FREEDOM OF INFORMATION COMMISSION

                                                OF THE STATE OF CONNECTICUT 

 

 

In the Matter of a Complaint by                                                FINAL DECISION

 

Robert F. Field,

 

                        Complainant,

 

            against                                                                          Docket #FIC 1997-248

 

Major Crime Squad, Troop “L”, State of Connecticut,

Department of Public Safety, Division of State Police;

State of Connecticut, Department of Public Safety,

Division of State Police; and Patricia Gilbert,

Assistant State’s Attorney,

 

                        Respondents                                                     February 11, 1998

 

 

            The above-captioned matter was heard as a contested case on November 10, 1997, at which time the complainant and the respondents appeared, and presented testimony, exhibits and argument on the complaint. The caption of the case has been amended in order to reflect the addition of Patricia Gilbert, Assistant State’s Attorney, as a party respondent.

 

            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.  By two letters each dated July 10, 1997, the complainant requested:

 

                        a)  all complaints, memoranda, log entries, notes, correspondence, police reports, and, if available, any recordings of complaints regarding gunshots heard at 166 Portland Avenue, said complaint emanating from a person or persons working at the Bread and Roses hospice, a nearby convalescent facility, from January, 1995 through April 18, 1995 (the “gunshot records”); and

 

                        b)  all faxes and teletypes and, if available, recordings of any telephone calls made to the North Carolina State Police regarding information transmitted to said police department, in order to put together search warrants and/or arrest warrants and/or affidavits for same between the dates of April 18, 1995 and    June 1, 1995 (the “North Carolina communications”, which when taken together with the gunshot records are herein the “requested records”).

 

            3.  By letters dated July 16 and July 22, 1997, the respondents declined to furnish the requested records to the complainant, citing §1-19(b), G.S., as the legal basis for such action.

 

4.  By letter dated August 7, 1997, and filed on August 12, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act by declining to provide the requested records, stating that “there is no further pending investigation in this matter by the Connecticut State Police”.

 

            5.  At the hearing and in their post-hearing brief, the respondents stated their contention that:

 

a)  they do not have any gunshot records in their custody; and

 

b)  the North Carolina communications exist, but that the complainant is not entitled to them based upon the provisions of §§1-19b(b), 1-20b, and 1-19(b)(3)(C), G.S.

 

6.  Section 1-19b(b) provides in pertinent part: 

 

Nothing in the Freedom of Information Act shall be

deemed in any manner to… limit the rights of litigants,

including parties to administrative proceedings, under

the laws of discovery of this state….

 

7.  Section 1-20b, G.S., provides:

 

(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 1-15 and subsection (a) of section 1-19, 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 1-19.  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.

                       

(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.

 

8.  And §1-19(b)(3), G.S., provides that various records shall be exempt from mandatory disclosure, including:

 

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 if prejudicial to such action…[and]

 

            9.  It is found that the respondents do not have any gunshot records in their custody.

 

10.  It is found that a criminal prosecution for five counts of murder is currently pending against Geoffrey Ferguson, that the complainant has made the same exact request for the requested records through discovery, and that the relevant motion to compel was denied by the court.

 

            11.  It is found that the North Carolina communications are “record(s) of the arrest of” Geoffrey Ferguson, as the term is utilized in §1-20b, G.S.

 

12.  It is found that the North Carolina communications are “not otherwise available to the public” and “were compiled in connection with the…investigation of crime”, as the terms are utilized in §1-19(b)(3), G.S.

 

            13.  It is also found that the North Carolina communications do contain information that may be used in a prospective law enforcement action.

 

14.  It is found that disclosure of the North Carolina communications would prejudice a “prospective law enforcement action”, the pending criminal prosecution for murder described at paragraph 10, above, by disclosing the strategy of the respondent state’s attorney, by prejudicing the respondent state’s attorney’s ability to defend various motions filed by the complainant, including a motion to suppress evidence, and by causing further newspaper accounts that could bias potential jurors.

 

15.  It is concluded, based upon the finding at paragraph 10, above, that disclosure mandated by the Freedom of Information Act would, in effect, overrule the trial court and therefore “would limit the rights of litigants…under the laws of discovery of this state….” in the very manner prohibited by §1-19b(b), G.S. Such a result “would transform the commission, an executive agency, into the overseer of criminal discovery”, “an extraordinary result”. William H. Gifford et al. v. Freedom of Information Commission et al., 227 Conn. 641 (1993), p. 665.

 

            16.  It is also concluded that disclosure of the North Carolina communications “would not be in the public interest” because it would prejudice a prospective law enforcement action, as found at paragraph 14, above.

 

17.  It is therefore concluded that the North Carolina communications are records of law enforcement agencies which are exempt from mandatory disclosure pursuant to §1-19(b)(3)(C), G.S.

 

18.  It is also concluded, based upon the conclusion set forth at paragraph 17, above, that the North Carolina communications are exempt from mandatory disclosure pursuant to the provisions of §1-20b, G.S.

 

19.  It is therefore concluded that the respondents did not violate §§1-19(a) and 1-15(a), G.S., by failing to provide the complainants 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 complaint is hereby dismissed.

 

 

 

                Approved by Order of the Freedom of Information Commission at its regular meeting of February 11, 1998.

 

 

 

 

 

_________________________

Doris V. Luetjen

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:

 

Robert F. Field

c/o Atty. Paul Eschuk

146 White Street

Danbury, CT 06810

 

 

Major Crime Squad, Troop “L”, State of Connecticut,

Department of Public Safety, Division of State Police;

State of Connecticut, Department of Public Safety,

Division of State Police; and Patricia Gilbert,

Assistant State’s Attorney

c/o Henri Alexandre

Assistant Attorney General’s Office

110 Sherman Street

Hartford, CT 06105

 

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

 

 

 

 

FIC1997-248/FD/tcg/02111998