Gifford v. Freedom of Information Com'n

Decision Date07 September 1993
Docket NumberNos. 14682,14683,s. 14682
Citation631 A.2d 252,227 Conn. 641
CourtConnecticut Supreme Court

Ralph G. Elliot, with whom were Mitchell W. Pearlman, General Counsel, Victor R. Perpetua, Com'n Counsel, Hartford, Barry D. Guliano and, on the brief, James H. Howard, Manchester, for appellants (defendants).

Mary H. Lesser, Asst. State's Atty., for appellee (plaintiff John M. Bailey).

Eileen McGann, West Redding, and Mark Kravitz, New Haven, filed a brief for the Connecticut Daily Newspaper Ass'n et al. as amici curiae.


BORDEN, Associate Justice.

The issue in these appeals is whether a municipal police department arrest report must be disclosed by the police department to the public, pursuant to the Freedom of Information Act (act); General Statutes §§ 1-7 through 1-21k; while the criminal prosecution that is related to the arrest report is pending. The defendants, the freedom of information commission (commission), and the Journal Inquirer newspaper and its news editor, Robert H. Boone, appeal 1 from the judgment of the trial court. That judgment sustained the appeal of the plaintiffs, William H. Gifford and John M. Bailey, 2 from the decision of the commission. The trial court concluded that the commission had improperly determined that such an arrest report must be disclosed to the public during the pendency of the criminal prosecution. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On September 12, 1989, a police officer from the Windsor Locks police department was dispatched to a restaurant in that town to investigate a report of a disturbance between the owner of the establishment and two young males. The owner of the restaurant informed the officer that two young males, one of whom was known to him, had threatened him with a knife and had given him anti-Semitic and racist literature.

Shortly thereafter, the two males described by the owner were found nearby and transported to the police station for questioning. A witness 3 to the incident also went to the police station and confirmed the store owner's account of the events. The witness also stated that one of the males, William Landers, 4 had accused the store owner of selling drugs and had warned the owner that he "better watch this drug business." Both individuals were subsequently arrested on various charges. While being held for arraignment, Landers attempted to commit suicide. The investigating officer drafted an arrest report, dated September 12, 1989, that records these events.

The following day, a reporter from the Journal Inquirer requested a copy of the arrest report that had been prepared in connection with these arrests. William Gifford, the chief of police of the town of Windsor Locks, on advice from the state's attorney's office, denied the reporter's request for a copy of the report during the pendency of the criminal prosecution. Following the completion of the criminal prosecution that resulted from the arrest report, however, Gifford released a copy of the report to the Journal Inquirer.

The Journal Inquirer and Boone lodged a complaint with the commission claiming that Gifford's refusal to release the arrest report during the pendency of the criminal case violated General Statutes § 1-19(a). 5 In response, the plaintiffs claimed that arrest reports are exempt from disclosure 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. 6 Specifically, the plaintiffs contended that disclosure was not required by statute, and that nondisclosure was necessary: (1) to protect witnesses; (2) to protect juveniles; (3) to facilitate additional police investigations if requested by the state's attorney's office; (4) to minimize unfavorable pretrial publicity that would necessitate 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) to avoid conflict with the rules of discovery set forth in General Statutes § 54-86b and Practice Book §§ 746, 752 and 753. 7

Several witnesses testified at the administrative hearings on the complaint. First, Gifford testified that he had a long-standing policy of refusing to release arrest reports until the prosecution related to such a report was no longer pending. He testified that this policy was necessary to protect the identity of witnesses to the events culminating in the arrest, including the names of any police officers who were likely to be called to testify at trial.

Then chief state's attorney John J. Kelly testified that the standard practice if an arrest is made is for the police department to prepare an arrest report that details the investigation that led to the arrest, and then to forward a copy of the document to the appropriate state's attorney's office. This document then serves as the basis upon which the prosecutor may make future decisions regarding the case, and, in particular, determine whether further investigation by the police is necessary. Kelly also explained that a typical arrest report contains the summary of events that resulted in the arrest, the names and addresses of witnesses and victims of the crime, information given by such witnesses, and any further police action corroborating the allegations of witnesses. In addition, Kelly testified that if police departments were obligated to disclose such reports during the pendency of a criminal case, witnesses could be located and intimidated, the identity of victims of sexual assault or of youthful offenders might become public, and the defendant's right to a fair trial could be damaged by any resulting publicity.

Assistant state's attorney T.R. Paulding, who at that time was the supervising prosecutor for geographical area thirteen of the Hartford-New Britain judicial district, testified that a criminal case begins at the time of the arrest, and can be concluded only through a judicial resolution. He testified that the police report in this case had been used throughout the case for various purposes, including assessing the validity of the charges, determining the strategy to be employed in the case and establishing in court that there was probable cause to arrest the defendant. Paulding also testified that the release of the arrest report in this case, while the prosecution was pending, could have jeopardized the defendants' fair trial rights and could have resulted in witness or victim intimidation.

The commission concluded in its final decision on September 12, 1990, that, during the pendency of a criminal prosecution, an arrest report must be disclosed upon request to the public pursuant to General Statutes §§ 1-15 8 and 1-19(a) of the act. The commission stated that, except for the names and addresses of witnesses, such arrest reports were not exempt from disclosure and ordered Gifford to "comply with the disclosure requirements of § 1-19(a)." The commission also "caution[ed] [Gifford] to take care to comply with the law in the future or it may risk further consequences for [his] continuing disregard of the law." 9

The plaintiffs filed separate appeals in the trial court claiming that the commission had improperly concluded that the act required disclosure of an arrest report while the criminal prosecution is pending. The trial court sustained the plaintiffs' appeals concluding that: (1) pursuant to § 1-19c, the division of criminal justice (division), is not a public agency while engaged in the investigation and prosecution of a criminal case; (2) the jurisdiction of the division attaches at the time of arrest; (3) the arrest report, although compiled by police, is, upon its completion, a record of the division; (4) disclosure of an arrest report during the pendency of a criminal prosecution, without permission of the division, constitutes a violation of § 1-19b(b) and the specific statutory and Practice Book rules of discovery; (5) the premature release of an arrest report violates the rights of the division as a party to negotiations pursuant to § 1-19(b)(4); (6) § 1-20b limits the disclosure obligation regarding arrest reports to 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"; and (7) law enforcement records as contemplated in § 1-19(b)(3)(A) and (B) pertain to ongoing investigations and contemplated or prospective law enforcement proceedings such as an arrest to be made at a later date, and do not include already compiled arrest reports. Gifford v. Freedom of Information Commission, 42 Conn.Sup. 291, 300-301, 617 A.2d 479 (1992). 10 These appeals followed. 11

The commission claims that the trial court improperly concluded that the act does not require disclosure of arrest reports while the criminal prosecution is pending. We disagree. 12

At the outset, it is useful to note several principles that guide our resolution of the issue raised by these appeals. First, the facts of this case limit our discussion of the commission's claim solely to the issue of whether arrest reports must be disclosed during the pendency of the criminal prosecution. The facts of this case do not raise, nor do we need to decide, whether a police report of any kind must be released before an arrest is made, or whether an arrest report must be released after the criminal case to which the report relates has been fully adjudicated.

Second, we recognize, as a general matter, that "there is an 'overarching policy' underlying the [act] favoring the disclosure of public records. Chairman v. Freedom of Information Commission, 217 Conn. 193, 196, 585 A.2d 96 (1991); Hartford v. Freedom of Information...

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