OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
Docket #FIC 2000-032
September 13, 2000
The above-captioned matter was heard as a contested case on March 7, 2000, at which time 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 §1-200(1), G.S.
2. It is found that by letter
dated November 29, 1999, the complainant, through his counsel, requested that
the respondent provide him with a copy of all police records pertaining to a
December 21, 1998 incident and arrest of the complainant at Locust Street in
the city of Waterbury (hereinafter “requested records”).
3. It is found that by letter dated December 22, 1999, the respondent denied the request and informed the complainant’s counsel that the information requested involved a case that was nolled on February 2, 1999, and further, that because such case could be re-opened and prosecuted the requested records were exempt from disclosure pursuant to §1-210(b), G.S.
4. Having failed to receive the
requested records, the complainant, by letter dated January 19, 2000 and filed
on January 21, 2000, appealed to the Commission alleging that the respondent
violated the Freedom of Information (“FOI”) Act by
denying him a copy of the
5. Section 1-210(a), G.S., provides in relevant part that “[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records….”
6. It is found that the respondent maintains the requested records and such records are public records within the meaning of §1-210(a), G.S.
7. The respondent first contends that the requested records have been erased pursuant to §54-142a(c), G.S. Section 54-142a(c), G.S., provides in relevant part:
"Whenever any charge in a criminal case has
been nolled in the Superior Court…if at least thirteen months have
elapsed since such nolle, all police and court records and records of any
state’s or prosecuting attorney or the prosecuting grand juror pertaining to
such charge shall be erased…" [Emphasis added.]
8. Section 54-142a(e), G.S., further provides in relevant part:
"…any law enforcement agency having
information contained in such erased records shall not disclose to anyone,
except the subject of the record …information pertaining to any charge
erased under any provision of this section…."
It is found that the case arising from the complainant’s arrest (“case”)
was nolled on February 2, 1999, and that at the time of the complainant’s
records request (November 29, 1999), and even at the time of the respondent’s
denial of such request (December 22, 1999), “at least thirteen months” had
not elapsed since such nolle, within the meaning of §54-142a(c), G.S.
Consequently the requested records are not “erased” within the
meaning of §54-142a(c), G.S.
10. The Commission has also found that prior to the expiration of the thirteen month period there is no statutory provision for the nondisclosure of records otherwise subject to §54-142a(c), G.S. See contested case docket #FIC 95-370 Marsha D. Clark v. Middletown Police Department (Final Decision dated June 12, 1996).
11. The respondent next contends that because the case is still open and has not been officially disposed of by entrance of a nolle, the information contained in the requested records could be used in a prospective law enforcement action against the complainant, and disclosure of such information would be prejudicial to such action, and could prejudice the prosecutor’s discovery rights.
12. Section 1-210(b)(3), G.S.,
permits the nondisclosure 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 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 prospective law enforcement action if prejudicial to such action …."
13. Section 1-213(b)(1), G.S.,
further provides that:"[N]othing in the Freedom of Information Act shall
be deemed in any manner to…limit the rights of litigants, including parties
to administrative proceedings, under the laws of discovery of this
14. 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 such action, as required by §1-210(b)(3)(C), G.S.
15. It is therefore found that the respondent failed to prove that the requested records are exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.
16. It is also found that the respondent failed to prove that the requested records if disclosed to the complainant would limit the rights of litigants, within the meaning of §1-213(b)(1), G.S.
17. Consequently, it is concluded that the respondent violated §1-210(a), G.S., when he failed to provide the complainant with a copy of the requested records.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide the complainant with a copy of the requested records.
2. Henceforth, the respondent shall strictly comply with the disclosure requirements of §210(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 13, 2000.
Melanie R. Balfour
Acting Clerk of the Commission
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:
70 Harris Circle
Waterbury, CT 06705
Supervisor, Police Department, City of Waterbury, Record Division
c/o Atty. Kevin J. Daly, Jr.
Waterbury Police Department
Office of Corporation Counsel
255 East Main Street
Waterbury, CT 06702
Melanie R. Balfour
Acting Clerk of the Commission