FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Edward W. Frede, Valerie Roth and The News-Times,
Complainants
against Docket #FIC 91-283
Chief of Police, Danbury Police Department,
Respondent May 27, 1992
The above-captioned matter was heard as a contested case on February 28, 1992, at which time the complainants and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter dated August 1, 1991, the complainant Roth requested of the respondent copies of any and all arrest and incident reports concerning Clayton Harrison and Eugene McCallum who were arrested in the shooting death of James Lasky on July 30, 1991.
3. The suspects in the shooting of Lasky were arrested, without a warrant, on July 30, 1991, the same date as the shooting.
4. By letter dated August 28, 1991, the respondent granted the complainant Roth's request as to all police incident reports in closed cases, but denied the request with respect to the shooting death of Lasky on July 30, 1991.
5. By notice of appeal dated and filed with the Commission on September 12, 1991, the complainants appealed the foregoing denial.
6. At the hearing on this complaint, the respondent agreed to provide the complainants with a copy of the arrest record in the Lasky shooting. Consequently, the only record remaining at issue is the incident report concerning that shooting, the original of which is kept by the Danbury Police Department under the respondent's custody.
DOCKET #FIC 91-283 PAGE 2
7. As of the date of the hearing on this complaint, the trial in the criminal prosecution of State v. Harrison was being held in the Superior Court for the Judicial District of Danbury and according to both the respondent and the Danbury State's Attorney, the investigation into the Lasky shooting is still ongoing.
8. Although the respondent declined to provide the Commission with the incident report in question for an in camera inspection, it is found that the report is now approximately one and one-half inches thick; it contains: the name of the person arrested and a statement of the charges against him, police investigation records and the identities and addresses of confidential informants, statements of witnesses, medical reports, expected testimony, forensic evidence and video tapes of the crime scene.
9. In his letter of denial, the respondent asserted that after "consultation" with the State's Attorney for the Judicial District of Danbury, the respondent determined that the incident report concerning the Lasky shooting was exempt from public disclosure pursuant to 1-19(b)(3)(A),(B) and (C), G.S.
10. In addition, at the hearing on this complaint, the respondent for the first time asserted that the incident report concerning the Lasky shooting is not subject to public disclosure pursuant to 1-19c, G.S., as a consequence of an "agency" relationship under which the respondent and members of the Danbury Police Department act as "agents" for the Danbury State's Attorney.
11. In fact, the Danbury State's Attorney testified that, contrary to the respondent's assertion in his August 28, 1991 letter of denial, he "directed" the respondent to deny the complainant Roth's request under 1-19(b)(3)(A),(B) and (C), G.S., even though he had not seen all of the documents that at the time were part of the incident report and even though some of the information that formed part of the incident report was public by virtue of its inclusion in a "probable cause document" signed by a judge.
12. Section 1-19c states that for the purposes of the definition of "public agency" under 1-18a(a),G.S., the Division of Criminal Justice (hereinafter "DCJ") "shall not be deemed to be a public agency except in respect to its administrative functions."
DOCKET #FIC 91-283 PAGE 3
13. The respondent claims that he acts as the State's Attorney's agent and under his direction with respect to the disclosure of records in the respondent's custody pursuant to the authority of Article XXIII of the Amendments to the Connecticut Constitution and various state statutes, including 51-276, 51-277 and 51-286, G.S.
14. The constitutional and statutory provisions mentioned in the preceding paragraph establish and empower the DCJ, put it in charge of the investigation and prosecution of all criminal matters, invest the several State's Attorneys with the prosecutorial power of the state and require state and local police departments to assist and cooperate with the DCJ in criminal investigations and give the DCJ primacy in such investigations.
15. The Danbury State's Attorney testified that he believes the agency relationship between his office and the police commences at the time his office becomes actively involved in a criminal matter and continues through the conclusion of any prosecution in the matter.
16. In addition to 1-19c, G.S., the respondent also claims that the agency relationship between him and the State's Attorney binds him to the prohibitions against extrajudicial statements contained in Rules 3.6 and 3.8 of the Code of Professional Conduct for attorneys and other rules of court, including those related to discovery in criminal cases.
17. Under the Charter of the City of Danbury, the respondent is the chief executive officer of the Danbury Police Department and is in charge of the records of that department. The respondent testified that he is ultimately responsible for the decisions of the department.
18. The Commission takes administrative notice of its Advisory Opinion #74.
19. It is concluded that there is no explicit constitutional, statutory or other authority that creates the legal relationship of agency claimed by the respondent and which would apply to the facts of this case, and the Commission declines to find such a relationship by implication because it would unjustifiably shield police departments from the responsibilities of public agencies under the Freedom of Information Act. In this regard, the Commission reaffirms its opinion as set forth in its Advisory Opinion #74, Section B.
DOCKET #FIC 91-283 PAGE 4
20. Consequently, it is concluded that 1-19c, G.S., does not act to exempt the subject incident report from public disclosure.
21. Sections 1-19(b)(3)(A),(B) and (C), G.S., provide that nothing in the Freedom of Information Act shall be construed to require disclosure of:
"(3) 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, (B) information to be used in a prospective law enforcement action if prejudicial to such action, (C) investigatory techniques not otherwise known to the general public. . . ."
22. The respondent claims that disclosure of the subject incident report would reveal the identities of confidential informants and the Danbury State's Attorney testified that redaction of the report would not prevent the disclosure of their identities.
23. Both the respondent and the Danbury State's Attorney testified that when they considered the complainant Roth's request they felt that disclosure of the subject incident report would be prejudicial to a potential prosecution.
24. More specifically, the Danbury State's Attorney stated that he believed disclosure of the subject incident report would be prejudicial to the fair trial rights of the accused because it would reveal a statement that has now been suppressed as evidence by the court, photographs that might also be suppressed because of their prejudicial impact on a jury and uncorroborated evidence that will not be introduced at trial. Thus, the State's Attorney opined that disclosure of the subject report before trial and the conclusion of the prosecution would have made it difficult to select an impartial jury and might have prejudiced the accused's right to a fair trial.
25. It is found that the subject incident report contains information that would identify otherwise unknown informants and that is therefore exempt from disclosure under 1-19(b)(3)(A), G.S.
DOCKET #FIC 91-283 PAGE 5
26. However, the Commission finds incredible that the information in the subject incident report that would identify otherwise unknown informants cannot be redacted from the report.
27. It is also found that the respondent failed to prove that disclosure of the subject incident report would be prejudicial to a prospective law enforcement action, within the meaning of 1-19(b)(3)(B), G.S. The Commission finds unpersuasive the contention that disclosure in this case would prejudice the accused's right to a fair trial by revealing information that has been, or may be suppressed by the trial court. And there is no evidence that disclosure would be prejudicial because the subject report contains information, other than the identities of confidential informants, that is unknown to the accused.
28. It is also found that the respondent failed to prove that disclosure of the subject incident report would reveal investigatory techniques not otherwise known to the general public, within the meaning of 1-19(b)(3)(C), G.S.
29. Consequently, the Commission concludes that, with the exception of the identities of confidential informants, the subject incident report is not exempt from disclosure under 1-19(b)(3)(A),(B) or (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 respondent shall forthwith provide the complainants with a copy of the requested incident report concerning the shooting death of James Lasky on July 30, 1991.
2. In complying with paragraph 1 of this order, the respondent may redact any information that would identify any unknown informants whose identities are exempt from disclosure under 1-19(b)(3)(A), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 27, 1992.
Karen J.Haggett
Clerk of the Commission
DOCKET #FIC 91-283 PAGE 6
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:
Ralph G. Elliot, Esq.
Tyler, Cooper & Alcorn
CityPlace - 35th Floor
Hartford, CT 06103-3488
Eric L. Gottschalk, Esq.
155 Deer Hill Avenue
Danbury, CT 06810
Karen J.Haggett
Clerk of the Commission