09/26/16 – Editorial
Police officers facing criminal charges should not receive special treatment not otherwise provided the public, yet special treatment is exactly what appears to be happening in the case of North Stonington Resident State Trooper David F. Greene. [Read More]
By James H. Smith
The sun isn’t shining brightly on law enforcement action in Connecticut.
The sun did shine one day last month on the State Legislature with testimony on a bill that would open up criminal investigations more to the public. But now the legislation is stalled in committee. It may or may not see the light of day.
As of this moment, the public can be denied 911 tapes, mug shots of those arrested for crimes, the race of anyone arrested — just about anything but who was arrested, where and for what.
For two decades much of the information gathered by police in criminal investigations and arrests has been available to the public. But last summer the state Supreme Court ruled, in essence, that police can keep secret almost everything they obtain in crime investigations. Technically, it ruled that one part of the FOI statutes, Section 1-215, which limits what must be released, trumps another, Section 1-210, which provided for more transparency into police activity.
The Court suggested that the Legislature revisit the issue and rectify the seeming contradiction in the sate’s laws.
After FOI advocates met with the leaders of the Legislature’s Government Administration and Elections Committee, which has cognizance on FOI matters, it offered H.B. 6750, An Act Expanding the Requirement for Disclosure of Arrest Records During a Pending Prosecution Under the Freedom of Information Act.
The bill drafted by the committee would reverse the Supreme Court decision. There was a full day of hearings where police and prosecutors opposed the legislation and FOI advocates supported it.
Chief State’s Attorney Kevin Kane testified that “the Supreme Court went through the legislative history of the statute . . . when this Legislature very wisely enacted that section (1-215),” thus narrowing the scope of what must be disclosed.
The bill before the committee shifts authority back to Section 1-210, which was the basis of 20 years of Freedom of Information Commission decisions on what police must release.
FOI Commission Executive Director Colleen Murphy testified how she looked back at the legislative history and found then-Sen. George Jepsen, now the state attorney general, saying that, “By closing off arrest records, we open up arrest itself as an avenue of abuse of civil rights because it will no longer be necessary for the police to defend an arrest on the basis of information that would be immediately available to public scrutiny.”
Murphy told the GAE Committee that Kane’s position “permits the police at their discretion to avoid public scrutiny of many aspects of an arrest, such as mug shots showing an arrestee’s appearance at the time of arrest or videotapes or other recordings made at the scene or in the police station . . . The law enforcement agency could withhold whether the person sits in a position of public trust, immigration status, minority status and the like . . . The (court) decision raises the question should the police have this absolute discretion to decide whether the public can learn this very important information.”
The committee’s co-chairman, Rep. Edward Jutila (D- East Lyme), told the CTNewsjunkie.com last week that the statute “is an embarrassment. It needs to be changed.” Section 215 gives the police “latitude to give virtually no information.” Still, Jutila could not guarantee the GAE Committee would move the proposed legislation to the floor.
Let’s hope it does. This bill must not die in committee. A full debate in the House and the Senate is needed.
James is a member of NEFAC’s Board of Directors and is president of the Connecticut Council on Freedom of Information.
Mitchell W. Pearlman, of Glastonbury, probably knows as much about open government as anyone. He has served as director of both the Connecticut Freedom of Information Commission and the Office of State Ethics. He has taught, lectured and written extensively on the subject, and has consulted on democratic governance both in this country and abroad.
So if Pearlman is concerned about the direction in which the General Assembly is steering this state — and he is — then we should probably take notice. And he says our legislature, which once was a pioneer in open government, having passed the landmark Freedom of Information Act in 1975, “more recently has earned a reputation as one that tolerates corruption and governmental misconduct.”
Then, last summer, the state Supreme Court issued a divided decision that allowed law enforcement agencies to keep more information secret. They can now disclose a bare minimum of arrest information until prosecution, and that can take months, sometimes years. Previously, police had to provide more information about arrests or give good reason why that information should not be made public.
Why this change of direction? Why, four decades after Watergate, are we heading toward more government secrecy?
Fortunately, there’s a bill before the legislature — HB 6750, “An Act Expanding the Requirement for Disclosure of Arrest Records during a Pending Prosecution under the Freedom of Information Act” — that would restore some of the FOIC’s authority, but at the moment it’s bottled up in committee.
Remarkably, the court in its decision explicitly recognized that its interpretation of the law was in need of clarification by the appropriate branch of government — the legislature. For that reason alone, HB 6750 at least deserves a debate by that body.
There are times when police need to withhold information; for instance, to protect the identity of an informer. But the FOI Act already allows for such exceptions, so that’s no reason to hamstring the law.
Society entrusts the police with great power, including the exclusive right to use force. While we believe that most cops honestly try to do the right thing, there have been too many exceptions, both here and across the nation, not to keep safeguards in place.
One of those safeguards was Connecticut’s Freedom of Information Act, before the court watered it down. HB 6750 would restore some of its bite, so this bill should get a full hearing and debate. Let the General Assembly take the reins and steer our state back toward open government.
What grows in the darkness? Only creepy-crawly things. Let there be light!
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]
A state with the nickname of Corrupticut should think hard about the wisdom of leaving entirely up to police whether to release important arrest records while a prosecution is pending.
A 2014 state Supreme Court ruling allows police to withhold all but the sparest of information on arrests until cases are prosecuted, which can take years. The court said police must release so-called blotter information (name, address, time of arrest, charges) and little more.
Even before the ruling, getting such public records as mug shots and cruiser videos was not easy in Connecticut. Civilians in towns with histories of police problems (Enfield and East Haven come to mind) should be especially concerned that such evidence will be out of reach just when the public needs it.
The ruling was based on what one critic called a “tortured” interpretation of the state’s Freedom of Information Act. House Bill 6750 would restore what Connecticut had for two decades: public access to police arrest records unless those records qualified for exemption. Exemptions included juvenile records or anything that could identify or cause harm to a witness.
The bill should pass. At the very least, it should break through a logjam in the government, administration and elections committee for a debate on the floor of the House.
It’s in the public’s welfare to have information on crimes in communities. But also, the public should be free to monitor how police are handling arrests. Public records can serve as a check on abuses of their considerable powers.
The Rev. James Manship, for example, was arrested in 2009 for videotaping East Haven police at a Hispanic grocery store. The priest later said, after the two officers were found guilty of violating the civil rights of Latinos, “There were 27 drafts of my police report, 27 drafts of fiction upon fiction upon fiction to try and discredit me.” Under the supreme court ruling, police may choose to give out a press release instead of a police report. It’s entirely up to them.
Many police departments are loath to abide by even the minimal requirements that the supreme court says they must follow. In a compliance check last year by three Connecticut newspapers, New Haven police and state police Troop G in Bridgeport, among others, refused to provide even basic blotter information on arrests.
Coincidentally, this is the 10th anniversary of Sunshine Week, a celebration started by the American Society of Newspaper Editors. It’s also the 66th anniversary of the book “Freedom of Information,” written by the late Hartford Courant Editor in Chief Herbert Brucker (also president of ASNE). It’s a shame that the state where the now-ubiquitous term for open government was coined is lapsing into secrecy.
The cause of open government in Connecticut has taken extraordinarily hard knocks of late, undermining this state’s once-sterling reputation nationally for valuing openness and promoting the free flow of information. One of the hardest was a disappointing state Supreme Court ruling last year that severely limits the amount of information that local police departments and the state police are required to disclose about an arrest while prosecution is pending.
House Bill 6750 would do a public service in reversing that ruling. It would restore the proper balance between government transparency and privacy and fair-trial interests.
‘What Is Good For Them To Know’
The legislature passed the Freedom of Information Act 40 years ago. Its preamble said, “The people, in delegating authority, do not give their public servants the right to decide what is good for them to know.”
Yet under the high court’s 2014 ruling, police have to disclose only so-called blotter information on an arrest while a prosecution is pending (which can take years). Blotter information is name, address and date of birth of the person arrested; the date, time and place of arrest; and the criminal charge.
Police also must release just one of the following: the arrest report, incident report, news release or similar document. But a news release doesn’t have to have any more information than what’s on the blotter. Police departments may volunteer more details — some, like South Windsor’s exemplary PD, do so routinely — but they don’t have to.
That means that police are not required to release mug shots, witness statements or documentary evidence, all of which give a more accurate picture of a criminal arrest — and clues as to whether the arrest was proper.
House Bill 6750 would require that all arrest records be open to the public unless they are exempted for reasons already covered by law — for example, if releasing records would be prejudicial to a case under prosecution.
Otherwise, police may hide arrest details they don’t want the public to see.
Copyright © 2015, Hartford Courant
Police departments in Connecticut don’t have to release much information about arrests that they make — not in a timely manner, anyway — and open-government advocates are now saying that legislators need to pass a bill to increase disclosure requirements.
While some police chiefs see a value in explaining the circumstances under which people are charged with crimes, other law enforcement officials such as the state police have long kept their disclosures to a minimum and left major holes in the public’s knowledge about what happened.
The situation has bred conflicts between law enforcement and citizens or reporters seeking arrest documents, but for the past couple of decades the state Freedom of Information Commission was able to manage a sort of uncomfortable balance between those opposing forces.
[REALTED]
That balance was shattered, however, last summer by a state Supreme Court ruling in favor of the state police and against the FOI Commission: The court said police agencies don’t have to tell the public anything but the most perfunctory information about arrests while prosecutions are pending.
It can take months or years from the time a person is arrested until his or her case concludes in court. And that’s too long a delay — because the public needs to be able to judge, when an incident is fresh, whether the police acted properly and effectively, some supporters of disclosure told a legislative committee at the Capitol complex in Hartford on Friday.
“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,” said James H. Smith, president of the non-profit Connecticut Council on Freedom of Information.
Smith was testifying in favor of House Bill 6750 — “An Act Expanding The Requirement For Disclosure Of Arrest Records During a Pending Prosecution Under the Freedom of Information Act” — at a hearing conducted by the legislature’s Government Administration and Elections Committee.
The bill would amend state statutes to reverse last summer’s Supreme Court ruling. The court said that between the time a person is arrested until the conclusion of his or her prosecution in court, the police don’t need to release any more than: 1) “police blotter” information, including the “name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested”; and 2) a press release, which is typically brief and adds little to what’s on the police blotter.
Under House Bill 6750, police would have to disclose any “record that pertains to the arrest of any person” under the provisions of the state’s Freedom of Information Act. Under that act, a citizen can appeal to the FOI Commission if a police department refuses to release a document and then the police get a chance to justify their action by citing one of several exemptions in the law — such as that disclosing a document could endanger a witness or jeopardize a prosecution.
That’s how it worked for about two decades prior to last summer’s Supreme Court decision, and that’s how it would be again if the bill passes, according to Smith and other FOI advocates.
Law enforcement officials weighed in against the bill, however. The state’s top prosecutor, Chief State’s Attorney Kevin Kane, submitted testimony saying his agency “fully recognizes the public’s right to receive information regarding the arrest of a citizen,” but “that right is adequately implemented” by the law on which the Supreme Court relied “which makes public the basic blotter information and some additional information regarding the circumstances that led to the arrest.””The disclosure of information beyond this amount should not be mandated by statute and should rest in the hands of law enforcement agencies, who are in the best position to protect the integrity of a pending prosecution and the safety of witnesses,” Kane testified.
Avoiding Scrutiny
Colleen Murphy, executive director of the FOI Commission, testified in favor of the new bill — saying that since last summer’s court ruling, police agencies can continue to “avoid public scrutiny of many aspects of an arrest, such as mug shots showing an arrestee’s appearance at the time of arrest, videotapes or other recordings made at the scene or in the police station, and records indicating an arrestee’s immigration status or whether the arrestee held a position of public trust, for example.”
“Should the police have unchallengeable discretion to decide whether the public can learn this very important information, or should this decision be vested in the FOIC, as it had been for many decades prior to the Court’s ruling?” Murphy said.
She said that Supreme Court “expressly recognized” in its decision last year that there are “numerous salutary effects of requiring greater disclosure,” adding that justices said it’s the General Assembly’s job to address the issue of requiring increased disclosure on arrests.
“By reversing [the court decision] and restoring broader disclosure requirements of law enforcement records after an arrest, [House Bill 6750] strikes an appropriate balance between promoting transparency in law enforcement and preserving the integrity of pending prosecutions,” Murphy said. “The FOIC strongly urges the legislature to adopt this carefully crafted bill.”
Last year’s court decision stemmed from a 2008 complaint to the FOIC by a New Haven Register reporter who was denied detailed state police reports that formed the basis of the arrest in Derby of a man on charges of attempted murder in the assault of an elderly man.
The state police said the reports sought by the reporter were exempt from disclosure. They provided an “official press release,” which contained the accused’s name, address and birth date; the date, time and location of the incident; the charges filed; and a two-paragraph narrative with additional information about the incident.
The FOI Commission ruled in favor of the reporter, but the police agency appealed in court. Two years later, when the accused pleaded guilty, the records originally requested were made public. But the court proceedings continued over the police’s refusal to release records at the time of the arrest — and those proceedings ultimately led to last year’s Supreme Court ruling.
Smith said at Friday’s hearing: “We simply ask the General Assembly to resolve an ambiguity that the Supreme Court recently identified in [the] General Statutes…and to restore the twenty-year interpretation of the Freedom of Information Commission that resolved the ambiguity in favor of greater openness and transparency. HB 6750 makes clear that “records of an arrest” — including basic blotter information — must always be released following an arrest.”
The committee’s two co-chairmen, Sen. Steve Cassano, D-Manchester, and Rep. Ed Jutila, D-East Lyme, had different reactions to the bill Friday.
Cassano said he’s bothered by the prevalence of information on the Internet, television and in print media about people’s arrests when they haven’t been convicted of a crime, and may never be. That damage to a person’s reputation can’t be undone, he said.
Jutila said he thinks “we need to do something” in the wake of the high court decision because in many cases a police press release says virtually “nothing” to the public beyond to the basic blotter information.
Police agencies can pretty much give out all the information they want about an arrest, but that’s not the norm — and Jutila and others suggested that lawmakers need to improved upon the minimal disclosures required under the Supreme court ruling.
Even Kane agreed that “I think the public is entitled to more information than is routinely given” about an arrest. But he said he has begun discussing with Connecticut police chiefs a “protocol” under which departments would improve their disclosure policies. He said he didn’t yet have a target date for developing that.
Murphy said policies can always be reversed, and legislative action is needed to lock the changes into statutes.
Smith responded to Cassano’s comments by saying that public trials are fundamental to a free society — and they always involve public accusations before a finding of guilt or innocence.
Likewise, Murphy said that while arrest reports contain unproven allegations, it’s part of the price of having a free society in which there are no secret arrests as in other countries over the course of history. Also, she said, the FOI Act already contains exemptions that address Kane’s concerns about the harm that inappropriate disclosures could do to witnesses. Police reports could be “redacted” to remove information that could harm witnesses, she said, adding that the system worked fine for 20 years before last summer’s court ruling.
Rep. David Alexander, D-Enfield, said at Friday’s hearing that he admires and supports police — his grandfather was a cop — but he added that a police brutality incident in his hometown last year proved the value of releasing arrest information to the public.
He cited The Courant’s posting on its website of a video from an Enfield police cruiser showing three officers taking down an unarmed Windsor man last April, with one of them striking him repeatedly. Officer Matthew Worden was fired Oct. 3 over allegations that he used excessive force during the arrest.
Disclosure of such information “sheds light” not only on rare police misconduct that the public should know about, but also on the good conduct of most police officers, Alexander said.
Jon Lender is a reporter on The Courant’s investigative desk, with a focus on government and politics. Contact him at jlender@courant.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on
Twitter@jonlender.
HARTFORD — The stage is set for a showdown at the General Assembly on crime victim privacy and the public’s right to know.
On Tuesday, the legislature’s judiciary committee approved a bill that would establish new restrictions on the public’s ability to access police records such as 911 tapes and crime scene photos. It also would prohibit the release of photographs of child murder victims.
In urging his colleagues to back the bill, Sen. Eric Coleman, D-Bloomfield, said it strikes the right balance. The measure mirrors the recommendations of a legislative task force formed last year to study issues of privacy versus disclosure, after some families of victims killed in the 2012 Newtown school…Click here to continue reading.
