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FREEDOM OF INFORMATION COMMISSION |
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In
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Advisory Opinion #33 |
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Commissioner of the State Police, Applicant |
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October 3, 1978 |
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On August 23, 1978, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Commissioner of the State Police. Thereafter, on September 22, 1978, the Commission held a public hearing on the subject of the above-captioned matter, at which time it solicited and received data, facts and opinion concerning such advisory opinion.
As part of his request, the applicant submitted an exemplar, four-page printed document entitled "Sex Crimes Report." The report can be divided analytically into three components. The first relates to the offender. When complete, it identifies the offender and describes him by certain physical characteristics. The second component relates to the sexual assault and the modus operandi of the assailant. The third component identifies the victim and describes in great detail the facts attending the crime.
In the course of investigating a case of sexual assault, state and local police departments complete a copy of the Sex Crimes Report and forward it to the sex crimes analysis unit of the State Police. The report is then used for several purposes. It is used collectively with other such reports to compile data on trends and patterns in sexual assault cases. In the same regard, the reports profile sexual offenders, victims and the circumstances surrounding such crimes. When gathered, this data will be made available to the public as part of the State Police's program to prevent sexual assaults. It is the applicant's hope that disclosure of these trends, patterns and profiles will forewarn potential victims of the situations that they should avoid in order to diminish the risk of attack.
The report, however, serves another and equally important function. That function is to identify the offender and victim and to describe the facts in the process of investigating the commission of serious crime. In this respect, the report is a meaningful tool used by police and prosecuting authorities in apprehending and prosecuting sexual offenders.
The applicant seeks this Commission's opinion as to whether the information contained in the Sex Crimes Report is exempt from mandatory disclosure under the Freedom of Information Act. The applicant states that sexual assault is one of the least reported crimes because of its very personal nature and because of the desire of victims to avoid embarrassing publicity. Thus, of particular concern to the applicant is the disclosure of victim identity. The applicant believes that the ability to assure the confidentiality of victim identity will encourage the reporting of sex crimes and thereby aid police agencies in their efforts to deter and detect such crime. The Commission commends the applicant for his sensitivity to this problem and for his good faith attempt to comply with the requirements of the Freedom of Information Act.
In responding to the applicant's inquiry, it is necessary first to cite the relevant law and then apply that law to the various components of the report.
Conn. Gen. Stats. §1-18a (d) defines public records 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, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method."
Under Conn. Gen. Stats §§1-15 and 1-19 (a), all public records must be made available by public agencies, including law enforcement agencies, for copying or inspection unless specifically exempt from disclosure by federal law, state statute or by one or more of the exemptions set forth in Conn. Gen. Stats. §1-19 (b). The Commission is unaware of any federal law or other state statute that would exempt the information contained in the Sex Crimes Report, save perhaps the Personal Data Act, Chapter 55 of the General Statutes. See particularly Conn. Gen. Stats. §4-191. In this regard, it should be noted that that act would apply, if at all, to personal data in the possession or custody of the State Police, and not to such data within the possession or custody of local police departments. See Conn. Gen. Stats. §4-190(a). In any event, an interpretation of that act is necessary for purposes of this opinion.
Also, since the applicant will make public those data from the Sex Crimes Reports that do not identify, or readily lead to the identity of, individuals, that issue need not be addressed in this opinion. Thus, it remains to consider whether any exemption to disclosure under Conn. Gen. Stats. §1-19 (b) applies to the record in question.
Conn. Gen. Stats. §1-19(b) (3) states 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 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, or (D) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes..."
It is the Commission's opinion that the Sex Crimes Report is a law enforcement agency record that is compiled in connection with the detection or investigation of crime. It is also the Commission's opinion that the victims of sexual assault who provide information for purposes of this report are informants within the meaning of §1-19 (b) (3) (A). Furthermore, the necessity of assuring the confidentiality of victim identity in order to encourage the reporting of sexual assault justifies the conclusion that disclosure of these persons' identities would prejudice seriously the bringing of prospective law enforcement actions in this area within the meaning of §1-19 (b) (3) (B).
It is therefore the Commission's opinion that where the identity of a sexual assault victim is not otherwise available to, or known by, the general public, a law enforcement agency can find properly that disclosure of such information is not in the public interest; and, accordingly, such identity need not be disclosed from the Sex Crimes Report under Conn. Gen. Stats. §1-19 (b) (3). This is not to say that an agency is compelled to confirm a victim's identity upon request. It must disclose the record of such information only where the identity had been made available to, or is known by, the general public, such as through the forum of a public trial.
It is also the Commission's opinion that the disclosure of the identities of suspect offenders, prior to arrest, might also affect adversely the bringing of prospective law enforcement actions within the meaning of §l-19 (b) (3) (B). Consequently, by the same reasoning and subject to the same conditions as stated above, a law enforcement agency can find properly that disclosure of such identity, prior to arrest, is not in the public interest, and such information need not be disclosed from the Sex Crimes Report under Conn. Gen. Stats. §1-19 (b) (3).
Likewise, an agency need not disclose data from the report that would lead readily to the identity of the victim or suspect offender under the circumstances described above. Whether particular data would lead readily to the identity of such persons is a question of fact to be determined on a case by case basis. Suffice it to say that the Commission does not intend to substitute its judgment for that of the law enforcement agency concerned. Nor does it intend to upset such agency determination unless it is patently unreasonable.
In the absence of other considerations and with the exception of the identities of victim and suspect offenders under the circumstances described above, it is the Commission's opinion that all other information contained in the Sex Crimes Report is not exempt from disclosure under the Freedom of Information Act. Therefore, subject to the limitations expressed herein, the non-exempt contents of such reports must be made available for public copying or inspection, as provided by Conn. Gen. Stats. §§1-15 and 1-19 (a).
The Commission sincerely believes that if the conclusions of this advisory opinion are implemented fairly, the policy of open government, as embodied in the Freedom of Information Act, can be achieved while protecting the legitimate interests of law enforcement agencies in assuring meaningful confidentiality to victims of sexual assault and in promoting the successful apprehension and prosecution of sex crime offenders.
By Order of the Freedom of
Information Commission
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Helen M. Loy, Chairman of
of the Freedom of Information
Commission
Date __October 11, 1978____
Ordered_________________
Charlene G. Arnold, Clerk