FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Robert H. Boone and Journal Inquirer,
against Docket #FIC 89-360
Chief of Police, Windsor Locks Police Department,
Respondent September 12, 1990
The above-captioned matter was heard as a contested case on March 1, 1990, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.
At its regular meeting of May 23, 1990, the Commission adopted an hearing officer's report dated April 23, 1990, as its Final Decision in this matter.
Subsequently, at its regular meeting on June 27, 1990, the Commission granted the petition for reconsideration filed by the respondent and granted intervenor status for the Chief State's Attorney.
The matter was again heard as a contested case on July 5, 1990, at which time the parties and the intervenor appeared to present evidence and argument.
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. It is found that on September 12, 1989, the Windsor Locks police arrested two persons who were distributing literature with racist and anti-Semitic content in front of a convenience store.
3. It is found that one of the persons, a youth, was charged with possession of a dangerous weapon, and the other, named William Landers, was charged with reckless endangerment.
4. It is found that on September 13, 1989, a reporter
Docket #FIC 89-360 page two
employed by the complainant Journal Inquirer requested the arrest/incident report pertaining to the arrests described in paragraphs 2 and 3, above.
5. It is found that the respondent, on or about September 13, 1989, denied the complainants access to the record after discussing the matter with the local prosecutor.
6. By letter of complaint dated September 19, 1989, the complainants alleged that the respondent violated 1-15 and 1-19, G.S.
7. It is found that, just before the July 5, 1990 hearing on the above-captioned matter, the complainants obtained a copy of the requested record with the names and addresses of the youth and a witness redacted.
8. The complainants allege that the entire incident report should have been provided at the time of the request pursuant to 1-15 and 1-19(a), G.S.
9. It is concluded that this case is not moot because (a) the issue of whether the entire record should be disclosed remains as an issue, (b) the issue of whether the record was provided promptly remains as a real and substantial issue between the parties, and (c) the issue of promptness is a recurring one and is likely to be raised again between the parties.
10. It is found that the requested record, which with certain redactions is part of the record herein, consists of a narrative of the incident that led to the arrest; a description of Landers' behavior in jail; witnesses' statements, names and addresses; the names and addresses of the persons arrested; and the name and address of the victim.
11. The respondent claims that the record was exempt at the time of the request on September 13, 1989, pursuant to 1-19(b)(3), G.S.
12. The Commission takes administrative notice of a 1987 publication of the office of the Chief State's Attorney titled Maintenance and Dissemination of Criminal Records in Connecticut, parts I, and IV D.
13. It is concluded that under the facts of this case the names and addresses of the witnesses contained in the requested report are exempt from disclosure under 1-19(b)(3)(B), G.S.
Docket #FIC 89-360 page three
14. It is found that the youth, who was arrested in the incident described at paragraphs 2 and 3 above, and who by age might qualify for youthful offender status, had not applied for youthful offender status at the time of the complainants' request.
15. It is concluded that at the time of the request, the portions of the report that specifically identify the youth were not exempt pursuant to 1-19(b)(3)(D), G.S.
16. It is concluded, however, because the portion of the record pertaining to the youth has been sealed by the court, that the Commission will defer to that order and will not order disclosure of the portion of the requested record which pertains to the youth and which was redacted before being provided to the complainant.
17. It is found that the respondent failed to prove that any other portions of the report were exempt from disclosure pursuant to 1-19(b)(3), G.S.
18. The respondent and the intervenor further claim that the requested record is exempt as a consequence of a relationship, which they characterize as one of agency with the police department acting as agent for the state's attorney. In support of this claim the respondent and the intervenor cite the Connecticut Constitution; 51-276, 51-286(d) and (e), and 54-86(c), G.S.; Rule 3.8 of the Rules of Professional Conduct; and certain language set forth in decisions of the Supreme and the Appellate Courts.
19. It is concluded that there is no explicit constitutional, statutory, or judicial authority that creates the legal relationship of agency claimed by the respondent and the intervenor and which would apply to the facts of this case, and the Commission declines to imply such a generic relationship.
20. The intervenor further claims that 1-19b(b), G.S. prohibits disclosure of the requested record because the arrest/incident report is not subject to unconditional disclosure under the rules of discovery set forth in the Connecticut Practice Book at 752, 753, and 746.
21. It is concluded that under the facts of this case 1-19b(b), G.S. does not prohibit disclosure of the requested record.
Docket #FIC 89-360 page four
22. The intervenor further claims that 1-20b, G.S., restricts the amount of information which is public in an arrest record.
23. It is concluded that 1-20b, G.S., is not a limitation upon the amount of information in an arrest record that is public.
24. The intervenor further claims that 1-19(b)(4), G.S., exempts the record from disclosure because the arrest/incident report is used for strategy and negotiation by the prosecutor.
25. It is also concluded the use of the arrest/incident report by the prosecutor, who is not a party herein, is not sufficient to bring such report within the scope of the exemption at 1-19(b)(4), G.S.
26. It is concluded that, pursuant to 1-19c, G.S., the intervenor is not a public agency within the meaning of 1-19(b)(4), G.S., when it uses an arrest/incident report in its prosecutorial function.
27. It is concluded that the respondent failed to provide the required report promptly as required by 1-19(a), 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 henceforth comply with the disclosure requirements of 1-19(a), G.S.
2. Because the respondent has now provided the complainant with a copy of the requested record to the extent the Commission would have ordered disclosure, the Commission declines to enter another order of disclosure in this case. However, the Commission cautions the respondent to take care to comply with the law in the future or it may risk further consequences for its continuing disregard of the law.
Approved by order of the Freedom of Information Commission at its regular meeting of September 12, 1990.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 89-360 page five
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 H. BOONE AND JOURNAL INQUIRER
306 Progress Drive
Manchester, CT 06040
CHIEF OF POLICE, WINDSOR LOCKS POLICE DEPARTMENT
c/o David J. Wenc, Esq.
5 North Main Street
P.O. Box 306
Windsor Locks, CT 06096
JOHN J. KELLY
c/o Mary H. Lesser, Esq.
Assistant State's Attorney
340 Quinnipiac Street
P.O. Box 5000
Wallingford, CT 06492
Tina C. Frappier
Acting Clerk of the Commission