Colleen Murphy ()
In an age of around-the-clock updates, news organizations want as much information as they can get.
Police agencies, however, worry that the release of too much information could interfere with their investigations. They don’t want every little detail of a crime available for public consumption too soon.
This delicate balance came to a head before the state Supreme Court which, to the dismay of freedom of information advocates, sided with police investigators who only want to release the most basic information about an arrest while prosecution is pending.
In a 7-0 decision, the justices ruled that state law allows police to limit public disclosures to the name and address of the person arrested; the date, time and place of the arrest; and the criminal charges. The justices said police also are required to release one of the following: the arrest report, incident report, news release or other similar document. Those requirements were part of a law passed in 1994.
Further, the court ruled in the decision written by Justice Richard Robinson that it is up to the legislature to decide whether the law needs to be changed.
“Given the continuing vigorous legislative debate on open government matters both in 1994 and today, we deem balancing the various interests and articulating a coherent policy on this matter to be a uniquely legislative function,” wrote Robinson.
The underlying matter before the court arose in 2008. The case involved a Shelton man, Toai Nguyen, who nearly beat his father to death on Route 8 in Derby with The Club, an auto antitheft device, while the father was driving him to a hospital. The State Police disclosed the blotter information and a two-paragraph news release of the attempted murder.
New Haven Register reporter Michelle Tuccitto-Sullo appealed to the state Freedom of Information Commission (FOIC) after the State Police refused to provide additional records. The FOIC sorted through the documents in the arrest file, and ordered some disclosed and others withheld. In some cases, they allowed documents to be released only if certain information was redacted, such as Social Security number and the home address of the arresting officer.
The State Police appealed the commission’s decision. The argument made to New Britain Superior Court Judge Henry Cohn was that as soon as the agency complied with the FOIA statute by providing a “record of arrest,” it then had complete discretion to decide which documents would be released to the public until the criminal case was over. Cohn sided with the police, as did a state Appellate Court.
In 2010, Nguyen pleaded guilty to a crime, and Tuccito-Sullo was finally given the records she sought. She used them to produce a series of articles highlighting little-known legal and immigration issues. The Shelton man turned out to be a Vietnamese immigrant who was not naturalized and was suffering from a long history of schizophrenia. U.S. Immigration and Customs Enforcement couldn’t deport him after the episode involving the beating because Vietnam refused to accept him back.
Nguyen was eventually able to plead guilty but also raised insanity defenses. With orders to take medication, he was released to his home, where he subsequently stabbed and critically injured his sister. He was found not guilty by reason of insanity and is now reportedly confined to the state’s Whiting Forensic Institute.
Meanwhile, the case was taken up by the state Supreme Court with oral arguments taking place in January.
The Connecticut Attorney General’s Office argued that State Police correctly followed the law and that the Freedom of Information Commission’s interpretation of the law was flawed.
Assistant Attorney General Terrence O’Neill argued to the justices that “it’s abundantly clear that it was critical to the legislature to vest with the law enforcement agency the discretion to decide what, if any, document should be released while the criminal case remained pending following an arrest.”
In 1993, Windsor Locks Police Chief William Gifford had a policy of not releasing arrest reports to the press or public on the rationale that this protected witnesses, informants and the fair trial rights of the accused.
After an incident involving a storekeeper being threatened with a knife, distribution of racist and anti-Semitic literature, and a suicide attempt by a suspect while in police custody, Gifford refused to release an arrest report. The Journal Inquirer newspaper in Manchester appealed, and the FOIC concluded Gifford’s nondisclosure was illegal.
The Chief State’s Attorney’s Office intervened in the appeal to New Britain Superior Court Judge Arthur Spada, who later became commissioner of public safety. Spada ruled the arrest record did not have to be disclosed as a public document under the FOIA because, after it was finished, it became a prosecutorial document beyond the reach of the freedom of information law.
In 1994, adopting “A Bill to Prevent Secret Arrests,” the legislature prescribed the new mandatory “record of arrest” disclosure requirements.
In light of the Supreme Court’s most recent ruling, media advocates worry that police will now refuse to release mug shots of suspects, details of allegations and other information that are now often disclosed before trials.
Colleen Murphy, executive director and general counsel of the Freedom of Information Commission, said officials at her agency were surprised by the Supreme Court’s ruling. She said the decision was one of several by the state’s appellate courts in recent years that have gone against the commission—and against disclosure of public documents.
“Law enforcement, of course, is one of the most powerful governmental entities with the most power over its citizens,” she said. “That’s always a concern: Who’s watching over that?”
Attorney General George Jepsen was pleased with the ruling.
“This decision provides needed clarity about the extent of law enforcement’s obligation to disclose arrest information,” said Jepsen. “As the Supreme Court’s opinion notes, the legislative debate 20 years ago—in which I took part as a state senator—sought to strike an appropriate balance among competing interests, resulting in a compromise bill. If policy priorities have changed, the legislature is always free to strike a different balance.”
Daniel Klau, who supervised a brief prepared by Yale Law School students on behalf of the Connecticut Council on Freedom of Information in the case, said it’s hard to predict the repercussions of the high court’s ruling.
“The impact will vary from town to town depending on the particular police departments,” said Klau, who practices at McElroy, Deutsch, Mulvaney & Carpenter in Hartford. “Some police department’s that have pro-FOI polices, like South Windsor, will release more than they’re required to when a reporter asks. Other departments that are sort of hostile to FOI, like the city of New Haven, will rely on the decision as grounds to only release the bare minimum.”
He added, “It is a step backwards for Connecticut because for 20 years the FOIC has interpreted [the statute] much more broadly.”•