By Karen Florin
The state Supreme Court issued a ruling Monday that restricts the amount of information police are required to release about arrests, prompting fears among advocates of open government that the public will not have access to important information about crimes.
The unanimous decision in Commissioner of Public Safety v. Freedom of Information Commission was authored by Justice Richard A. Robinson. The court ruled that police are required only to release basic “blotter” information about arrests, including the name and address of the person arrested, the date, time and place of the arrest, the criminal charges and a news release or narrative of the arrest. Though police reports are considered public records, the police are not required to release them while a case is pending.
“It’s a great day for police departments who want to withhold information,” said attorney Daniel Klau, past president of the Connecticut Foundation for Open Government and supervisor of Yale Law School interns who filed a brief in the case on behalf of the Connecticut Council on Freedom of Information.
The decision means police only have to release the bare minimum about an arrest, Klau said. Other information, which may be of significant value, doesn’t have to be disclosed even if it does not in any way prejudice a law enforcement investigation, he said. Under the ruling, mug shots do not have to be disclosed, he said.
The case concerned New Haven Register reporter Michelle Tuccito Sullo’s efforts to obtain information from state police about a mentally ill man who attempted to kill his father in Derby in 2008. Sullo asked for a police report of the incident, but received only a press release containing the arrestee’s name, address and birthdate, the date, time and location of the incident and a two-paragraph description of the incident. The press release omitted key details of the case, including the victim’s name, his relationship to his attacker and where he was hospitalized.
Sullo appealed to the Freedom of Information Commission (FOIC), which upheld her complaint. The state appealed to Superior Court, where a judge ruled that the state had fulfilled its legal obligation. The FOIC took the case to the Appellate Court, which affirmed the lower court’s decision. The Supreme Court took up the case and heard oral arguments in January.
In deciding the case, the court reviewed a 1993 state Supreme Court decision in Gifford v. Freedom of Information Commission and a 1994 amendment to the state’s open records law passed by the General Assembly. The Gifford case held that law enforcement agencies must release only “police blotter” information while cases are pending. The legislative amendment required the release of additional information, such as an arrest report, incident report, news release or other similar report.
“The Supreme Court today said to the Commission, you’ve been doing it wrong for 20 years,” Klau said. “You’ve been misinterpreting what the legislature did.”
In the decision, the Supreme Court noted that balancing the various interests and articulating a coherent policy is a “uniquely legislative function.”
“The General Assembly retains the prerogative to modify or clarify (the law) as it sees fit,” the court wrote.
One of the legislators involved in the 1994 debate was now-Attorney General George Jepsen, whose office represented state police in the case. Jepsen responded to a request for comment with a written statement.
“Today’s decision provides needed clarity about the extent of law enforcement’s obligation to disclose arrest information,” the statement said. “As the Supreme Court’s opinion notes, the legislative debate 20 years ago — in which I took part as a state senator — sought to strike an appropriate balance among competing interests, resulting in a compromise bill. If policy priorities have changed, the legislature is always free to strike a different balance. I will always enforce the laws of the state of Connecticut, as is my responsibility as Attorney General.”
During oral arguments, attorney Victor R. Perpetua, arguing on behalf of the Freedom of Information Commission, had told the justices it is “never a good choice to give agencies a lot of power of unfettered discretion.” He said the FOIC was seeking to maintain the status quo in which it decides appeals in cases in which members of the media or public feel they have been wrongfully denied information.
Chief State’s Attorney Kevin T. Kane said he and others in his office are reviewing the ruling.
James H. Smith, president of the Connecticut Council on Freedom of Information, called Monday’s decision disappointing.
“On first reading, it seems too restrictive and I’m concerned it will lead police in too many cases to keep too much information about crimes secret,” Smith wrote in an email. “I had hoped the court was more attuned to transparency as good public policy.”
“As always, we will work with legislators to ensure as much information as possible is available to the public,” Smith said.
Klau said police departments still have discretion to release information even if it is not required.
“It very much depends on the police department,” he said. “I’m sure a PD like South Windsor would be forthcoming with a lot of this information.”
The CCFOI last month presented South Windsor Police Chief Matthew Reed with an award for his efforts to keep the public informed about crime.
But in Klau’s opinion, the decision doesn’t bode well for beat reporters covering communities like New Haven, which he said is notorious for not being forthcoming.
Also, Klau said, “My guess is that the state police will take full advantage of this ruling and will only give out absolute bare minimum except when it’s to their advantage.”