Pearlman: Citizens need more information, not less –

Last year, the Connecticut Supreme Court overturned some 20 years of Freedom of Information law when it concluded that police departments need only disclose a bare minimum of arrest information (name, address, date, time and charges) pending prosecution.

This ruling applies even if other arrest information is not exempt from public disclosure. The Supreme Court majority itself, however, recognized that its tortured reading of the law is in need of legislative clarification.

House Bill 6750 is now wending its way through the General Assembly.

The bill was introduced to reestablish the law that existed prior to the unfortunate Supreme Court decision.

The bill passed through the legislative committee dealing with Freedom of Information in good fashion. It was then sent to the Judiciary Committee where, at the urging of the Chief State’s Attorney, it was amended to negate the original intent of the bill and, in essence, would codify into law the Supreme Court’s ruling.

As one who has been working in the field of government transparency and accountability for over 40 years, I am not exaggerating one iota when I say that failure to enact House Bill 6750 as originally proposed will be one of the final nails in the coffin of open government in Connecticut.

Ironically, Connecticut had been considered one of the enlightened pillars of good government, but unfortunately, of late it has earned a reputation as one that tolerates corruption and governmental misconduct. This is a stain on the entire state and an embarrassment to all of us who call Connecticut home.

Because government gives its law enforcement agencies monopoly power over the use of force and incarceration, they pose one of the greatest threats to a democratic form of government, if and when that power is misused or abused.

The aftermaths of the tragic killings of minorities by police officers — fueled by a lack of public information about those killings — in Florida, Missouri, New York, California, Wisconsin, and now in Baltimore, illustrate how police, prosecutorial, and indeed judicial secrecy has led to the widely-held perception, particularly in minority communities, of official government cover-ups of police misconduct.

Connecticut has not been immune to such cases of police misconduct. Racial profiling and the excessive use of force have been issues here for decades.

Some have come to light only because civilians saw and recorded what transpired. Such episodes have led to a general distrust of, and a lack of confidence in, not only our law enforcement agencies, but all of the institutions of government — something public opinion polls report consistently.

Provisions in the Freedom of Information Act permit a police department to withhold any record or photograph whose disclosure would prejudice a prospective law enforcement action, endanger witnesses, or reveal secret investigatory techniques pending a public trial that may never occur, especially if it involves police misconduct.

As originally drafted, House Bill 6750 would require that during the pendency of a criminal prosecution, a law enforcement agency must disclose at least basic police blotter information, without redaction.

All other records about the arrest would be subject to disclosure unless they fall within the Freedom of Information Act’s very specific and categorical non-disclosure provisions dealing with law enforcement agencies.

House Bill 6750, in the form passed by the legislature’s Government Administration and Elections Committee, strikes an appropriate balance between protecting transparency and accountability in government, on the one hand, and preserving the integrity of pending prosecutions on the other.

The bill as amended by the Judiciary Committee does not. It simply would permit law enforcement agencies to keep secret virtually any information they choose without reference to the specific exceptions to disclosure actually set forth in extreme detail in the Freedom of Information Act itself.

It would eliminate a two decade old, time-tested system for determining what information must be disclosed and what may be withheld from the public pending a criminal prosecution.

Without the bright line rule that would be re-established under the original draft of the bill, it is far more likely that corruption and misconduct will remain hidden from public view.

And, unfortunately it will become much more likely that the public’s mistrust of our law enforcement institutions and officers will continue to erode and lead to the consequences we so recently witnessed elsewhere.

Mitchell Pearlman, from 1975 to 2005, was executive director and general counsel of the Connecticut Freedom of Information Commission.

Editorial: Government Openness Dealt Another Blow – Hartford Courant

That rumble you hear is Ella T. Grasso turning over in her grave in disgust at the damage today’s public officials are doing to the cherished concept of open government that she and lawmakers of her time bequeathed to the state.

“Secrecy in government is inherently inconsistent with a true democracy,” declared the preamble of the landmark Freedom of Information Act signed by Gov. Grasso in 1975. Those proud FOIA pioneers who put Connecticut at the forefront of government transparency would be aghast at how much secrecy clouds the public sphere today and how much trickery is used to advance secrecy’s cause.

Many public officials — legislators, prosecutors and the police — simply find it inconvenient to trust the public with the truth.

The leading immediate battle in the fight against secrecy centers on House Bill 6750, which began life this session as a means to reverse a bad state Supreme Court decision.

The justices had, in their decision last year, severely restricted the amount of information that police departments are required to disclose about arrests to so-called blotter information and either an incident report or a press release. Under the court decision, police would not be required to release such vital information as the increasingly important footage from body cameras — information that holds clues as to whether law enforcement officers are doing their jobs properly and with respect for civilians.

House Bill 6750 as originally written was indeed a good antidote to the Supreme Court’s suffocating restrictions. It would have required that all arrest records be open to the public unless they are exempted for reasons already covered by law, such as to protect the identity of informants or to avoid prejudicing a prosecution.

The bill passed the government administration and elections committee comfortably — only to be bastardized in a surprise move by the judiciary committee. Judiciary, at the behest of Chief State’s Attorney Kevin Kane, rewrote House Bill 6750 to restore the court’s meager disclosure requirements.

This is disgraceful. The disclosure of arrest records is needed to hold the police — in important ways the most powerful of government agencies — accountable and to elevate the public’s trust in government.

Mr. Kane and transparency advocates talk of negotiating a compromise. But HB 6750 should be restored to its original wording and passed by the General Assembly.

Lawmakers Seek Compromise on Access to Arrest Records –

Less than a year after the state Supreme Court ruled that police could withhold arrest information while criminal prosecutions are ongoing, lawmakers are reviewing a bill that would essentially undo that decision.

The bill before the legislature, H.B. 6750, would require police to disclose the “record of arrest of any person” as well as “any other public record that pertains to the arrest,” regardless of whether a prosecution is pending.

The court had maintained that police are required to release only basic information about arrests during pending investigations. At the same time, the ruling effectively eliminated the appeals process [Read More]

Let the sun shine: Pass Raised Bill 6750 – The Lakeville Journal

By Dan Klau

The Connecticut 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 Governor Ella Grasso signed the FOIA into law in 1975, the FOIA has included a very 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 to the FOIA. I support it, and the FOIC almost always supports 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. This naked desire for even 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 to always 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 Connecticut 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, but it bears repeating: The Legislature should pass the bill and the governor should sign it.

Dan Klau is a Hartford-based attorney whose practice focuses on appellate and First Amendment litigation. He is an adjunct professor at the University of Connecticut School of Law.

To know, or not to know? – The Lakeville Journal Editorial

Every recent legislative session in Connecticut has brought another challenge to open information that is both meaningful and dangerous for those who care about governmental accountability. This time, one of those is the need to reverse the state Supreme Court decision in 2014 that changed the amount of information that police must make public. That decision made it necessary only for police to share, about any incident, the arrest report, the incident report, the news release or some similar document. It is up to the cops to decide the amount of detail to include.

How would the police decide that? There are different ways to look at the functioning of government. One way is to suppose that everything done by those in authority is in the open and can only be kept secret if they can prove some overriding reason why that should happen. Another is to assume that actions taken by the government are done in secret, and will only be made public if engaged citizens make the case convincingly as to why that should occur.

Since 1975, when its Freedom of Information Act became law by unanimous vote of the Legislature, Connecticut has been a place where the actions of those in government have been considered as public actions. Do the citizens of Connecticut mind giving their public servants the opportunity to conceal some of the actions taken in their name? It seems likely we can all agree this is a time when privacy concerns are very real, and defensible, with too much personal information arguably available to too many people who should mind their own business a bit more. Yet when, for instance, police are conducting their business at a crime scene, should the 911 calls associated with it and the photographs taken there be difficult or impossible to access, as happened at the time of the Newtown Sandy Hook massacre? Is this the direction we want to take?

If so, while it could be seen that the rights of crime victims are being protected, such a policy could also provide perpetrators and those investigating an incident with tools to hide their own actions.

There needs to be a balance, which is hard to find, and many dedicated and intelligent people have been trying to find it since the end of the last Legislative session and since the state Supreme Court decision. Now is the time for the legislators to fix the damage done by the Court. There is a bill in the current Legislature, which should become law, House Bill 6750, that will amend what was set by the decision written by Justice Richard Robinson. The Court noted then that it was the Legislature’s responsibility to take on the effects of its decision if legislators thought it necessary. The House bill addresses the decision’s repercussions and should be passed.

Now is the time to let our representatives in Hartford know if you care about open information relating to police actions. Those representatives have offices that are open to their constituents, and they should always be willing to hear from them. That is their job, after all: to represent the will of the people they serve. Make your will known now:

State Rep. Roberta Willis (D-64),, 1-800-842-8267; State Sen. Clark Chapin (R-30),, 1-800-842-1421.

Support bill to restore public right to arrest details –

Until last summer, police in Connecticut had to provide information about arrests or prove why that information should not be public. But a state Supreme Court ruling in July turned that bedrock principle upside down.

The court basically gave police full power to withhold much detail about arrests until the case is closed, which could take years. The remedy, the court wrote, is legislative and up to the General Assembly.

The assembly’s Joint Government Administration and Elections Committee smartly proposed a bill that would restore disclosure under criteria in the state’s Freedom of Information Act.

Now that bill, Raised Bill No. 6750, must come out of committee and be brought to a general vote. We implore the 15 committee members: do not let the bill die in committee.

Why should you care?

Police since July are obligated to provide only basic “blotter” information about someone arrested — name and address; date, time and place of the arrest and the criminal charges — and a news release, which need not contain anything more.

This means the police can withhold race, immigration status, whether the person has a previous arrest record or is in a position of trust. Mug shots taken at the time of arrest, which can be revealing, can be secret.

How someone charged with homicide got the weapon can be secret.

Most law-abiding citizens would want to know — and should know — this type of information about alleged criminals in their town or neighborhood.

The immediate defense of keeping information secret is that is necessary to avoid interfering with an investigation. Indeed, there are certain agreed upon exemptions under Freedom of Information law, such as the names of minors or the identity of informants. But if police are allowed to circumvent FOI, as they can under the court decision, and be the arbiters of what the public can know, where is the accountability?

One of the most powerful government entities would have carte blanche with no one watching. There is a certain amount of good faith entrusted in police to do what is best for the public — and often that is true. But not always.

The Justice Department‘s report released last week on the Ferguson, Missouri, police department is strong evidence that checks are necessary.

The report showed that police deliberately and unfairly targeted the minority community. This, however, is not a solely minority issue. Police abuse can happen anywhere and to anyone.

The bill before the GAE committee — “An Act Expanding The Requirement For Disclosure Of Arrest Records During a Pending Prosecution Under the Freedom of Information Act” — would return the balance between the police and the public’s right to know. The Freedom of Information protection served the public well for decades — without jeopardizing investigations — and must be restored.

That is in the best interest of all.

Shining Light On Arrest Records – The Newton Bee

In the name of public safety, there are times when we want the police to take control of a situation, sort things out, give orders, and have those orders obeyed. Even if we ourselves ever have the misfortune of being placed under arrest, we should recognize that at the point of arrest the law really does give police wide latitude to do their jobs. There is a time and place for arguing and protesting the particulars of innocence and resisting charges, but it is not when the cuffs are going on. Connecticut has a long tradition of government openness and transparency, however, that has not ceded complete control of the details of arrests to the police — at least not until a state Supreme Court ruling last summer.

Last July, the court upended a longstanding interpretation of the state’s sunshine laws by the Freedom of Information Commission (FOIC) regarding the contemporaneous release of records related to arrests. In Commission of Public Safety v. FOIC, the court essentially limited the information police are obligated to provide at the time of an arrest to the bare minimum: the name and address of the person arrested, the date, time and place of the arrest, the charge, and a brief press release, which typically adds little to the required  “police blotter” information. Prior to this ruling, the FOIC routinely concluded that police blotter information on an arrest should be supplemented by other related arrest information, provided it did not reveal the identity or compromise the safety of informants or witnesses, reveal investigatory techniques not generally known, or invade the privacy of victims, along with a few other exceptions where disclosure was judged not to be in the public interest. Information about local arrests not only informs a community about the nature and scope of law enforcement and alleged criminal activity near where they live, it also reveals something about the professionalism, efficacy, and expertise of the police force. Arbitrarily putting blinders on the discerning eye of the public leaves assessments of these key measures of police activity to the law enforcement agencies themselves. In our system of civilian-run governments, this is one area where we do not want the police to take complete control of the situation. The state Supreme Court noted in its ruling last year the benefits of greater disclosure, but it suggested that it was the work of the legislature and not the judiciary to secure those benefits. To that end, the legislature has raised a bill to clarify the Freedom of Information Act and return to the traditional, less restrictive law enforcement exemptions governing arrest records that have guided the FOIC for decades. We encourage legislators to support this return to greater transparency in our police departments.