FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 30, 2010, 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 provided to the respondents in person shortly before April 13, 2010, the complainant made a request for records, in which he sought a copy of a police report pertaining to a criminal ticket that he received from the respondent police department (the “case report”) for breach of peace. 

 

3.  It is found that, by letter dated April 13, 2010, the respondents denied the complainant’s request for records, indicating that the case report that the complainant had requested was not eligible for disclosure because the matter continued to be “pending before court.”

4.  By letter dated and filed April 29, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for records. 

5.  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.

 

6.  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.

7. Section 1-212(a), 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.

 

8.  It is found that the respondents maintain the documents described in paragraph 2, above, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S., and that copies of such records must be provided in accordance with §§1-210(a) and 1-212(a), G.S., unless the records, or portions of the records, are exempt from disclosure. 

 

9.  At the hearing on this matter, the respondents contended that the records were confidential pursuant to §1-215, G.S, because the criminal matter to which the records pertained was “pending.” 

 

10. Section 1-215, G.S., provides as follows:

 

 (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, 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.  Any personal possessions or effects found on a person at the time of such person's arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested. (Emphasis supplied.)

 

(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.

 

11. It is found that the respondents have a general policy that, while a criminal case is pending in court, the only records that they will disclose are an arrest and booking sheet, which includes a defendant’s name, address, time and date of arrest, and the criminal charges.  It is found that the respondents implemented this policy on the advice of the town’s attorney.  Based on the testimony of the respondents, it is found that this policy applies to an individual whose case is pending in criminal court, as well as to a member of the general public who makes a records request for a case report that is pending in criminal court. 

 

12. It is the respondents’ position that, other than the pieces of information required to be disclosed pursuant to §1-215(b), G.S., they are not required to disclose any other records having to do with or relating in any way to the arrest of an individual while the case against such individual is pending in a criminal court. 

 

13. In this case, it is found that the respondents provided the complainant with an arrest and booking sheet that contained the complainant’s name, date of birth, and the charge.  It is further found that the respondents offered the complainant a copy of the ticket he received for the breach of peace charge, which the complainant already had. 

 

14. It is the respondents’ position that, because they disclosed the records outlined in §1-215(b), G.S., they have no additional FOI obligations to disclose other records related to a criminal arrest or criminal citation, such as the case report at issue in this matter. 

 

15. When construing statutes, the courts’ and administrative tribunals’ fundamental objective “is to ascertain and give effect to the apparent intent of the legislature.”  State v. Patterson, 276 Conn. 452, 478, 886 A.2d 777 (2005).  “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to the existing legislation and common law principles governing the same general subject matter.”  Id. at 478-79 (quoting State v. Kirk R., 271 Conn. 499, 510, 857 A.2d 908 (2004)). 

 

16. Pursuant to §1-2z, G.S., “the meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratexual evidence of the meaning of the statute shall not be considered.” 

 

17. “It is also a general principle of statutory interpretation that every word [in a statute] has meaning regardless of the type of statute.” State v. Brown, Jr., 49 Conn. Supp. 168, 865 A.2d 510 (Conn. Super. Ct. Nov. 2, 2004).  In other words, “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase. . . [so that] no word [or phrase] in a statute is to be treated as superfluous.”  (Internal quotation marks omitted).  State v. Peeler, 271 Conn. 338, 434-35, 857 A.2d 808 (2004); see also State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996) (“It is, however, equally understood that despite the nature of the statute, it must be construed, if possible, such that no clause, sentence or word shall be superfluous, void, or insignificant. . . .”)

 

18. It is concluded that the language in §1-215, G.S., is clear and unambiguous. 

 

19. It is further concluded that the interpretation of §1-215(b), G.S., advanced by the respondents would render the obligations and the instructions set forth in §1-215(a), G.S., nugatory, in contravention of the general principle of statutory construction set forth in paragraph 17, above. See State v. Nelson, 126 Conn. 412, 416, 11 A.2d 865 (1940) (“Courts may not by construction supply omissions in a statute, or add exceptions because it appears to them that good reasons exist for adding them.”).  Specifically, it is concluded that the respondents’ interpretation of their disclosure obligations set forth in §1-215(b), G.S., would eviscerate the clear direction in §1-215(a), G.S., which is that the disclosure of law enforcement records must be decided in light of the permissive exemptions set forth in §1-210(b)(3), G.S. (“disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of [§1-215, G.S.] shall be subject to the provision of subdivision (3) of subsection (b) of section 1-210”) (emphasis supplied).

 

20. It is further concluded that §1-215, G.S., does not exempt records from public disclosure under the FOI Act, but rather mandates that, at a minimum, certain information about arrests must be disclosed.  In instances where an agency seeks to withhold records not mandated to be disclosed pursuant to §1-215, G.S., such public agency must prove that an exemption applies to such other records.

 

21. The respondents argue that Gifford v. FOIC, 227 Conn. 641 (1993) controls in this case and allows them to keep the case report, in its entirety, confidential while the underlying criminal matter involving the complainant is pending.

 

22. In Gifford, our Supreme Court addressed the statutory relationship between §1-19(b)(3), G.S., (now §1-210(b)(3), G.S.), and §1-20b, G.S., (now §1-215, G.S.), for the first time and concluded, in a three-to-two decision, that §1-20b, G.S., had broader application than the Commission and the lower courts believed.  However, in an apparent reaction to the Gifford decision, the General Assembly in the session immediately following Gifford, amended §1-20b, G.S., to require a larger amount of information to be produced from the time of an individual’s arrest, and made all records other than the “record of arrest,” as such term of art is defined in §1-215(b), G.S., expressly subject to §1-210(b)(3), G.S.  See 1994 Conn. Pub. Acts 94-246, §13.  The issue concerning the relationship between §1-210(b)(3), G.S., and §1-215, G.S., in light of the General Assembly’s post Gifford amendments to the FOI Act is currently on appeal before the Connecticut Appellate Court.  See Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al., 2010 Conn. Super. LEXIS 1001 (Conn. Super. Ct. Apr. 21, 2010), appeal docketed, No. 32246 (Conn. App. Ct. May 11, 2010). 

 

23. Based on the foregoing, it is found that the requested records, identified in paragraph 2, above, are not exempt from mandatory disclosure pursuant to §1-215(b), G.S.

 

24. The respondents also contend that the records at issue are exempt from disclosure pursuant to §§1-210(b)(3)(A), 1-210(b)(3)(B), and 1-210(b)(3)(C), G.S.

 

25. Section 1-210(b)(3), G.S., provides in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require 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, [and] (C) information to be used in a prospective law enforcement action if prejudicial to such action. . . .

 

26. At the hearing, in response to questions concerning an exemption to disclosure pursuant to §1-210(b)(3)(A), G.S., the respondents’ witness, Kathleen S. Blackmore testified as follows: 

 

[Hearing Officer]:  So there are names of informants in those records that are not otherwise known and you feel that their safety could be endangered?  Is that your testimony?

[Witness]: My testimony would be that that was not the reason that I refused this record. Certainly, if it were necessary for me to deliver this record, I would redact information. 

27. By order of the hearing officer, and without objection by the parties, the respondents agreed to submit a post-hearing affidavit in support of their claims of exemption pursuant to §1-210(b)(3), G.S. 

 

28. On September 12, 2010, the respondents submitted the affidavit of Ms. Blackmore; the affidavit of Ryan P. Barry, the Town Attorney; and a memorandum from Adam B. Scott, Supervisory Assistant State’s Attorney, to Attorney Barry.  As regards the memorandum, it is noted that this submission does not comply with the order of the hearing officer concerning the filing of a post-hearing affidavit.  Accordingly, the memorandum cannot be considered as “evidence” properly submitted in this case. 

 

29. In her affidavit, Ms. Blackmore avers as follows:  “I believe that this report contains information and names of individuals the release of which could endanger the safety of certain individuals or subject them to threats or intimidation and may be prejudicial to the prosecution of Mr. Jameson.” 

 

30. It is found that the averments in the witnesses’ affidavit stand in stark contrast to the testimony she provided at the contested case hearing just two weeks earlier.  Cf. 26 and 29, above.  While such an inconsistency does not render this evidence inadmissible, it does bear on the overall determination of how much weight the evidence should be accorded.   See DiPietro, et al. v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 617 (2010) (stating that “[t]o the extent that the trial court disregarded [the witness’] affidavit because it was merely inconsistent with his deposition testimony, we conclude that that is an insufficient reason for a trial court to disregard it entirely.  The usual legal remedy for inconsistent statements by a witness is for the adversary to point them out for purposes of impeaching the witness’ credibility. . . .”).  “[T]he credibility of witnesses and the determination of factual issues are [still] matters within the province of the administrative agency.”  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). 

 

31. It is found that the crux of Ms. Blackmore’s testimony at the contested case hearing—to wit, that the respondents’ refusal to provide the complainant a copy of his criminal case report was not personal to the complainant, but was, in fact, the respondents’ policy for all requesters while a case is pending in criminal court, is credible.  It is found that this testimony, however, has no bearing on the exemptions raised under §1-210(b)(3), G.S.

32. On February 15, 2011, the hearing officer issued an order for the respondents to submit the records at issue to the Commission for an in camera inspection.  The order further provided that the respondents should “indicate in the in camera records, using a yellow highlighter, the portions of the records that are claimed exempt from disclosure.” 

 

33. The respondents timely submitted the records for an in camera inspection.  However, in the index submitted with the in camera records the respondents noted the following:  “Nothing is highlighted in the report since it is the position of the Town of Manchester that the entire report is exempt under 1-210(b)(3) and 1-215.”  

 

34. The in camera records submitted consist of one three-page report.  Such in camera records shall be identified at IC-2010-277-01 through IC-2010-277-03.

 

35. It is found that there are no signed witness statements in the records at issue in this case.  It is found therefore that the respondents have failed to prove the records at issue are exempt pursuant to §1-210(b)(3)(B), G.S.

 

36. It is further found that the respondents failed to satisfy the requirements of §1-210(b)(3)(C), G.S., because the respondents failed to present evidence that substantiates how the disclosure of the case report would be prejudicial to the prosecution of the breach of peace citation. 

 

37. With regard to Attorney Barry’s affidavit, it is found that the majority of the averments in this affidavit go to the exemption that the respondents have claimed under §1-215(b), G.S., and not §1-210(b)(3), G.S.  See ¶ 8 of Barry Affidavit (stating “my opinion is that it is in the public’s interest for the State’s Attorney’s Office to disclose to Mr. Jameson the Crime/Incident Report, witness statements and any other sensitive information in the file, when the State’s Attorney’s Office deems it appropriate”). 

 

38. Based on Attorney Barry’s affidavit, however, it is found that there are witnesses involved in the underlying criminal matter who have expressed to the prosecutor’s office that they feel the complainant could be a continuing threat to them.

 

39. It is found that these witnesses are mentioned by name in the in camera records.  It is further found that these witnesses’ addresses and telephone numbers are also listed in the in camera records. 

 

40. It is found that these witnesses’ names, addresses and telephone numbers were compiled in connection with the detection or investigation of crime, pursuant to §1-210(b)(3), G.S.

 

41. It is found that the disclosure of the witnesses’ names, addresses, and telephone numbers could lead to contact between the complainant and the witnesses.  It is further found that, in the opinion of the respondents’ attorney, these witnesses have expressed concerns with being contacted and, perhaps, harassed by the complainant. 

 

42. It is therefore found that disclosure of the witnesses’ names, addresses and telephone numbers is not in the public interest because such information would result in the disclosure of identities of informants not otherwise known who would be subject to threat or intimidation if their identifies were made known, pursuant to §1-210(b)(3)(A), G.S.

 

43. Accordingly, it is concluded that the witnesses’ names, addresses and telephone numbers are exempt from mandatory disclosure pursuant to §1-210(b)(3)(A), G.S.  It is further concluded that the respondents did not violate the FOI Act by withholding the witnesses’ names, addresses and telephone numbers from the complainant.

 

44. It is found however that, other than these witnesses’ names, addresses and telephone numbers, the requested records identified in paragraph 2, above, are not exempt from mandatory disclosure pursuant to §1-210(b)(3), G.S.

 

45. Based on the foregoing, it is concluded that, other than the information specifically identified in paragraph 43, above, the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the requested records.

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 a copy of the requested records, except for those portions of the in camera records specifically identified in paragraph 43 of the findings, above.  Consistent with Commission precedent, the respondents may also redact from the in camera records the complainant’s social security number.

 

2.  Enforcement of paragraph 1 of this order is stayed until the resolution of the appeal in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al., 2010 Conn. Super. LEXIS 1001 (Conn. Super. Ct. Apr. 21, 2010), appeal docketed, No. 32246 (Conn. App. Ct. May 11, 2010). 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Mike Jameson

P.O. Box 11563

Manchester, CT  06045

 

Chief, Police Department, Town of Manchester; and

Police Department, Town of Manchester

c/o Timothy P. O’Neil, Esq.

Manchester Corporation Counsel

41 Center Street

P.O. Box 191

Manchester, CT  06040

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-277/FD/cac/3/29/2011