In the Matter of a Request
for Advisory Opinion



     Advisory Opinion   #74

Chairman, Connecticut Council on Freedom of Information, Applicant





On January 25, 1989, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Chairman, Connecticut Council on Freedom of Information.


In his request, the applicant seeks the Commission's opinion as to whether the contents of a form letter on the stationery of the Chief State's Attorney accurately reflects the applicable law. The applicant states the letter ignores and misinterprets freedom of information (FOI) and other laws and attempts to ascribe to law enforcement agencies a "broad‑brush" exemption allowed only to prosecutors. Perhaps most significantly the applicant is concerned the letter in question will continue to be used by law enforcement agencies in inappropriate circumstances as justification for withholding public records that otherwise would have to be disclosed under provisions of the FOI Act.


The letter in question is addressed generically to the hearing officer in a Commission proceeding (the designation of which is to be filled in by the subscribing prosecutorial authority). It then states there is a pending criminal case and the Division of Criminal Justice (DCJ) does not authorize the disclosure of information in police files concerning that case for essentially three reasons: (1) the claimed preeminence of court discovery rules; (2) the statutory exemption in the FOI Act for the DCJ; and (3) certain FOI Act exemptions to the disclosure of public records.


It is the Commission's opinion the contents of the letter in question does not accurately reflect the applicable law. The remainder of this opinion will address what the Commission specifically believes to be in error in the letter as well as the likely consequences of these errors.




The letter in question notes Conn. Gen. Stat. §51-14 authorizes the Superior Court judges to promulgate rules of practice and procedure in the state courts. It also notes the judges have done so with respect to discovery in criminal cases, citing Conn. Prac. Book §§731‑805. The letter then asserts this statute and the rules authorized by it operate as an exception to the FOI Act under Conn. Gen. Stat. §1-19(a), which provides in pertinent part:


[e]xcept as otherwise provided by any...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 ... or to receive a copy of such records....


In addition, State v. Clemente, 166 Conn. 501 (1974), is given as authority for the general supersedence of the practice book discovery rules over the disclosure provisions of the FOI Act. Clemente established the Superior Court has certain inherent constitutional powers to make its own rules of practice and procedure.


In resolving this issue, however, the drafter of the letter in question missed the key court decision. In Steadwell v. Warden, 186 Conn. 153, 162‑163 (1982), the Supreme Court ruled a record created by the judicial branch, but in the custody of an executive branch agency, ceases to be subject to the practice book and the court's power to govern disclosure. The reason for this holding is the very separation of powers doctrine at the heart of the Clemente case. Steadwell at pp.162-163. Thus statutes governing disclosure of executive and legislative branch records control over conflicting practice book rules.


But this does not end the Commission's inquiry. As the letter points out, Conn. Gen. Stat. §1-19b(b)(1) provides in pertinent part nothing in the FOI Act "shall be deemed in any manner to...affect. the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state...."


The precise meaning of this provision is unclear. For example, in the absence of a court ruling concerning a discovery request, it is often difficult to predict whether disclosure under the FOI Act would "affect" the rights of the parties. "Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed...." Board of Trustee v. FOI Commission, 181 Conn. 544, 550 (1980). And in the case of the FOI Act it must be construed broadly and liberally in favor of access to public records. Id. 


It is the Commission's opinion §1-19b(b)(1) should be interpreted to foster a policy of comity in cases in which records are, or may be, requested under the discovery rules of another tribunal and also requested under the disclosure provisions of the FOI Act.  By avoiding matters already in court or before other administrative tribunals, and which are more appropriately decided in those forums, the Commission will avoid the possibility of conflicting decisions. In this way, the Commission believes it will give effect to the legislative intent behind enactment of §1‑19b(b)(1).


Accordingly the Commission ordinarily will decline to decide a matter under the FOI Act where the parties are engaged in litigation or an administrative proceeding and it would be more appropriate for that tribunal to decide the matter under its discovery rules. On the other hand, the Commission ordinarily will decide any FOI case under its primary jurisdiction where the parties, or their surrogates, are not engaged in pending litigation or administrative proceedings subject to discovery rules.


It is therefore the Commission's opinion the letter in question is in error in stating court discovery rules in criminal cases generally supersede the disclosure provisions of the FOI Act. Only in cases in which the Commission declines to exercise its jurisdiction under its interpretation of Conn. Gen. Stat. §1‑19b(b)(1) will discovery rules generally supersede such disclosure provisions.




The letter in question also asserts the broad exemption granted to the DCJ under Conn. Gen. Stat. §1‑19c, by implication, governs police records compiled in connection with a criminal investigation or prosecution. That statute provides, for purposes of the FOI Act, the DCJ "shall not be deemed to be a public agency except in respect to its administrative functions."


It is the Commission's opinion the letter's contention in this regard is utter nonsense. The statute is clear and unambiguous and not subject to any unstated implication. State v. Burns, 194 Conn. 469, 472 (1984).  Indeed if the legislature intended what the letter asserts, there would have been no need for the legislature to have enacted Conn. Gen. Stat. §1‑19(b)(3) (the general exemption for law enforcement agency records compiled in connection with the detection or investigation of crime) and a myriad of other statutes providing for the confidentiality of specific law enforcement records.


Likewise the letter's assertion that the DCJ has the power to deem confidential any records not subject to the criminal rules of discovery is equally ridiculous. Neither Article XXIII of the Amendments to the Connecticut Constitution, Conn. Gen. Stat. §§51‑277(a) and (b), or any other provision of law implies, let alone expresses explicitly, such a power, or even anything remotely like it. If any provision of law did, it would have rendered meaningless not only §1-19(b)(3) and the other statutes providing confidentiality for specific law enforcement records, it would have rendered meaningless §1-19c itself.



Primary rules of statutory construction state a statutory scheme must be considered "as a whole, giving effect to every section, and assuming no word or phrase to be superfluous" and where more than one statute is involved it is presumed "the legislature intended them to be read together to create a harmonious body of law." Berqer v. Tonken, 192 Conn. 591, 589-90 (1984). See also State v. FOI Commission, 184 Conn. 102, 107 (1981).



            The letter's absurd contention the DCJ somehow has the implied power, under its general prosecutorial authority, to make confidential the records of other agencies simply ignores the language of the provisions cited in the letter in question. It also violates the primary rules of statutory construction stated above. Furthermore it would substitute the judgment of individual prosecutors for that of the legislature in creating and defining the limits of public disclosure under the FOI Act. It is the Commission's opinion that such a position is antithetical to the concept behind the FOI Act and the commission will not be governed by it in the absence of a clear legislative direction to do so. In this regard, see remarks of Sen. Baker at 24 S. Proc., Pt. 2. 1981 Sess., pp.348‑49, to the effect it is for the legislature alone to determine whether there is a superior interest in confidentiality that should override the disclosure provisions of the FOI Act.




Finally the letter in question leaves space for the subscribing authority to assert certain statutory exemptions to disclosure contained in the FOI Act itself, specifically Conn. Gen. Stat §§1‑19(b)(3) and (4). §1‑19(b)(3) exempts from disclosure some law enforcement agency records and §1‑19(b)(4) exempts:


records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled....


Obviously to the extent any exemption to the disclosure provisions of the FOI Act is applicable and available to a party before the Commission, it will be considered. However it is generally for the agency to which a request for public records is addressed to assert an exemption to disclosure, not another agency. A person, or another agency for that matter, cannot prevent the agency having custody of a record from disclosing it pursuant to Conn. Gen Stat. §1-19(b). See, for example, Chrysler v Brown, 441 U.S. 281 (1979). Likewise §1-19(b)(4) exempts from disclosure only the strategy and negotiations records of an agency which itself is a party to a pending claim or litigation.  If such records are maintained by and requested from some other independent agency, they ordinarily would not be exempt.


Thus it is the Commission's opinion it is generally irrelevant in determining an FOI complaint against a police agency whether a prosecutor does or does not authorize disclosure of the information in the police agency's files. It is for the respondent agency itself to assert and prove any exemption available to it under the terms of that exemption. Of course if the DCJ is the object of a complaint to the commission, it can offer as a defense any exemption which is specifically available to it.




The Commission notes that in several of its contested cases the letter in question, or its contents, have been used by police agencies as a basis for denying citizens access to public records. The Commission therefore shares the applicant's concern the letter, or its contents, may be used by law enforcement agencies in inappropriate circumstances to withhold public records that otherwise should be disclosed under the provisions of the FOI Act


For this reason the Commission cautions law enforcement agencies it will not accept the existence of the letter in question, or its contents, as "reasonable grounds" for a violation of the FOI Act, except as provided in this opinion. Consequently a violation of the FOI Act based on the letter, or its contents, may subject responsible agency officials to the imposition of a civil penalty under Conn. Gen. Stat. §1‑21i(b).






                                                                                            By Order of the Freedom of
                                                                                            Information Commission


                                                                                            Curtis Cofield, Chairman of
                                                                                            of the Freedom of Information

Dated: ___________________


Ordered: _________________

Karen J. Haggett
Clerk of the Commission