In the Matter of a Complaint by                        Final Decision


Marsha D. Clark,




                against                   Docket #FIC 95-370


Middletown Police Department,


                                Respondent                          June 12, 1996


                The above-captioned matter was heard as a contested case on March 14, 1996, at which time the complainant and the respondent appeared 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 letters dated and hand-delivered on September 26, 1995 and October 2, 1995, respectively, the complainant requested that she be provided with copies of all arrest records concerning her, including reports, statements or other supporting documents, for the time period November 1, 1994 to the present ("records request").


                3.             It is found that the respondent replied to the complainant's September records request on or about September 26, 1995, and advised her that there was "nothing available at [that] time."


                4.             It is found that by letter dated October 5, 1995 ("October letter"), the respondent acknowledged receipt of the complainant's October records request and advised her that her prior arrests had been nolled and therefore those arrest records were "not releasable."


                5.             It is found that in its October letter the respondent also informed the complainant that in addition to the cases which had been nolled, there were three pending criminal cases and those arrest records were similarly "not releasable."


Docket #FIC 95-370                                             Page Two


                6.             By letter of complaint dated October 12, 1995, and filed with the Commission on October 18, 1995, the complainant appealed the respondent's denial of her records requests.


                7.             It is found that the requested documents are public records within the meaning of 1-18a(d), G.S.


                8.             The respondent essentially argues that disclosure of the requested records would violate 54-142a(c), G.S., of the state's erasure statute.


                9.             Section 54-142a(c), G.S., in pertinent part states that:


                Whenever any charge in a criminal case has been nolled in the superior court, or in a court of common pleas, if at least thirteen months have elapsed since such nolle, all police and court records of the state's ... attorney ... shall be erased.....  Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases.  (Emphasis added.)


                10.           It is found that the complainant was arrested on the following dates: November 20, 1994, January 17, 1995, May 7, 1995, July 5, 1995, and August 9, 1995, ("five arrests").


                11.           It is found that the respondent has copies of the requested records relating to each of the five arrests.


                12.           It is found that the complainant's July 5 and August 9, 1995 arrests were each disposed of by payment of a fine on or about October 10, 1995.


                13.           It is found that by memorandum to the complainant's counsel dated January 29, 1996, the respondent acknowledged notification of the complainant's appeal before this Commission, and enclosed copies of records relating to the complainant's July and August arrests.


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                14.           It is concluded that the respondent violated 1-15, 1-19(a) and 1-20b, G.S., by failing to promptly provide the complainant with the requested arrest records for her July and August arrests.


                15.           The respondent argues that the requested records relating to the complainant's July and August arrests were disclosed to her solely because there had been a criminal plea adjudication in those criminal cases.


                16.           The respondent maintains that the arrests of the complainant occurring on November 20, January 17, and May 7, as more fully identified in paragraph 10, above, have been nolled and erased, pursuant to 54-142a(c), G.S.


                17.           It is found that for those arrests which have been nolled, the requested arrest records are subject to erasure upon the expiration of a thirteen month period from the date of the nolle.


                18.           It is found that the respondent has provided no evidence of the date the nolle occurred for the cases that have been nolled.


                19.           Nevertheless, it is found that at the time of the complainant's records requests, thirteen months had not elasped from the actual date of arrest, which would have preceded the nolle of charges for the November, January and May arrests.


                20.           It is found that prior to the expiration of the thirteen month period there is no statutory provision for the nondisclosure of records otherwise subject to 54-142(c), G.S.


                21.           Rado v. Board of Education, 216 Conn. 541, 549-550 (1990), sets forth the proposition that 54-142a, G.S., should be narrowly construed.


                22.           Indeed, even the Statutory Requirements Regarding Maintenance and Dissemination of Criminal Records in Connecticut, published by the Office of the Chief State's Attorney, acknowledges that "[p]rior to the thirteen month expiration date [there is] [n]o provision for the privacy of the records."  See Section III., B. 2a., p. 29 (appended hereto).


                23.           It is therefore concluded that, at the time of the complainant's records requests in this case, the records at issue were not subject to erasure pursuant to 54-142a(c), G.S.


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                24.           The respondent argues that even if the thirteen month period had not run for any of the five arrests, the state's attorney could have chosen to prosecute the charges for which any of the five arrests occurred, at any time within the thirteen months following the arrest, thereby exempting the requested records from disclosure under 1-19(b)(3)(C), G.S.


                25.           It is found that the respondent failed to prove that the charges stemming from the complainant's November, January or May arrests, for which documentation has not been provided, were "continued at the request of the prosecuting attorney" as set forth in 54-142a(c), G.S.


                26.           Section 1-19(b)(3)(C), G.S., states in relevant part that disclosure shall not be required of:


                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 propective law enforcement action if prejudicial to such action, ....


                27.           It is found that the respondent failed to prove that the requested records were to be used in a prospective law enforcement action, and that disclosure of those records to the complainant would have prejudiced any such action, as required by 1-19(b)(3)(C), G.S.


                28.           It is therefore found that the respondent failed to prove that the requested records contain any information exempt from disclosure under 1-19(b)(3)(C), G.S.


                29.           Under the facts and circumstances of this case, it is concluded that the respondent's failure to provide the complainant with copies of the requested records for her November, January and May arrests, violated the provisions of 1-15, 1-19(a), and 1-20b, G.S.


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


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                1.             Forthwith, the respondent shall provide the complainant with a copy of the requested records for the complainant's arrests occurring on November 20, 1994, January 17, 1995, and May 7, 1995, free of charge.


                2.             In addition, in complying with paragraph 1 of this order, the respondent shall also furnish to the complainant an affidavit stating that the records provided constitute the only records responsive to her records request.


                3.             In complying with paragraph 1 of this order, the respondent may redact the identities of, and personally identifiable information concerning individuals other than the complainant.


                4.             Henceforth, the respondent shall strictly comply with the public records requirements set forth in 1-15, 1-19(a), and 1-20b, G.S.


Approved by Order of the Freedom of Information Commission at its regular meeting of June 12, 1996.



                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission


Docket #FIC 95-370                                             Page 3





Marsha D. Clark

c/o Ralph E. Wilson

137 South Main Street

Middletown, CT 06457


Middletown Police Department

c/o Timothy P. Lynch, Esq.

City Attorney's Office

245 DeKoven Drive

P.O. Box 1300

Middletown, CT 06457-1300



                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission