FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
James Torlai,  
  Complainant  
  against   Docket #FIC 2009-736

Chief, Police Department, Town of

Wolcott; and Police Department, Town

of Wolcott,

 
  Respondents October 13, 2010
       

 

The above-captioned matter was heard as a contested case on May 14, 2010 at which time the complainant 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 and conclusions of law are reached:

1.      The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.      By letter dated October 27, 2009, the complainant made a request to the respondent department for a copy of the records of arrests related to all arrests made and the blood alcohol tests related to those arrests for the following dates: July 4, 2008; August 10 and 17, 2008; September 14, 2008; and January 13 and 15, 2009.

 

3.      It is found that the respondents attempted to contact the complainant by telephone; however, by letter dated November 13, 2009, the complainant requested that the respondents contact him in writing.

 

4.      It is found that on November 17, 2009, the complainant received written correspondence from the respondents informing him that there were no records responsive to his request for the dates of July 4, and September 14, 2008, and that the records responsive to his request for the dates of August 10 and 17, 2008, and January 13 and 15, 2009, could not be released because the court had not rendered a disposition in those cases. 

 

5.      By letter dated November 28, 2009, and filed on December 3, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly comply with his records request and by denying him access to public records.

 

6.      Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. 

 

7.      Section 1-210(a), G.S., provides in relevant part that:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . receive a copy of such records in accordance with section 1-212. 

 

8.      Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

9.      It is found that the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

10.   At the hearing on this matter, the complainant indicated that notwithstanding the respondents’ November 17, 2009 response described in paragraph 4, above, he believed that he should have been provided with all responsive records for the dates of August 10 and 17, 2008, and January 13 and 15, 2009.

 

11.   At the hearing on this matter, the respondents explained that the complainant’s request was initially denied based upon a policy to withhold arrest records and any related information when there had not been a court disposition in the case.  The respondents also explained that after notice of the complaint in this matter was received by the respondents, the policy was reviewed and amended to comply with the disclosure provisions of the FOI Act.  The respondents contended, however, that by the time the complainant’s request was reviewed pursuant to the amended policy, the records had become subject to the erasure provisions of 54-142, G.S., and could not be disclosed.

 

12.   Section 54-142a(a), G.S., provides in relevant part that:

 

Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken . . .

 

13.   Section 54-142c, G.S., provides in relevant part that:

 

(a) [t]he clerk of court or any person charged with retention and control of erased records . . . or any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased records or information pertaining to any charge erased under any provision of this part, except as otherwise provided in this chapter.


(b) [n]otwithstanding any other provision of this chapter, within two years from the date of disposition of any case, the clerk of the court or any person charged with the retention and control of erased records . . . or any criminal justice agency having information contained in such erased records may disclose to the victim of a crime or the victim’s legal representative the fact that the case was dismissed. . . .

 

14.   For purposes of 54-142c, G.S., a “criminal justice agency” is defined as including “any . . . government agency created by statute which is authorized by law and engages, in fact, as its principal function in activities constituting the administration of criminal justice.”

 

15.   It is found that the respondent department is a criminal justice agency for purposes of 54-142c, G.S.

 

16.   It is found that all the charges described in the arrest records at issue were dismissed.

 

17.   It is therefore found that, pursuant to the provisions of 54-142a(a) and 54-142c, G.S., the requested records are exempt from disclosure at this time. 

 

18.   However, it is found that at the time of the complainant’s October 27, 2009 request, and the respondents’ denials of such requests, the cases had not been dismissed, and, as such, the requested records were not exempt from disclosure at such times.

 

19.       It is therefore concluded that the respondents violated the disclosure provisions of 1-210(a) and 1-212(a), G.S., by failing to promptly disclose the requested records, when such records were requested and when such records were not subject to the erasure provisions of 54-142a(a) and 54-142c, G.S.

 

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

 

1.      Henceforth, the respondents shall strictly comply with the promptness requirements of 1-210(a) and 1-212(a), G.S.

 

2.      Furthermore, the respondents shall strictly comply with the disclosure provisions of the FOI Act by not withholding records that are not yet subject to the erasure provisions of 54-142a(a) and 54-142c, G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2010.

 

 

__________________________

Cynthia A. Cannata

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:

 

James Torlai

127 Barton Street

Torrington, CT  06790

 

Chief, Police Department, Town of Wolcott

c/o Neil O’Leary

225 Nichols Road

Wolcott, CT  06716

 

Police Department, Town of Wolcott

c/o Captain Domenic Angiolillo

225 Nichols Road

Wolcott, CT  06716

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-736/FD/cac/10/18/2010