Amici Curiae

S.C. 19047

DEPARTMENT OF PUBLIC SAFETY    :    SUPREME COURT

vs.                                                       :

FREEDOM OF INFORMATION             :

COMMISSION ET AL.                          :              JANUARY ___, 2013

APPLICATION OF THE CONNECTICUT COUNCIL ON FREEDOM OF INFORMATION, ET AL. FOR PERMISSION TO APPEAR AS AMICI CURIAE

Pursuant to Practice Book §§ 67-7, the Connecticut Council on Freedom of Information, joined by seventeen local, state and national media, journalist and open government organizations, and the American Civil Liberties Union, request leave to appear as amici curiae and to file a brief supporting the position of the Freedom of Information Commission (“FOIC”) that General Statutes § 1‑215 establishes a “floor,” not a “ceiling,” on the public records that local and state law enforcement officials must disclose concerning a pending criminal prosecution.

The proposed amici recognize that law enforcement authorities may have a legitimate interest in withholding certain documents during a pending investigation.  However, proposed amici believe that the proper construction of the Freedom of Information Act (“FOIA”) requires the authorities to justify such withholding by satisfying the requirements of § 1-210(b)(3) or other relevant exemptions.  A blanket exemption covering all documents except “police blotter” or “record of arrest” information while a prosecution is pending is contrary to the public interest.

I.          Brief History of the Case.

On May 2, 2008, Michelle Sullo, a staff reporter for The New Haven Register, filed a Freedom of Information Act (“FOIA”) complaint with the FOIC against the plaintiff State Police.  She alleged that the Connecticut State Police refused to provide copies of any reports concerning a March 15, 2008 arrest for first-degree assault on an elderly person and criminal attempt to commit murder.

The requested records consisted of signed witness statements, narrative reports, examination reports, photography reports, and medical logs, among other reports and documents related to the incident.  The FOIC agreed that the signed witness statements, the residential address of an officer contained in the reports, and personal medical information concerning the arrestee, were exempt from disclosure by Conn. Gen. Stat. §§ 1-210(b)(3)(B), § 1-210(b)(2), and § 1-217, exemptions to the FOIA.

However, the FOIC rejected the State Police’s broader claim that mere disclosure of the “record of the arrest” or “police blotter” completely satisfied all of the plaintiff’s disclosure obligations under the FOIA.  Instead, the FOIC concluded that the State Police were required to make a factual and legal showing that the remaining records were exempt from disclosure under § 1-210(b)(3).  Applying the broad exemption contained in § 1-210(b)(3)(C) to all the remaining police records requested in this case, the FOIC found that the State Police had not made a factual showing that any harm would result from the records’ disclosure.  Accordingly, the FOIC ordered the State Police to disclose the records that were not exempt under §§ 1-210(b)(3)(B) (witness statements), § 1-210(b)(2) (personal medical information), and § 1-217 (residential addresses of officers).

The State Police appealed the FOIC’s decision to Superior Court, which, without finding any ambiguity in the actual text of the statute, concluded that the meaning of § 1‑215 was ambiguous.  The trial court did not examine the portion of § 1-215 that makes all arrest records other than the blotter information or “record of the arrest” specifically subject to § 1-210(b)(3). Resorting to legislative history, the court then concluded that § 1-215 barred disclosure of all records except police blotter information.

The FOIC appealed that decision to the Appellate Court, which found error in the portion of the Superior Court decision that found ambiguity in the statute.  However, the Appellate Court then concluded that the plain meaning of the statute nonetheless precluded the disclosure of anything beyond police blotter information during the pendency of a prosecution.

This Court granted the FOIC’s petition for certification to appeal the following issue: “Did the Appellate Court properly determine that, during a pending prosecution, General Statutes § 1-215 and General Statutes § 1-210(b)(2) and (b)(3) require only the disclosure of the police blotter information of General Statutes § 1-215(b)(1) and an additional piece of information contained in General Statutes § 1-215(b)(2), and that the news release disclosed by the department met the requirements of the statute?”

II.         Specific Facts Relied Upon: Interest of Amicus Curiae

Proposed amici are local, state and national media, journalist, open government and civil liberties organizations that have a longstanding interest in ensuring that the public has access to documents and information concerning pending criminal prosecutions.  Access to such information serves multiple salutary purposes, including, but not limited to, assisting law enforcement in solving crimes, informing the public about ongoing criminal investigations and prosecutions, and enabling the public to evaluate the performance and quality of law enforcement officials and investigations.

A.        Proposed Open Government Amici

The open government organizations seeking permission to appear as amici include: the Connecticut Council on Freedom of Information (“CCFOI”) and the Connecticut Foundation for Open Government (“CFOG”).  The mission of the CCFOI is to promote, preserve and protect the public’s access to government in this state and in its municipalities and to uphold the constitutional principles of freedom of the press.  Similarly, CFOG is dedicated to promoting the open and accountable government essential in a democratic society. It seeks to achieve this by educating policymakers and citizens in general on the need for a free flow of information on all public policy matters.

            B.        Proposed Media And Journalist Organizations

The proposed media and journalist organizations requesting permission to appear as amici include: Associated Press, Bristol Press, Lakeville Journal, Manchester Journal-Inquirer, Meriden Record-Journal, The Day of New London, The Middletown Press, New Britain Herald, New Haven Register, Norwich Bulletin, Norwalk Hour, Torrington Register-Citizen, Waterbury Republican-American, Radio and Television News Directors’ Association, Connecticut Chapter of the Society of Professional Journalists, and the Connecticut Daily Newspaper Association.

            C.        Proposed Civil Rights Amici

The American Civil Liberties Union.

III.        Legal Grounds Relied Upon: Reasons for Granting Motion to Appear as Amici

Practice Book § 67-7 governs the requirements under which this Court may grant permission to amici curiae to appear in an appeal and to file a brief.  The proposed amici respectfully submit that this case is an appropriate one for just such an exercise of this Court’s discretion.

Respectfully submitted,

By                                                       

Daniel J. Klau

McElroy, Deutsch, Mulvaney

& Carpenter/PH, LLP

One State Street – 14^th Floor

Hartford, CT 06103-3102

Telephone:  (860) 522-5175

Facsimile:  (860) 522-2796

Juris # 101812

CERTIFICATION OF SERVICE

            I hereby certify that a copy of the foregoing was mailed on January ___, 2013, postage prepaid, to all counsel of record and pro se parties as follows: