New FOI exemption poses a problem
Daul arrests would become, in effect, secret arrests
The state Senate last week approved legislation that, if enacted into law, would protect the identities of family violence under the Freedom of Information Act, exempting their names from public scrutiny when police reports are disclosed.
The legislation builds on existing exemptions for victims of sexual assault or risk of injury to a minor. But proposed language creates a problem when two parties are charged with family violence offenses.
When two parties are charged, a practice known as dual arrest, they are also both victims, meaning the language, as written, requires that calls police redact the names or other identifying information of the arrested parties.
That is essentially a secret arrest, and it conflicts with legislation the General Assembly adopted in 2015 to require that arrest records, including the name of those charged, be made public.
There’s good reason to require that names of arrested parties be made public: it’s an essential piece of information needed to maintain transparency in the court system. We cannot have accountability if we don’t have transparency.
Dual arrests are a problem in Connecticut, so much so that the General Assembly adopted, and then -Gov. Dannel Malloy signed into law, legislation aimed at reducing its prevalence.
The Connecticut Coalition Against Domestic Violence said in 2018 that 20 percent of family violence cases involve dual arrests, nearly triple the national average of 7 percent.
Although individual cases may warrant the arrest of multiple parties, studies have found that an over reliance of dual arrests can actually discourage victims of family violence from coming forward out of fear that they, too, will be charged with a crime.
This dual arrest law calls for police to identify “dominant aggressor” and arrest only that person when possible, but it provides no substantive restriction on a police officer’s discretion to arrest both parties.
Redacting the names of both parties because they are both defendants and victims would do nothing to reduce the rate of dual arrests. Instead, it would limit the public’s ability to point to cases where such an approach was excessive or unnecessary.
It also would prevent the public from determining if cases are adjudicated appropriately or if changes are needed in how family violence cases are handled.
Furthermore, the bill could lead to potential abuse when police officers are motivated to avoid disclosure. What accountability would there be if police officers were to make a dual arrest to protect a fellow officer or public official?
Accountability and transparency of government activity are cornerstones of a healthy and vibrant democracy. It’s why numerous court rulings, from as high as the U.S. Supreme Court, have upheld the public’s First Amendment right to access court proceedings as well as an array of records and documents.
The U.S. Supreme Court in Free-Enterprise Co. v. Superior Court of Riverdale County, California created a two-pronged test before denying the public’s access to court: Have proceedings previously been public and does the particular process in question benefit from public participation?
Redacting the names of arrest parties — information that is currently public — would prevent the public from participating in the judicial process, leading to the problems listed above.
The legislature should amend this bill to ensure the exemption doesn’t apply to arrested parties. Secret arrests are antithetical to an open and transparent judicial system.
Mike Savino is local and state news editor at the Record-Journal and president of the Connecticut Council for Freedom of Information.
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