FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Stephanie Reitz and

The Associated Press,

 
  Complainants  
  against   Docket #FIC 2010-091
Commissioner, State of Connecticut,
Department of Public Safety; and State
of Connecticut, Department of Public
Safety, Division of State Police,
 
  Respondents January 13, 2011
       

 

The above-captioned matter was heard as a contested case on May 20, 2010, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

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

 

2.  It is found that, by email dated February 4, 2010, the complainants requested that the respondents provide them with a copy of the booking photograph or “mug shot” of Elmore Torn (hereinafter “the requested record”), who was arrested on January 29, 2010, in Salisbury, Connecticut. 

 

3.  It is found that, by email dated February 5, 2010, the respondents acknowledged the request described in paragraph 2, above, but denied such request, contending that, pursuant to 1-215, G.S., they were not required to provide the complainants with a copy of the requested record. 

 

4.  By letter of complaint dated and filed February 11, 2010, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for a copy of the requested record. 

 

5.  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.

 

6.  Section 1-210(a), G.S., states in relevant part:

 

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.   Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 

 

7.  Section 1-212(a), G.S., states in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

8.  It is found that the respondents maintain the requested record and that, therefore, such record is a public record within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.  It is found that the respondents have a written policy of not publishing mug shots.  Certainly, a public agency’s written policy cannot override the requirements of the FOI Act.  Moreover, it is further found that the respondents also have a written policy of allowing news photographs of arrested persons on agency property within areas of public access. 

 

10.  The respondents contend that 1-215, G.S., permits them to withhold the requested record from the complainants.    

 

11.  Section 1-215, G.S., provides as follows:

 

 (a)  Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, 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 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210.  Any personal possessions or effects found on a person at the time of such person's arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested. (Emphasis supplied).

(b)  For the purposes of this section, “record of the arrest” means (1) 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, and (2) at least one of the following, designated by the law enforcement agency:  The arrest report, incident report, news release or other similar report of the arrest of a person.

 

12.  The Commission notes that the term “record of arrest,” as set forth in 1-215, G.S., does not specifically include the term “mug shot.”  Rather, the legislature has defined such term to include only written records.  It is found that the respondents failed to prove that a mug shot is, or is part of, a record of arrest. 

 

13.  Moreover, the Commission has consistently concluded that 1-215, G.S., does not exempt records from public disclosure under the FOI Act, but rather mandates that, at a minimum, certain arrest records must be disclosed.  In instances where a public agency seeks to withhold other records not mandated to be disclosed pursuant to 1-215, G.S., such public agency must prove that an exemption applies to such other records.

 

14.  The respondents contend that the Superior Court decision in Commissioner State of Connecticut, Department of Public Safety v. Freedom of Information Commission, CV 09-4020071S, Superior Court, J.D. New Britain (Cohn, J.) (April 21, 2010) controls in this matter.  In that case, the court reversed the Commission’s decision in Docket #FIC2008-312, and held that 1-215, G.S., operates to exempt a police incident report.  The Commission notes that such case did not involve a mug shot.  Moreover, the Commission has appealed such judgment to the Appellate Court.  Pending the final resolution by the Appellate Court or the Supreme Court, the Commission maintains that its interpretation of 1-215, G.S., is correct.  The following analysis sets forth the Commission’s position:

 

15.  When construing statutes, the courts’ and administrative tribunals’ fundamental objective “is to ascertain and give effect to the apparent intent of the legislature.”  State v. Patterson, 276 Conn. 452, 478, 886 A.2d 777 (2005).  “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to the existing legislation and common law principles governing the same general subject matter.”  Id. at 478-79 (quoting State v. Kirk R., 271 Conn. 499, 510, 857 A.2d 908 (2004)). 

 

16.  Pursuant to 1-2z, G.S., “the meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratexual evidence of the meaning of the statute shall not be considered.” 

 

17.  “It is also a general principle of statutory interpretation that every word [in a statute] has meaning regardless of the type of statute.” State v. Brown, Jr., 49 Conn. Supp. 168, 865 A.2d 510 (Conn. Super. Ct. Nov. 2, 2004).  In other words, “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase. . . [so that] no word [or phrase] in a statute is to be treated as superfluous.”  (Internal quotation marks omitted).  State v. Peeler, 271 Conn. 338, 434-35, 857 A.2d 808 (2004); see also State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996) (“It is, however, equally understood that despite the nature of the statute, it must be construed, if possible, such that no clause, sentence or word shall be superfluous, void, or insignificant. . . .”).

 

18.  It is concluded that the language in 1-215, G.S., is clear and unambiguous. 

 

19.  It is further concluded that the interpretation of 1-215(b), G.S., advanced by the respondents would render the obligations and the instructions set forth in 1-215(a), G.S., nugatory, in contravention of the general principle of statutory construction set forth in paragraph 17, above.  See State v. Nelson, 126 Conn. 412, 416, 11 A.2d 865 (1940) (“Courts may not by construction supply omissions in a statute, or add exceptions because it appears to them that good reasons exist for adding them.”).  Specifically, it is concluded that the respondents’ interpretation of their disclosure obligations set forth in 1-215(b), G.S., would eviscerate the clear direction in 1-215(a), G.S., which is that the disclosure of law enforcement records must be decided in light of the permissive exemptions set forth in 1-210(b)(3), G.S. ( “disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of [1-215, G.S.] shall be subject to the provision of subdivision (3) of subsection (b) of section 1-210”) (emphasis supplied).

 

20.  Accordingly, it is concluded that the requested record is not exempt from mandatory disclosure by virtue of 1-215, G.S. 

 

21.  The respondents also contend that 29-15, G.S., exempts the requested record from mandatory disclosure.   

 

22.   Section 29-15, G.S., provides:

 

(a)  On or after October 1, 1974, when any person, having no record of prior criminal conviction, whose fingerprints and pictures are so filed has been found not guilty of the offense charged, or has had such charge dismissed or nolled, his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, shall, be returned to him not later than sixty days after the finding of not guilty or after such dismissal or in the case of a nolle within sixty days after thirteen months of such nolle. 

 

(b) Any person having no record of prior criminal conviction whose fingerprints and pictures so filed, who has been found not guilty of the offense charged or has had such charge dismissed or nolled prior to October 1, 1974, may, upon application to the person charged with retention and control of such identification data at the State Police Bureau of Identification, have his fingerprints, pictures and description and other identification data and all copies and duplicates thereof, returned to him not later than sixty days after the filing of such application provided in the case of a nolle, such nolle shall have occurred thirteen months prior to filing of such application. 

 

23.  It is concluded that 29-15, G.S., neither by express language or by implication, exempts the mug shot at issue in this matter from mandatory disclosure. 

 

24.  Section 29-15, G.S., requires that the respondents return the fingerprints, photographs, and other identification data to arrested persons where charges have been dismissed or nolled, or where there has been a finding of not guilty, in certain circumstances.  Such provision does not mandate that such records shall not be disclosed pursuant to a request under the FOI Act where there is no showing that a charge has been dismissed or nolled, or that the records have been returned to an arrested person.  Nothing in the record of this matter suggests that the requested record has been returned to Mr. Torn, or that charges against him have been dismissed or nolled.    

 

25.  It is concluded that the requested record is not exempt from mandatory disclosure by virtue of 29-15, G.S. 

 

26.  It is further concluded that the respondents violated the FOI Act, as alleged in the complaint.

 

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

 

1.  Forthwith, the respondents shall provide the complainants with a copy of the requested record, free of charge. 

 

            2.  The respondents’ policy of not publishing all mug shots, as set forth in paragraph 9 of the findings, above, is void. 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of January 13, 2011.

 

 

__________________________

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:

 

Stephanie Reitz and the Associated Press

c/o Daniel Klau, Esq.

McElroy, Deutsch, Mulvaney & Carpenter, LLP

1 State Street, 14th Floor

Hartford, CT  06103

 

and

 

Patrick Kabat, Esq.

Media Freedom and Information Access Practicum

P.O. Box 208215

New Haven, CT  06520

 

Commissioner, State of Connecticut,

Department of Public Safety; and

State of Connecticut, Department of

Public Safety, Division of State Police

c/o Terrence M. O’Neill, Esq. and Stephen R. Sarnoski, Esq.

Assistant Attorneys General, Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-091/FD/cac/1/14/2011