The Freedom of Information Act amendment requires the police agency to provide at least one of the following: an arrest report, incident report, news release or some similar report of the arrest.
For decades, police reports about crime, and the steps taken to fight it, have been the lifeblood of community news reporting. Reporters assigned to the “cop shop” have made regular pilgrimages to police stations to skim the blotter and then ask for additional information on any incident that caught their eye.
Now there’s renewed debate on exactly how much information police are obligated to release. It’s a discussion that predates the Newtown school tragedy and the battle over 911 tapes and crime scene photos. It affects much more basic information: records of arrests and details of the alleged misdeed.
The debate reached a crescendo of sorts last week, as a lawyer for the Freedom of Information Commission and an assistant attorney general, representing State Police, squared off in the state Supreme Court. At issue were two sections of the state Freedom of Information Act, §§1-210 and 1-215, which govern police records.
And at the end of the day, it appeared that the justices were skeptical of a legal theory that would give prosecutors and police departments complete discretion on how much information they have to release about a criminal case, once they have released the basic “police blotter” facts of the arrest.
Chief Justice Chase Rogers told Assistant Attorney General Terrence O’Neill that the state’s interpretation seems like a “strained” reading of the two statutes.
The arguments were the first Supreme Court review of a 20-year-old amendment to the Freedom of Information Act (FOIA). In response to a controversial 1993 decision, Gifford v. FOIC, the General Assembly in 1994 amended the law to require law enforcement agencies to provide a relatively bare bones “record of arrest.”
The “record of arrest” amendment is §1-215 of the FOIA. It specifically requires release of the name and address of the person arrested; the date, time and place of arrest; and the offense charged. It also requires the police agency to provide at least one of the following: an arrest report, incident report, news release or some similar report of the arrest.
O’Neill contended that the legislature’s decision to give law enforcement agencies the power to designate which reports to include in the “record of arrest” release make the case off-limits to further review by the Freedom of Information Commission (FOIC), until after the criminal case concludes by plea or trial.
The FOIC disagrees. It cites §1-210 of the FOIA, which begins by stating that police agency reports are normally public records. It then goes on to list seven exemptions: Police can withhold names of confidential informants, signed witness statements, information that would harm a prospective law enforcement action, exotic investigative techniques, juvenile records, names of sex crime victims and uncorroborated allegations.
Victor Perpetua, the lawyer for the FOIC, told the justices that for the past 35 years, police have had to cite some exemption to withhold requested police records, and to explain their position in an FOIC hearing if the requesting party appeals. He said that standard should still be in effect.
He emphasized that the FOIC isn’t demanding the release of certain types of records, but is only asking that police be required to provide a legitimate rationale for nondisclosure.
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 that involved a storekeeper being threatened with a knife, distribution of racist and anti-Semitic literature, and a suicide attempt while in police custody, Gifford refused to release an arrest report. The Journal Inquirer newspaper appealed, and the FOIC concluded Gifford’s nondisclosure was illegal.
The Chief State’s Attorney’s Office intervened in the appeal before 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 §1-215 of the FOIA.
Perpetua readily conceded that State Police provided the “record of arrest” in this case. But he disagreed that this action automatically gave the State Police sole authority to decide what’s exempt and what’s public record until after the conclusion of the criminal case.
The underlying matter before the Supreme Court arose in 2008. A Shelton man, Toai Nguyen, 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 press release narrative of the attempted murder.
New Haven Register reporter Michelle Tuccitto-Sullo appealed to the FOIC after the State Police refused to provide additional records. The FOIC sorted through the documents in the file, and ordered some disclosed and others withheld or redacted of information, such as Social Security numbers and the home address of the arresting officer.
On appeal to New Britain Superior Court Judge Henry Cohn, the State Police argued that as soon as they complied with §1-215 of the FOIA and provided a “record of arrest,” they 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 panel.
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 that highlighted 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. The federal Immigration and Customs Enforcement office couldn’t deport him after the episode involving the beating in the car because Vietnam refused to accept him back.
He 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.
In his arguments to the Supreme Court justices, O’Neill, the assistant attorney general, urged them to look at §1-215 anew, and to give no weight to the long history of the FOIC deciding whether police records are exempt or public record on a case-by-case basis.
Instead, O’Neill argued that the amendment “stands for the proposition that the law enforcement agency that possesses the record of the arrest has the discretion to determine what can and should be released.”
As long as the “blotter” information is provided unredacted, along with a press release, “then law enforcement has the discretion to decide what, within that universe of documents defined as the ‘record of arrest’ can be disclosed, as long as that arrest remains pending.”
O’Neill further argued 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. I respectfully submit that it’s everyone’s job in this case to try to determine what the legislature intended.”
Neither Chief Justice Rogers nor Justice Dennis Eveleigh agreed that the “record of arrest” amendment in §1-215 could be read separately from the “seven exceptions” language of §1-210. Eveleigh wanted to know how the “record of arrest” amendment could be read standing alone, when it specifically referred back to the seven exemptions in §1-210.
At another point, Justice Andrew McDonald asked whether the case boiled down to a question of whether the documents would be released earlier or later. Perpetua, the FOIC lawyer, took a moment to reflect and responded that, under the State Police interpretation of the statute, the records could be unavailable indefinitely.
An amicus brief prepared by three Yale Law School students in a media rights project, supervised by Daniel Klau of McElroy, Deutsch, Mulvaney & Carpenter, noted that the current interpretation of the law could end up in the permanent withholding of important information. After all, the group argued, there have been important cases where an arrest has been made, yet no prosecution is in the works.
Citing the brief, Perpetua noted the unsolved murder of Yale student Suzanne Jovin in 1998. Perpetua also argued that the public has interests in case file data that is irrelevant to any specific prosecution. As an example, he cited research on racial profiling, immigrant sweeps, and records of injuries to officers or others.
After the close of the arguments, O’Neill declined to comment.
Colleen Murphy, counsel and executive director of the FOIC, said simply, “This has been a good day.”•