In the Matter of a Complaint by                        Final Decision


David E. Koskoff,



            against              Docket #FIC 93-255


Commissioner, State of Connecticut, Department of Motor Vehicles,


                        Respondent                  May 11, 1994


            The above-captioned matter was heard as a contested case on December 10, 1993 and February 25, 1994, at which times the complainant 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.         It is found that by letter dated August 25, 1993, the complainant informed the respondent that on September 8, 1993 he would be at the respondent's offices to review "any 100 of the A-44 forms recieved by [that] office on ... September 7, 1993."


            3.         It is found that on September 8, 1993, the complainant was given access to the aforementioned A-44 forms, however, a template covering those portions of each form that the respondent did not wish to disclose prevented the complainant from viewing all sections of each form.


            4.         By letter of complaint dated September 13, 1993, and filed with the Commission on September 14, 1993, the complainant alleged that the respondent failed to make the entire A-44 forms and attachments (hereinafter "A-44 report"), available to him for review.


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            5.         It is found that on September 8, 1993, the respondent disclosed only the following information from each A-44 report: the motor vehicle operator's (hereinafter "operator"), name and address; the dates, times and location of the operator's arrest; and the offense for which the operator was arrested.


            6.         It is found that each A-44 report is comprised of the following:

            a.         seven sections, designated "A" through "I," which contain the following categories of information: operator and vehicle; pre-arrest; arrest; interview; implied consent advisory; chemical alcohol test data; chemical alcohol test refusal; attachments, which generally contain statements from witnesses and the arresting officer, as well as the results of field sobriety, intoximeter, and blood and urine tests performed on the operator; and the oath of the arresting officer.


            7.         It is found that in accordance with the provisions of 14-227b(c), G.S., each A-44 report is submitted to the respondent's administrative per se unit by state and local law enforcement agencies in connection with the arrests of operators who either refuse to submit to chemical analysis of their blood, breath or urine, or who have elevated blood alcohol content while operating a motor vehicle.


            8.         It is found that the A-44 report is a public record within the meaning of 1-18a(d) and 1-19, G.S.


            9.         It is found that pursuant to 14-227b(d), G.S., any operator whose motor vehicle license is suspended in connection with 14-227b(c), G.S., is automatically entitled to a probable cause hearing before the respondent prior to the effective date of suspension (hereinafter "administrative per se").


            10.       It is found that the administrative per se hearings are publicly held and there is nothing in the A-44 report that is not disclosed at the time of that hearing.


            11.       It is further found that the A-44 report is routinely made an exhibit at an administrative per se hearing and the respondent would thereafter make the report available to the public once the decision is rendered concerning the suspension.


            12.       Still, the respondent maintains that 1-19b(b), G.S., and Rule 3.6 of the Rules of Professional Conduct exempt the remainder of the A-44 report from disclosure.


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            13.       Section 1-19b(b)(1), G.S., in pertinent part states that:


            Nothing in the [Freedom of Information ("FOI") Act] shall be deemed in any manner to (1) affect ... the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state ....


            14.       It is found that the respondent routinely makes available the A-44 report to the arrested operator and his or her attorney.


            15.       It is also found that the respondent has failed to prove that the complainant is a party to any litigation involving the respondent.


            16.       It is further found that the respondent has failed to prove that disclosure of the A-44 records for the date in question would in any way "affect ... the rights of litigants" involved in administrative per se hearings related to the A-44 reports at issue, within the meaning of 1-19b(b)(1), G.S.

            17.       It is therefore concluded that the respondent has failed to prove the relevance or applicability of 1-19b(b), G.S., as the basis for any claimed exemption from disclosure in this case.


            18.       The pertinent language of Rule 3.6 of the Rules of Professional Conduct (hereinafter "Rule 3.6"), as promulgated by the Connecticut Practice Book and governing the conduct of attorneys, that the respondent relies upon states:


            (a) A lawyer shall not make any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding [emphasis added]; 


            (b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury,  a criminal matter, or any proceeding that could result in incarceration, and the statement relates to [emphasis added]:


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            ... (3) [t]he performance or results of any examination or test or the refusal of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; ...  [Emphasis added.]


            19.       However, Rule 3.6(c)(2) also states that:


            Notwithstanding paragraphs (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:


            (2) [t]he information contained in a public record; ...


            20.       The comment for Rule 3.6 further states that:


            It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.  Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved....  [However], there are vital social interests served by the free dissemination of information about events having legal consequences ....  The public has the right to know about threats to its safety and measures aimed at assuring its security.  [Emphasis added.]


            21.       It is found that the respondent's administrative per se hearings are not criminal proceedings; they are not triable to a jury; and the respondent has no authority to consider or impose incarceration as a result of the facts adduced at the suspension hearing.  License reinstatement or affirmation of the operator's license suspension are the only possible outcomes of such a hearing, in accordance with 14-227b(g), G.S.


            22.       It is concluded that the respondent has failed to prove that Rule 3.6 precludes disclosure of the contents of the A-44 reports upon the facts of this case.


            23.       The respondent argues further that the A-44 forms at issue are also used in the criminal prosecution of persons operating a motor vehicle while under the influence of liquor or drugs.


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            24.       Specifically, the respondent maintains that because A-44 reports are completed by law enforcement officers at the time of arrest, and may be used in criminal prosecutions the A-44 report is a record of arrest within the meaning of 1-20(b), G.S., and therefore both 1-20(b), G.S., and Gifford v. [FOI Commission], 227 Conn. 641 (1993), determine the disclosure obligations for such reports.


            25.       In relevant part Conn. Gen. Stat. 1-20(b), G.S., states:


            Notwithstanding any provision of the general statutes to the contrary, 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.  For the purposes of this section, "record of the arrest" means 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.


            26.       It is found that the A-44 report is not a "record of arrest" within the meaning of 1-20(b). G.S.


            27.       It is found that even if at the time the A-44 report is created it is comparable to a record of arrest for use in an administrative and, on occasion, a criminal proceeding, disclosure of its contents is neither limited nor governed by 1-20(b), G.S., because information about the arresting officer is also disclosable according to the respondent.


            28.       Additionally, it is found that all administrative per se matters involving A-44 reports recieved by the respondent on or about September 7, 1993 were statutorily required to be adjudicated or otherwise disposed of by his office within forty-five days of the date the subject operator received notice of his arrest, in accordance with 14-227b(g), G.S.


            29.       It is further found that at the time of this hearing the respondent failed to prove the pendency of any criminal prosecution involving the A-44 reports specifically requested by the complainant in his letter dated August 25, 1993.


            30.       It is therefore concluded that upon the facts of this case, the respondent violated 1-19(a), G.S., by not providing the complainant with the unredacted A-44 reports he requested.


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


            1.         Forthwith the respondent shall provide the complainant with access to inspect the entire A-44 reports at issue, including all attachments thereto.


Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 1994.



                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission


Docket #FIC 93-255                           Page 7





David E. Koskoff, Esq.

73 East Main Street

P.O. Box 370

Plainville, CT 06062


Commissioner, State of Connecticut,

Department of Motor Vehicles

c/o John Yacavone, Esq.

Chief, Legal Services Division, DMV

60 State Street

Wethersfield, CT 06129



                                    Elizabeth A. Leifert

                                    Acting Clerk of the Commission