Gifford v. Freedom of Information Com'n

• Decision Date: 04 May 1992
• Docket Number: No. 385103S,385103S
• Citation: 42 Conn.Supp. 291,617 A.2d 479
• Court: Connecticut Superior Court
• Parties: William J. GIFFORD et al. v. FREEDOM OF INFORMATION COMMISSION et al. * -New Britain, at Hartford

Page 479

617 A.2d 479

42 Conn.Supp. 291

William J. GIFFORD et al. v. FREEDOM OF INFORMATION COMMISSION et al. ^*

No. 385103S.

Superior Court of Connecticut,

Judicial District of Hartford-New Britain,

at Hartford.

May 4, 1992.

David J. Wenc, for named plaintiff.

Mary H. Lesser, Asst. Atty. Gen., for plaintiff Richard N. Palmer.

Constance L. Chambers, for named defendant.

Phelon, Squatrito, Fitzgerald, Dyer & Wood, for defendant Journal Inquirer.

Robert H. Boone, pro se.

SPADA, Judge.

The issue of first impression raised by this appeal is whether a police arrest/incident report is accessible during the pendency of a criminal prosecution. This court concludes that no right of access exists.

The plaintiffs are William J. Gifford, chief of police of the town of Windsor Locks, and Richard N. Palmer, chief state's attorney. Palmer was substituted as a plaintiff in place of John J. Kelly, formerly chief state's attorney. Palmer was found to be aggrieved and accordingly made a party to these proceedings. See Kelly v. Freedom of Information Commission, 221 Conn. 300, 603 A.2d 1131 (1992).

The defendants are the freedom of information commission (commission), a state agency, the Journal Inquirer, a newspaper with its primary circulation in eastern Connecticut, and Robert H. Boone, a Journal Inquirer news editor.

On September 12, 1989, the Windsor Locks police arrested two individuals who were distributing racist and anti-Semitic literature in front of a convenience store. One of the accused, a youth, was charged with possession of a dangerous weapon. The other, an adult, was charged with reckless endangerment.

On September 13, 1989, a Journal Inquirer reporter requested a copy of the police arrest report pertaining to these arrests. The police, on advice from the state's attorney's office, denied the reporter's request. The reason for the denial was pendency of the criminal prosecution. Boone thereafter filed a complaint with the commission charging the plaintiffs with a violation of General Statutes §§ 1-15 and 1-19(a).

The plaintiffs claim that the arrest/incident reports are exempt under General Statutes §§ 1-19(b)(3)(B), 1-19b(b), 1-20b, 1-19(b)(4), 1-19c and article twenty-third of the amendments to the Connecticut constitution. The complaint was heard on March 1, 1990. The plaintiffs' grounds for nondisclosure were: (1) to protect witnesses; (2) to protect juveniles and youthful offenders; (3) to facilitate additional investigations that may be initiated by the prosecutor's office; (4) to minimize unfavorable publicity to avoid a change of venue; (5) to preclude any prejudice caused by publication of a defendant's confession or admission; (6) to avoid publication of inadmissible evidence; and (7) conflicts with the rules of discovery of General Statutes § 54-86b and Practice Book §§ 746, 752 and 753.

On May 23, 1990, the commission adopted its hearing officer's report as its final decision. At a subsequent hearing held on July 30, 1990, where Kelly was accorded intervenor status, the issues were relitigated. Although the criminal prosecution was completed and the arrest/incident report released prior to the commission's final decision, the commission, on September 19, 1990, nevertheless determined that during the pendency of a criminal prosecution, police arrest/incident reports were accessible to the public under the Freedom of Information Act, General Statutes §§ 1-15 and 1-19(a). The commission determined that, except for the names and addresses of witnesses, police arrest/incident reports were not exempt from disclosure and ordered the police chief "to comply with the disclosure requirements of § 1-19(a)" and "cautioned the plaintiff to take care to comply with the law in the future or it may risk further consequences for its continuing disregard of the law."

The plaintiffs filed separate appeals. The issues were vigorously argued on February 10, 1992, and days subsequent. Subsumed in the dispositive issue are several subordinate issues, that need to be addressed.

The contention of the chief state's attorney and the division of criminal justice that its jurisdiction attaches upon an arrest is manifestly sound. "There shall be established ... a division of criminal justice which shall be in charge of the investigation and prosecution of all criminal matters." Conn. Const. art. IV, as amended by amend. XXIII. The division of criminal justice, whose administrative head is the chief state's attorney; id.; is constitutionally charged, upon every arrest, with the responsibility to investigate and prosecute the arrested person. A lynchpin of this charge in cases of warrantless arrests is the police arrest/incident report.

In matters of warrantless arrests, the police report is the incipient and most critical stage of the prosecution. The report determines whether a prosecutor (1) orders an additional investigation, (2) terminates a prosecution, (3) adds, reduces or substitutes criminal charges, (4) transfers the prosecution to a higher division, or (5) argues to lower or raise the bail bond, where applicable. The constitutional empowerment is replicated in General Statutes § 51-276: "There is hereby established the division of criminal justice ... which shall be in charge of the investigation and prosecution of all criminal matters in the superior court."

The raison d'etre of the police report is to prepare a record for action by the prosecutor. Records of the prosecutor are exempt from the Freedom of Information Act. "For the purposes of subsection (a) of section 1-18a, the division of criminal justice shall not be deemed to be a public agency except in respect to its administrative functions." General Statutes § 1-19c.

To conclude that the police report is not a prosecutorial record or is otherwise accessible is a conclusion repugnant to the constitutional and statutory mandates accorded to the division of criminal justice. Such a conclusion severely vitiates the lodestone of the prosecutor's arsenal against crime.

It is a distraction to contend that police departments are public agencies and are not agents of the division of criminal justice. To argue as the defendants do that the police must be declared agents of the division of criminal justice in order to trigger § 1-19c is a non sequitur. The preparation of the police report is solely a police responsibility. Once it is concluded and an arrest has been made, the jurisdiction of the division of criminal justice immediately attaches and the police report becomes the first record of the division in its prosecution of that particular case.

It is beyond dispute that the state's attorney and prosecutors control, direct and investigate criminal prosecutions. Where requested, the police are statutorily required to assist and cooperate with the division of criminal justice in discharging the obligations of the prosecution. General Statutes § 51-286(d) and (e). At the behest of prosecutors, the police undertake additional investigations, retain custody of the evidence, and testify as state's witnesses. In cases of warrantless arrests, the police arrest/incident reports are the incubation of the subsequent prosecutorial process. To order, as does the commission, that these reports become immediately accessible to the public would constitute a fatal compromise to the effective prosecution of crime.

The commission's position that each arrest report could be individually adjudicated to determine whether prejudice would ensue; see General Statutes § 1-19(b)(3)(B); ignores reality and guarantees gridlock to effective prosecution. "Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be construed to require disclosure of ... (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known, (B) information to be used in a prospective law enforcement action if prejudicial to such action...." (Emphasis added.) General Statutes § 1-19(b)(3)(A) and (B).

According to the 1990 annual report of the department of public safety--uniform crime reports--crime in Connecticut, there were 218,115 arrests in Connecticut in 1990. If it is assumed that the prosecution would raise the issue of prejudice in each case of warrantless arrests, the sheer volume of required hearings would render impotent two strategic public agencies of this state. A careful reading of § 1-19(b)(3)(A) and (B) leads to a conclusion that arrest/incident reports do not fall within its purview, that the statute's prejudicial balancing test speaks to an ongoing prearrest investigation, and that arrest/incident reports are "not otherwise available to the public."

General Statutes § 1-20b provides in relevant part: "[A]ny 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 1-15 and subsection (a) of section 1-19. For purposes of this section, 'record of the arrest' means 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."

Section 1-20b, is unambiguously referenced to police arrest/incident reports. In order for § 1-20b and § 1-19(b)(3)(B) to be read in harmony, it is essential that arrest/incident reports not be included within the latter's ambit. " 'It is a well-settled principle of construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.' " Charlton Press, Inc. v. Sullivan, 153 Conn. 103, 110, 214 A.2d 354 (1965)...