In the Matter of a Complaint by FINAL DECISION


Robert J. Smith and Robert M. Smith,




against Docket #FIC 87-338


Brian Shanley, Chief of Police and Sergeant Arnold Cerasuolo, Campus Police, Eastern Connecticut State University,


Respondents May 11, 1988


The above-captioned matter was heard as a contested case on February 22, 1988, 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:


1. The respondents are public agencies within the meaning of 1-18a(a), G.S.


2. On or about October 8, 1987 the complainant Robert M. Smith was arrested by an officer of Eastern Connecticut State University's campus police. On October 20, 1987 a hearing was held concerning the arrest, at which time the prosecuting attorney recommended that the charges be nolled and the matter was continued to November 3, 1987.


3. On or about October 20, 1987 the complainant Robert J. Smith made a request of the respondent sergeant for records pertaining to the arrest. The respondent sergeant provided only the prosecutor's summary, withholding the incident report, on the ground that the case was pending.


4. On or about October 28, 1987 the complainants met with the respondent chief and requested all records pertaining to the arrest. The respondent chief, unaware of the recommended nolle, provided some records but withheld others on the ground that the case was still pending.


Docket #FIC 87-338 Page Two


5. A nolle of the charges against the complainant Robert M. Smith was entered by order of the court on November 3, 1987. The respondent chief did not receive notice of the nolle until December 4, 1987.


6. On November 2, 1987 and November 6, 1987 the complainants made written requests of the respondents for records concerning the October 8, 1987 arrest, which requests were also denied.


7. By letter of complaint filed with the Commission on November 19, 1987 the complainants appealed the denial of their requests for records and requested the imposition of a civil penalty pursuant to 1-21i(b), G.S. The complainants also alleged a failure to notice a meeting, which allegation was withdrawn at hearing.


8. The complainant Robert M. Smith received the requested records on or about February 1, 1988.


9. The respondents claim that release of the requested records prior to the disposition of the case against the complainant Robert M. Smith would have prejudiced the pending law enforcement action against him within the meaning of 1-19(b)(3)(B), G.S.


10. The respondent chief testified that, in his opinion, as long as the case was pending, the complainants were required to seek the records in question through discovery proceedings.


11. It is found that the records in question are public records within the meaning of 1-18a(d), G.S.


12. It is further found that the respondents failed to prove that release of the records in question at any time would have prejudiced a pending law enforcement action within the meaning of 1-19(b)(3)(B), G.S.


13. It is further found that in the absence of circumstances not present here, the pendency of a criminal or civil court proceeding does not affect the rights granted by the Freedom of Information Act.


14. It is concluded that the respondents violated 1-15 and 1-19(a), G.S. when they failed to provide the complainants with the requested records promptly upon request.


15. The complainants' request for the imposition of a civil penalty, however, is denied.


Docket #FIC 87-338 Page Three


The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.


1. The respondents henceforth shall act in strict compliance with the requirements of 1-15 and 1-19(a), G.S. regarding prompt access to public records.


Approved by order of the Freedom of Information Commission at its regular meeting of May 11, 1988.



Catherine H. Lynch

Acting Clerk of the Commission