearing on this matter, the respondents contended that the name they withheld is permissibly exempt from disclosure pursuant to the state’s erasure statutes.

 

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

 

(c) [w]henever any charge in a criminal case has been nolled in the Superior Court, or in the 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.

 

20.  Section 54-142c, G.S., provides in relevant part that:

 

(a) [t]he clerk of court or any person charged with retention and control of erased records . . . or any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased records or information pertaining to any charge erased under any provision of this part, except as otherwise provided in this chapter.

(b) [n]otwithstanding any other provision of this chapter, within two years from the date of disposition of any case, the clerk of the court or any person charged with the retention and control of erased records . . . or any criminal justice agency having information contained in such erased records may disclose to the victim of a crime or the victim’s legal representative the fact that the case was dismissed. . . .

 

 21. For purposes of §54-142c, G.S., a “criminal justice agency” is defined as including “any . . . government agency created by statute which is authorized by law and engages, in fact, as it principal function in activities constituting the administration of criminal justice.”

 

22. It is found that the Department of Public Safety is a criminal justice agency for purposes of §54-142c, G.S.

 

23. It is further found that the charges described in the record at issue were nolled and more than thirteen months have elapsed since the time of such nolle. 

 

24. It is therefore found that, pursuant to the provisions of §§54-142a and 54-142(c), G.S., the redacted information is exempt from disclosure at this time. 

 

25.  However, it is found that at the time of the complainant’s January 2, 2008 request, February 17, 2008 request, and March 22, 2008 request, and the respondents’ denials of such requests, thirteen months had not elapsed since the entry of the nolle, and, as such, the requested record was not exempt from disclosure at such times.

 

26.  It is therefore concluded that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to disclose an unredacted copy of the processing form referenced in paragraph 16, above, when such record was requested and when such record was not subject to the erasure provisions of §§54-142a and 54-142(c), G.S. 

 

27. With regard to the other record at issue in this case, the respondents claim that this record is exempt from disclosure because the arrest to which the record pertains involved a matter which was pending in criminal court at the time of the complainant’s request.  The respondents further claim that because the matter was pending in criminal court, they could not disclose the record at issue to the complainant without the permission of the State’s Attorney’s Office.

 

28. Section 1-210(b)(3)(C), 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. . . (C) information to be used in a prospective law enforcement action. . . .

 

29. The respondent’s burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 1004-05 (1998). 

 

 

30. It is found that at the time of the complainant’s requests for this particular record and at the time of the respondents’ denials of said requests, a criminal prosecution concerning the arrest described in the record was taking place. 

 

31.  It is found, however, that the respondents failed to prove that the requested record contained information that was used in the law enforcement action, and how the disclosure of the record would have been prejudicial to such action. 

 

32.  It is found that, as of the time of the hearing in this case, the criminal prosecution had concluded.  It is further found that prior to the start of the hearing in this case the respondents provided the complainant with an unredacted copy of the record described in paragraph 27, above.

 

33.  Accordingly, it is concluded that the record described in paragraph 27, above, is not exempt from mandatory disclosure by virtue of §1-210(b)(3)(C), G.S., and 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 record promptly.

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

1.  Henceforth, the respondents shall strictly comply with the promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

2.  Furthermore, the respondents shall strictly comply with the disclosure provisions of the FOI Act by not withholding records that are not yet subject to the erasure provisions of §§54-142a and 54-142(c), G.S.

 

3.  Furthermore, the respondents shall strictly comply with the requirements of §1-210(b)(3)(C), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 11, 2009.

 

 

____________________________

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:

 

James Torlai

127 Barton Street

Torrington, CT 06790

 

Commissioner, State of Connecticut,

Department of Public Safety; and

State of Connecticut, Department

of Public Safety

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

 

 

FIC/2008-409FD/paj/2/18/2009