August 30, 2001
PUBLIC ACCESS TO ARREST WARRANTS
By: Sandra Norman-Eady, Chief Attorney
You wanted to know if (1) arrest warrants and police mug shots are available to the public and (2) legislators have privileged access to this information.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be viewed as one.
The Freedom of Information Act (FOIA) (CGS §§ 1-200 to 1-241) is the legal authority for access to public information in the absence of any other specific state or federal law. FOIA requires public agencies, including law enforcement agencies, to disclose to the public records that they maintain unless some other law requires them to be kept confidential.
Title 54 of the Connecticut General Statutes (54-142g to 54-142p) is a comprehensive body of rules and procedures governing the maintenance, disclosure, and security of conviction and nonconviction information. It makes a distinction between criminal record history information (i.e., conviction and nonconviction information) and current offender information and specifies to whom (and sometimes under what circumstances) the former but not the latter may be disclosed. Arrest warrant information appears to be in the latter category; therefore, FOIA is controlling with respect to disclosure. FOIA limits the arrest information public agencies are required to disclose to the name and address of the person arrested; the offense he committed; and the date, time, and place of the arrest.
Agencies have some discretion with respect to the release of arrest or incident reports, news releases, or other similar reports of a person's arrest. Since FOIA encourages rather than prohibits disclosure, agencies with arrest record information may disclose any additional information they have that is not otherwise protected from disclosure.
FOIA does not require agencies to disclose arrest photographs maintained by law enforcement agencies. These photographs are disclosable under Title 54 if the subject was convicted of a crime. Otherwise the agency has discretion to disclose it.
Legislators do not have privileged access to public records.
DISCLOSURE OF ARREST RECORDS UNDER FOIA
FOIA requires public agencies to publicly disclose records that they maintain unless some other law (federal or state) requires them to be kept confidential. Currently, no law requires arrest records to be treated confidentially or otherwise restricts their disclosure; therefore, FOIA is the controlling legal authority with respect to this issue.
With two exceptions, FOIA requires law enforcement agencies to disclose an arrestee's name and address; the offense for which he was arrested; and the date, time, and place of the arrest. Juvenile and erased records are exempt from disclosure.
Law enforcement agencies must disclose the arrest or incident report, a news release, or other similar report of the person's arrest only if they do not fit within the FOIA exemption for law enforcement records. Law enforcement agencies do not have to disclose records of criminal investigation or detection if doing so would be contrary to the public's interest because it would reveal:
1. the identity of unknown informants,
2. signed witness statements,
3. information prejudicial to a future law enforcement action,
4. unknown investigatory techniques,
5. juvenile records,
6. the identity of sexual assault victims or victims of risk of injury or moral impairment crimes, or
7. reports containing uncorroborated allegations.
(CGS §§ 1-215 and 1-210 (b)(3)).
The legislature enacted the present FOIA provisions on access to arrest records to conform to a 1993 Connecticut Supreme Court decision where a 3-2 majority held that police departments cannot be required to release more basic information (the same as that currently required disclosed by FOIA) about an arrest while prosecution is pending (Gifford v. Freedom of Information Commission, 227 Conn. 641 (1993)). The Freedom of Information Commission has found law enforcement agencies that did not provide copies of arrest records in violation of FOIA (Susan Block v. New Haven Police Department et. al, FIC 94-345 (June 28,1995)).
Accessing Records Under FOIA
Anyone may inspect public records during an agency's regular office or business hours or receive copies of such records if they make a written request. State agencies cannot charge more than 25 cents per page for copies and other public agencies can charge no more than 50 cents per page. Agencies can charge (1) up to their cost for transcripts and copies of computerized data and (2) one dollar for certifying the first page of any record and 50 cents for each additional certified page.
They may require prepayment of any fee they estimate to be $10 or more (the sales tax does not apply). They may waive any fee if the requestor is unable to pay for it or if the request benefits the public welfare (CGS §§ 1-210 (a) and 1-212).
A number of different agencies hold criminal record information at one or more stages of a criminal proceeding. These agencies include local police departments, the bail commissioner's office, courts with criminal jurisdiction, the state police, Department of Correction, and the Office of Adult Probation.
ACCESS TO CRIMINAL RECORD HISTORY INFORMATION
Title 54 of the Connecticut General Statutes establishes the rule for disclosure of “conviction information” and “nonconviction information.” It provides that conviction information is available to the public and requires that agencies holding such information establish reasonable hours and places for inspections of such information (CGS § 54-142k(a) and (b)).
Nonconviction information is subject to limited disclosure. While Title 54 defines “current offender information,” it does not establish any rule for its disclosure (and neither does any other statutory provision), which is why FOIA is controlling in this area.
Title 54 defines “current offender information” as information concerning the current status and location of all persons who are arrested or summoned to appear in court; are being prosecuted in courts; have an appeal pending from any criminal conviction; are detained or incarcerated in any correctional facility in Connecticut; or are subject to the jurisdiction or supervision of any probation, parole, or correctional agency in Connecticut.
Under Title 54, “conviction information” is any criminal history record information that has not been erased, and which discloses that a person has pleaded guilty or no contest, or was convicted of any crime, and the terms of the sentences (CGS § 54-142g(c)). The term “criminal history record information” is defined as court records and information compiled by police and other criminal justice agencies to identify criminal offenders including arrests, releases, detentions, indictments, formal criminal charges, and other events or outcomes arising from arrests, detentions, or releases including pleas, trials, sentences, appeals, incarcerations, correctional supervision, paroles, and releases. Criminal history record information does not include intelligence, presentence investigation, or investigative information (CGS § 54-142g(b)).
Since conviction information is available to the public, any photograph of a convict retained by a law enforcement agency is a public record and must be publicly disclosed.
Although possibly available from a number of different law enforcement agencies, people seeking conviction information would probably have an easier time getting it from the state's repository for criminal history information—the State Bureau of Identification. It receives all records of arrest and disposition information, including fingerprints and photographs. The fees for the Bureau's records are: $18 for a name search and $25 each for fingerprints or a personal record or criminal history record search (CGS § 29-11).
In a recent state Superior Court case where the Hartford Courant sought criminal history information from the bureau, the court held that the controlling fee structure was that under § 29-11 rather than FOIA's fee structure because Title 54 rather than FOIA was the legal authority for disclosure of criminal history information (Hartford Courant Company v. Freedom of Information Commission, CV 00 05027685 (New Britain Judicial District, April 27, 2001)).
By law, “nonconviction information” means erased criminal history record information, information relating to people granted youthful offender status (available to 16- and 17-year old first offenders of specified crimes), and cases nolled for more than 13 months (CGS § 54-142g(e)).
As a general rule, nonconviction information is disclosable only to state and federal criminal justice agencies, agencies and people who need it to implement a statute or executive order that expressly refers to criminal conduct, and agencies and people authorized by a court order, statute, or decisional law to receive criminal history information (CGS § 54-142n).
Nonconviction information may be disclosed:
1. to the subject or his attorney,
2. for research,
3. for the administration of justice pursuant to an agreement,
4. by the Judicial Department to a state agency for the collection of moneys due to the state, and
5. by the Judicial Department to the Department of Mental Health and Addiction Services for administering court-ordered evaluations and the provision of programs and services to people with psychiatric disabilities and substance abuse treatment (CGS §§ 54-142k (c) and (d), and -142m). Recipients of nonconviction information, other than the subject and his attorney, are prohibited from further disseminating it.
Thus, a photograph of a person who was not convicted of a crime or whose criminal record has been erased may not be disclosed by law enforcement agencies except as stated above.