FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 16, 2011, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC2010-355;  James Torlai v. Commissioner, State of Connecticut, Department of Public Safety, Legal Affairs Unit; and State of Connecticut, Department of Public Safety, Legal Affairs Unit.     

           

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 June 1, 2010, the complainant requested records relating to DUI arrests made by the State Police Troop A for the month of May 2010.  Specifically, the complainant requested:  the name and address of each person arrested, the time of the arrest, and the offense charged.  For cases where a blood alcohol test was performed, the complainant requested copies of the test results and copies of A-44 forms prepared for the Department of Motor Vehicles.   

 

3.  It is found that, by memorandum dated June 10, 2010, the respondents acknowledged the request described in paragraph 2, above. 

 

            4.  It is found that, under cover letter dated June 24, 2010, the respondents provided the complainant with twenty-seven pages of requested records.  With respect to pending arrests, the respondents withheld records other than name and address of persons arrested, dates and times of arrests and offenses charged, relying on §1-215, G.S.   The respondents informed the complainant that all information related to erased incidents would be withheld pursuant to §54-142a, G.S.

 

5.  It is found that, by letter dated July 1, 2010, to the respondents, the complainant requested any records that might have been withheld pursuant to §1-215, G.S.   

 

6.  By letter dated July 15, 2010, and filed July 21, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request for records described in paragraph 2, 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, 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.

 

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 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 respondents maintain records 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 thereof, are exempt from disclosure.

 

11.  It is found that, by letter dated August 26, 2010, the respondents informed the complainant that no additional records would be provided to him. 

 

12.   With regard to the criminal cases the respondents deem “pending,” the respondents claim that the records sought by the complainant are exempt from disclosure pursuant to §1-215, G.S. 

 

13.   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.

 

14.  It is the respondents’ position that, other than the pieces of information required to be disclosed pursuant to §1-215, 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 criminal court.

 

            15.  The respondents contend that the Superior Court decision in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, HHB-CV-09-4020071 (N.B. Superior Court, April 21, 2010), Cohn, J. (“Commissioner”) controls.   In Commissioner, the court reversed the Commission’s decision in Docket #FIC2008-312, and held that §1-215, G.S., operates to exempt certain arrest records.  However, the judgment sustaining that administrative appeal itself has been appealed by this Commission to the Appellate Court.  Therefore, pending the final resolution by the Appellate Court or the Supreme Court, the Commission maintains that its decision in Commissioner is correct.

 

            16.  The following analysis sets forth the Commission’s position:

 

a.  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)). 

 

b.  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.” 

 

c.  “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. . . .”).

 

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

 

e.  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 16.c., 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., 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).

 

f.  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.

 

17.  Accordingly, it is concluded that the records identified in paragraph 2, above, related to cases deemed “pending” by the respondents, are not exempt from mandatory disclosure by virtue of §1-215, G.S. 

 

18.  It is therefore concluded that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with copies of the records that were withheld pursuant to §1-215, G.S.

 

19.  Next, the respondents claim that certain of the requested records, described in paragraph 2, above, are exempt from disclosure, because they are erased, pursuant to §54-142a, G.S.

 

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

 

(a)  Whenever in any criminal case…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….

…

(c)(1)  Whenever any charge in a criminal case has been nolled in the Superior Court…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….

            …

(g)  The provisions of this section shall not apply to any police or court records or the records of any state’s attorney or prosecuting attorney with respect to any information or indictment containing more than one count (1) while the criminal case is pending; or (2) when the criminal case is disposed of unless and until all counts are entitled to erasure in accordance with the provisions of this section, except that when the criminal case is disposed of, electronic records or portions of electronic records released to the public that reference a charge that would otherwise be entitled to erasure under this section shall be erased in accordance with the provisions of this section.  … For purposes of this subsection, “electronic record” means any police or court record or the record of any state’s attorney or prosecuting attorney that is an electronic record, as defined in section 1-276, or a computer printout. 

 

            21.  At the hearing in this matter, the only witness for the respondents, Sgt. Seth Mancini, testified that he based his conclusion that certain of the requested records were erased solely on his search of the website of the State of Connecticut Judicial Branch (the “website”).  It is found that the website is the same one available to members of the public to obtain information about pending cases, criminal convictions, jury duty, court decisions and the like.  It is found that Sgt. Mancini conducted the searches by typing into the website the names of the individuals for whom the state police had arrest information on the dates requested by the complainant, and if those names did not appear in the search results on the website, he concluded that the records had been erased, within the meaning of §54-142a, G.S.  According to Mancini, the only way for him to determine the status of the criminal cases pertaining to such individuals, is for him to search the website, as described above.

 

22.  It is found that, with regard to their claim of erasure with respect to all other records withheld on this basis, the respondents made no distinction between cases that were erased because the charges may have been dismissed, and those that were erased because the charges may have been nolled.  It is further found that, to the extent that any of the charges were, in fact, nolled, the respondents provided no evidence as to the dates the nolles were entered.

 

23.  With regard to any requested records claimed to be erased and therefore exempt from disclosure, it is found that the evidence offered by the respondents, consisting solely of the search of the website, described in paragraph 21, above, while constituting some evidence, does not constitute substantial and reliable evidence that such records are erased.  It is therefore concluded that the respondents failed to prove that such records are exempt from disclosure.

 

24.  It is concluded that the respondents violated the FOI Act when they denied the complainant’s request for records, described in paragraph 2, above, pertaining to any records which are not indeed erased. 

 

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, conduct a search of their own records or contact the clerk’s office for the relevant judicial district, to determine, in accordance with the law and this decision, the status of the paper records for each of the individuals whose records they claim are erased.  The respondents then shall forthwith provide the complainant with copies of all records responsive to the request described in paragraph 2, above, that have not been erased by operation of law.  

 

2.  Forthwith, the respondents shall provide to the complainant copies of the blood alcohol tests and A-44 forms particularly described in paragraph 2 of the findings, above, that were withheld pursuant to §1-215, G.S.

 

            3.  Enforcement of paragraph 2 of the order is stayed until resolution of the appeal of the Memorandum of Decision in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al. (No. CV 09 4020071S) (April 21, 2010).

                                               

           

Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 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:

 

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 Terrence M. O’Neill, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-458/FD/cac/5/2/2011