In any community in America, police incident reports are at the center of the media’s hard news coverage, providing an ongoing record of where criminal events are flaring up, and who’s involved.
Having more detail is like having a sharper sixth sense.
In Connecticut, this sixth sense is impaired.
As it stands, police departments are wildly uneven when it comes to revealing what they have been doing on the taxpayers’ dime. Some departments disclose plenty of details. But others are tight as clams. In a state Supreme Court decision officially released in mid-July, this bad situation just got worse.
In Commissioner of Public Safety v. FOIC, the Freedom of Information Commission had ruled that a newspaper could have access to police reports so long as the records didn’t fall under any of the seven categories of law enforcement exemptions, listed in the statutes.
But the high court reversed the FOIC, and concluded that the State Police could withhold reports, on the theory that they had released all they needed to long before, when they had issued a press release and the “police blotter” facts of who was arrested, where the arrest occurred and the legal charges involved.
This battle goes back to the 1993 case of Gifford v. FOIC.
Windsor Locks police chief William H. Gifford had a policy of withholding reports from the public and the media. His reasoning was that this preserved trial rights, and the privacy of informants and victims. But the notion that a person could be secretly arrested in Connecticut shocked and offended journalists at the Manchester-based Journal Inquirer, among others.
The paper challenged Gifford’s practices at the Freedom of Information Commission. The FOIC, in turn, ordered Gifford to release the incident report, sanitized of exempt material. Gifford didn’t want to release anything at all. When he appealed the FOIC decision, a divided state Supreme Court held he had no duty to release an arrest or incident report.
In the next session, lawmakers reversed the effects of Gifford by requiring the release of a “record of arrest” as a public document.
This can be an arrest report, an incident report, or even just a press release, plus the “blotter” facts.
Inexplicably, the Gifford majority decision never discussed the seven categories of material in the law enforcement records exemption. These include the identity of secret witnesses and informants, signed witness statements, information to be used in a future law enforcement action, juvenile arrests and sex assault victims’ identities. This left unanswered an important question. Even after a minimalist compliance by press release and blotter facts, couldn’t the real arrest record be obtained under FOI, if redacted of the seven FOI exemptions?
Ever since the 1994 Gifford “cure,” the FOIC has answered that question with a yes.
The FOIC viewed the 1994 Gifford case as the floor of what had to be released. Other police records, it reasoned, were available, subject to the police record exemptions.
Now, in a surprising decision that came as a blow to the press and open government advocates, the high court found that the 1994 legislative “cure” – the minimalist press release solution—constituted everything the police had to provide until the case was over.
The court is sending the issue back to the legislature. Writing for a unanimous court, Justice Richard Robinson concluded: “Given the continuing vigorous 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.”
More than the bare minimum “blotter” information is necessary to monitor racial profiling, or, for example, to gain insights like the FBI investigation of false arrests and other abuses against the Latino community by the East Haven Police Department.
In the New Haven Register’s case underlying this latest Supreme Court decision, a complex story came to light years after the 2008 arrest, and exposed troubling flaws in current immigration and mental health policies. The documents were released, but only after the case was concluded.
If the citizenry and the media have to wait until the resolution of every case before obtaining detailed information about police incidents and arrests, any real public accountability is lost.
Lawmakers, too, shouldn’t have to wait years to hear of the cutting edge legal issues that should be commanding their attention.
The General Assembly needs to rise to this challenge. •