The Police Have The Right To Remain Silent Too: The Supreme Court Rules On The Disclosure Of Police Reports Under The FOIA

by Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact

LR-municipalities_m_3439204The Connecticut Supreme Court has resolved an intense debate about what law enforcement agencies are required to release with regard to arrest records and associated reports. This decision  could affect the ability of school boards, municipalities and other public bodies to investigate employee and student misconduct.

The Court’s decision in Commissioner of Public Safety v. FOIC, 312 Conn. 513 (July 15, 2014) involved a matter in which a newspaper requested a copy of records concerning the arrest of an individual for allegedly assaulting an elderly person.  In response, the Department of Public Safety [“DPS”] sent the newspaper a copy of the official DPS press release pertaining to the incident.  The newspaper filed a complaint with Connecticut’s Freedom of Information Commission [“FOIC”], and the FOIC ordered DPS to disclose most of the actual police report.

The dichotomy between DPS’ position and the FOIC’s order arose from their differing interpretations of the Freedom of Information Act [“FOIA”], specifically Section 1-215 of the Connecticut General Statutes, which provides in part that “records of the arrest” of any person (other than those of a juvenile or where the record is “erased”) are public records that are subject to disclosure.  Conn. Gen. Stat. §1-215(a).  The FOIA goes on to provide, however, that a law enforcement agency could comply with this mandate merely by providing: (1) 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 (2) 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.  Conn. Gen. Stat. §1-215(b)(emphasis added). On its face, then, law enforcement could choose to comply with the FOIA by simply issuing a press release that provides minimal “police blotter” style information as opposed to the actual arrest or incident report, at least during the pendency of a criminal prosecution.  Gifford v. FOIC, 227 Conn. 641 (1993).

Despite this statutory language, the FOIC asserted that in addition to the disclosures required under Conn. Gen. Stat. §1-215, any other law enforcement records (for example, the actual reports, mug shots, documentary evidence) compiled in connection with the investigation of a crime must also be disclosed unless the law enforcement agency proves that disclosure would not be in the public interest because it would reveal (1) the identity of informants or witnesses whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (2) the identity of minor witnesses, (3) signed statements of witnesses, (4) information to be used in a prospective law enforcement action (if prejudicial to such action), (5) investigatory techniques not otherwise known to the general public, (6) arrest records of juveniles, (7) the name and address of the victim of a sexual assault, or injury or risk of injury, or impairing of morals of a child, or of an attempt thereof, or (8) uncorroborated criminal allegations subject to destruction.  See Conn. Gen. Stat. §1-210(b)(3).

The DPS appealed, and the Superior Court reversed the FOIC, concluding that DPS had satisfied the FOIA with its disclosure of the press release.  The Court found that DPS complied with the FOIA, as the press release included the above basic information required by law, and also included a two-paragraph narrative setting forth additional information about the arrest, which constituted a sufficient “news release” for FOIA purposes.  The Appellate Court agreed with the trial court, and in its July 15, 2014 decision, the Connecticut Supreme Court affirmed.  Looking to the legislative history to resolve any ambiguity, the Court agreed that Section 1-215(b) contains the exclusive disclosure obligation of law enforcement agencies with respect to documents relating to a pending criminal prosecution.  Additionally, following the conclusion of a criminal prosecution, law enforcement officials can still withhold disclosure of any such records, provided they satisfy the exemptions contained in Section 1-210(b)(3).

Why does this case matter (even if you are not with a police department)?

Generally, the courts and the laws provide for balance between public access to records and not jeopardizing criminal investigations.  However, the public status of arrest records is of interest not only to law enforcement officials trying to protect information in order to further the investigation and prosecution of crimes, but also to 1) employers wishing to investigate employee wrongdoing, and 2) school districts who may be in need of information related to student discipline issues. As a person involved in investigating — and assisting the response to — employee and student misconduct, I can attest to the value of the actual arrest and incident reports.  Sometimes, the parallel investigations of student or employee misconduct can be hindered by a law enforcement agency’s refusal to release them.  Fortunately, in the context of another statute governing police testimony at expulsion hearings, a school district may still be able to obtain the actual reports for production at the student disciplinary hearing. See Connecticut General Statutes §10-233h.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley - Labor, Employment and Employee Benefits Law | Attorney Advertising

Written by:

Pullman & Comley - Labor, Employment and Employee Benefits Law
Contact
more
less

Pullman & Comley - Labor, Employment and Employee Benefits Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.