Connecticut Court Wrongly Reduces Access to Information

18 July 2014

By James H. Smith

This article was first run July 15 in the Journal Inquirer and other Connecticut newspapers. Smith, a retired newspaper editor, is president of the Connecticut Council on Freedom of Information. For more not the ruling see article in The Day.

Why would seven judges decide that the police can keep information about crime secret from the public?

That’s essentially what the state Supreme Court did this month in the case of Commissioner of Public Safety v. Freedom of Information Commission.

Before becoming justices, four of the seven were either prosecutors or city attorneys, and one was an FBI agent — people not prone to informing the public. The justice who wrote the decision, Richard Robinson, worked as a lawyer for Stamford city government under Mayor Dan Malloy.

Justice Robinson wrote that the issue should be “squarely on the radar of the legislature” and he suggests that advocates of open government “pursue appropriate legislative remedies.”

That’s fine, but before making that recommendation the court reversed 20 years of precedent in Freedom of Information Commission decisions on what police must tell the public. If you think the answer lies in legislation, then why write a decision diminishing what the public can know about crime? Just hold off and let the General Assembly deal with the issue.

The court acknowledged that supporters of open government noted that brief information on a typical police blotter doesn’t generally reveal the race of someone who has been arrested, a detail that could shed light “on law enforcement practices that disproportionately target minorities.”

Justice Robinson seemed to ask: Why stop there? “The same interest,” he wrote, “might extend to information showing that an arrestee is an undocumented alien, or that individuals were exercising rights of free speech or assembly when arrested, or that an arrestee had an extensive criminal history, or … is in a position of public trust … or how a killer acquired weapons.”

Yes, these are the kind of things the public would want to know.

“Indeed, information of this kind is at least sometimes provided by the police,” Justice Robinson wrote. Yes, sometimes it is, but not under the court’s decision.

Justice Robinson thinks the issue is not whether something should be disclosed but “whether the decision about disclosure should be vested in the police” someone else. The court thinks it is up to the police.

Bad decision.

There are two seemingly contradictory sections of Connecticut’s freedom-of-information law. Essentially the court favored the section that allows law enforcement agencies to withhold all kinds of information. Section 1-215 initially required police to reveal only the name and address of the person arrested; the date, time and place of the arrest; and the offense. In 1993 the Supreme Court affirmed this law. So in 1994 the legislature amended it to require police to release more in the form of “at least one of the following, designated by the law enforcement agency: the arrest report, incident report, news release, or other similar report of the arrest of a person.”

The court has decided that 1-215 “exclusively governs law enforcement agencies’ disclosure obligations” and trumps the other FOI statute (1-210), which calls for “broader disclosure obligations.”

So no mug shots, no nothing, unless the police put it in a “press release.”

What is the court thinking? For one thing, according to Justice Robinson, “we deem plausible” the arguments of the state Freedom of Information Commission and “we also find reasonable” the state police department’s position. So what to do? You check out the legislative history.

Here is where the court erred. It found in the 1994 legislative debates “a very limited response” to the court’s narrow view in its 1993 decision on what police need to release. In fact, the legislature voted to require much more information from the police — a narrative, a report; not just name, rank and serial number.

Having convinced itself that the legislature’s action was small, the court went on to marginalize the more expansive section of the FOI law, even though Section 1-215 says “disclosure of data or information … shall be subject to the provisions of 1-210 (b) (3).” The court’s reasoning then dwindles to bunkum.

Section 210 is the heart of the FOI law, stating that “all records … shall be public records.”

That is where the legislature should begin to rectify this disastrous decision.

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