The General Assembly held a public hearing last week on Raised Bill 6750, An Act Expanding The Requirement For Disclosure Of Arrest Records During A Pending Prosecution Under The Freedom Of Information Act.
The bill seeks to overturn a Connecticut Supreme Court decision last year, Comm’r of Public Safety v. FOIC, which set aside the Freedom of Information Commission’s longstanding (20 years!) interpretation of a provision of the Freedom of Information Act concerning the release of records concerning arrests.
The Supreme Court decision was bad for openness and transparency, the proposed bill is good and the arguments against the bill are weak. The legislature should pass the bill and the governor should sign it.
What is all the fuss about? It’s fairly simple.
Since Gov. Ella Grasso signed the FOIA into law in 1975, it has included an important exemption, known colloquially as the “law enforcement exemption.” See General Statutes § 1-210(b)(3). That exemption allows law enforcement agencies to refuse to disclose records compiled in connection with the detection or investigation of a crime if, but only if, the disclosure of the record would not be in the public interest for one or more of seven reasons. Amongst other reasons, disclosure is not required if it would reveal the identity of an informant, prejudice a prospective law enforcement action or reveal records of a juvenile.
This is an important and necessary exemption. I support it, and the FOIC almost always defers to law enforcement agencies when they invoke the exemption.
So what’s the problem? The police, both state and local, want even more power to withhold documents concerning an arrest, even if the disclosure of the records would not cause any problem the law enforcement exemption exists to prevent. And they argue that they need this additional power to protect witnesses from harrasment and intimidation. But that power already exists under the existing law enforcement exemption.
This naked desire for ever more power to deny public access to law enforcement records is extremely disturbing.
Here’s what Raised Bill 6750 would actually do.
Since 1994, the FOIA has required the police always to release certain basic information about an arrest, so-called “blotter information:” Name of arrestee, date of arrest, the offense(s) allegedly committed, etc. Such records are not subject to any exemption.
However, for nearly 20 years the FOIC held that other law enforcement records of an arrest, beyond that basic blotter information, also had to be released unless they fell within the law enforcement exemption. In other words, blotter information constituted the absolute minimum information about an arrest – the “floor” – that law enforcement had to disclose. The law enforcement exemption constituted the “ceiling” on disclosure.
Then, last summer, the Supreme Court issued a decision rejecting that longstanding interpretation.
According to the Supreme Court, the FOIA allows the police to withhold additional records concerning an arrest, even if those records do not fall within the law enforcement exemption. The disclosure floor stayed the same, but the ceiling dropped down dramatically. Fortunately, the Supreme Court wisely invited the General Assembly to revisit that interpretation and consider amending the FOIA to restore the FOIC’s interpretation. In other words, the Supreme Court kicked the ball over to the legislature.
Raised Bill 6750 accepts the Supreme Court’s invitation. It merely seeks to return the law to the state in which it existed prior to the Supreme Court’s recent decision.
The FOIC’s interpretation of the law worked just fine for 20 years. It struck a proper balance between the public’s right to know how the police conduct their business and law enforcement’s legitimate need to keep certain information private. Raised Bill 6750 would restore that balance.
As I said, the legislature should pass the bill and the governor should sign it.
Dan Klau is the immediate past president of the Connecticut Foundation for Open Government and is a member of the board of the Connecticut Council on Freedom of Information.