FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

T. Dennie Williams, Leslie Gura

and The Hartford Courant,

 

                        Complainants

 

            against                                                                          Docket #FIC 1996-429

 

Commissioner, State of Connecticut

Department of Public Safety; and

Reports and Records Division, State

of Connecticut Department of Public Safety,

 

                        Respondents                                                     December 11, 1996

 

The above-captioned matter was heard as a contested case on November 19, 1996, 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 §1-18a(a), G.S.

 

2.  It is found that since April 25, 1995 the complainants have been requesting that the respondents provide them with a copy of the records contained in the state police case file #F94-272054 concerning a school bus fire at Haddam-Killingworth high school during August 1994 (hereinafter “requested records”).

 

3.  It is found that the respondents denied the request on October 15, 1996 on the basis that the Middlesex State’s Attorney objected to disclosure.

 

4.  Having failed to receive the requested records the complainants, by letter dated and filed with the Commission on October 15, 1996, appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying them a copy of the requested records.

 

5.  It is found that following a criminal investigation into the fire described in paragraph 2 of the findings, above, the Middlesex State’s Attorney brought charges against three defendants in three separate criminal cases.

Docket #FIC 1996-429                                                                                  Page 2

 

 

6.  It is found that the requested records are maintained by the respondents and consist of, among other records, police reports, witness statements and physical evidence.

 

7.  It is concluded that the requested records are public records within the meaning of §§1-18a(d) and 1-19(a), G.S.

 

8.  The respondents contend that the requested records are exempt from disclosure pursuant to §§1-19(b)(3)(C), 54-142a and 54-142c, G.S.

 

9.  Section 1-19(b)(3)(C), G.S., permits the nondisclosure of “[r]ecords 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 information to be used in a prospective law enforcement action if prejudicial to such action.”

 

10.  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….

 

11.  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….

 

 

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

 

…any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased record or information

 

Docket #FIC 1996-429                                                                                  Page 3

 

 

pertaining to any charge erased under any provision of part I of this chapter, except as otherwise provided in this chapter.

 

13.  Under certain circumstances, §54-142a(f), G.S., permits the disclosure of erased records to a defendant, a prosecuting attorney and defense counsel, while §54-142c(b), G.S., permits disclosure of such records to a victim.

 

14.  It is found that the three cases described in paragraph 5 of the findings, above, were dismissed as against the three defendants, two of which the State did not appeal, and one of which is currently pending in the Appellate Court.

 

15.  It is concluded that as to the two cases dismissed and not appealed, the requested records are erased and are therefore, exempt from disclosure in accordance with §1-19(a), G.S., by operation of §§54-142a(a), 54-142a(e) and 54-142c(a), G.S.

 

16.  It is also concluded that although the complainants obtained waivers from the three defendants granting them permission to gain access to all of the requested records, §§54-142a and 54-142c, G.S., do not authorize the respondents to disclose erased records to the complainants.

 

17.  It is therefore concluded that the respondents did not violate §§1-15(a) and 1-19(a), G.S., when they failed to provide the complainants with a copy of the requested records in the two cases dismissed and not appealed.

 

18.  It is further concluded, however, that although erased with respect to the two cases dismissed and not appealed, the requested records have not been erased by operation of §54-142a(a), G.S., with respect to the case dismissed and currently on appeal, and must therefore, be disclosed under §1-19(a), G.S., unless otherwise exempt by federal law or state statute.

 

19.  The respondents contend that disclosure of the requested records in the case currently on appeal would be prejudicial to a potential prosecution and consequently are exempt from disclosure under §1-19(b)(3)(C), G.S.

 

20.  More specifically, the Middlesex State’s Attorney testified that if he is successful in the appeal of the case described in paragraph 18 of the findings, above, he may decide to re-prosecute the defendant, in which event, he believes that disclosure of the requested records would create widespread pretrial publicity that could possibly trigger a motion for a change of venue.

 

 

Docket #FIC 1996-429                                                                                   Page 4

 

 

21.  It is found that the respondents failed to prove that disclosure of the requested records, as to the case now on appeal, would be prejudicial to a prospective law enforcement action within the meaning of §1-19(b)(3)(C), G.S.  In this regard, the Commission finds the Middlesex State’s Attorney’s testimony unpersuasive and highly speculative.

 

22.  Consequently, it is concluded that that portion of the requested records not erased by operation of §54-142a(a), G.S., and described more fully in paragraph 18 of the findings, above, is not exempt from disclosure pursuant to §1-19(b)(3)(C), G.S.

 

              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 the complainants with a copy of that portion of file #F94-272054 which has not been erased by operation of §54-142a(a), G.S., and described more fully in paragraph 18 of the findings, above.

 

        2.  In complying with paragraph 1 of the order, the respondents may redact the identities of the defendants in the two cases that were dismissed but not appealed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 1996.

 

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

Acting Clerk of the Commission

Docket # FIC 1996-429                                                                                              Page 5

 

 

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:

 

T. Dennie Williams, Leslie Gura and The Hartford Courant

c/o  Ralph G. Elliot, Esq.

Tyler Cooper & Alcorn

CityPlace - 35th floor

Hartford, CT 06103-3488

 

 

Commissioner, State of Connecticut Department of Public Safety; and Reports and Records Division, State of Connecticut Department of Public Safety

c/o  Ann E. Lynch, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

                                                                                    __________________________

                                                                                    Elizabeth A. Leifert

                                                                                    Acting Clerk of the Commission

 

 

 

 

 

 

 

 

 

 

 

 

FIC 1996-429/FD/eal/121696