PA 15-164—sHB 6750

Government Administration and Elections Committee

Judiciary Committee

AN ACT CONCERNING THE DISCLOSURE OF ARREST RECORDS DURING A PENDING PROSECUTION UNDER THE FREEDOM OF INFORMATION ACT

SUMMARY: This act increases law enforcement agencies' disclosure obligations under the Freedom of Information Act (FOIA) for records relating to a person's arrest. By law, when a person is arrested, a law enforcement agency must disclose the “record of the arrest” under FOIA unless it pertains to the arrest of a juvenile or has been erased in accordance with the law. Under prior law, the record of the arrest consisted of (1) the arrestee's name and address; the date, time, and place of the arrest; and the offense for which the person was arrested (i. e. , “blotter information”) and (2) at least one additional report designated by the agency. The additional report could be the arrest report, incident report, news release, or other similar report of the arrest.

The act modifies both components of the record of the arrest. It (1) requires that the blotter information also include the arrestee's race and (2) eliminates the requirement to disclose the one additional report and instead requires the law enforcement agency to disclose certain other records describing the arrest. Under the act, the agency must disclose the (1) arrest warrant application and supporting affidavits, if the arrest was made by warrant, or (2) official arrest, incident, or similar report, if the arrest was made without a warrant. If a judicial authority orders the affidavits or report sealed, in whole or in part, then the agency must disclose the unsealed portion, if applicable, and a report summarizing the circumstances that led to the arrest, without violating the judicial authority's order. The act specifies that the record of the arrest does not include any investigative files a law enforcement agency compiles in connection with investigating a crime resulting in an arrest.

The act prohibits law enforcement agencies from redacting the record of the arrest except for (1) witnesses' identities; (2) specific information about the commission of a crime, if the agency reasonably believes it may prejudice a pending prosecution or a prospective law enforcement action; or (3) information ordered sealed by a judicial authority. Under prior law, the law enforcement agency could redact information from the additional report (but not the blotter information) in accordance with FOIA's eight law enforcement records exemptions (see BACKGROUND).

The act also requires that, during the period in which a person's prosecution is pending, law enforcement agencies disclose under FOIA any public record that documents or depicts a person's arrest or custody, unless there is an applicable statutory exemption from disclosure. A law enforcement agency that receives a FOIA request for such a record must notify the state's attorney for the judicial district where the arrest occurred. The act allows the state's attorney to intervene in any proceeding before the Freedom of Information Commission concerning the requested record.

Lastly, the act specifies that it applies only when a prosecution is pending against the person who is the subject of the record (see BACKGROUND). At all other times, the applicable provisions of FOIA govern disclosure of the record (i. e. , the record must be disclosed unless there is a statutory exemption from disclosure). It also makes technical changes.

EFFECTIVE DATE: October 1, 2015

BACKGROUND

Law Enforcement Records Exemption

FOIA exempts law enforcement records from disclosure if they were compiled in connection with the detection or investigation of crime and disclosure would not be in the public interest because it would reveal:

1. the identity of informants or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known;

2. the identity of witnesses who are minors;

3. witnesses' signed statements;

4. information to be used in a prospective law enforcement action if prejudicial to the action;

5. investigatory techniques not otherwise known to the general public;

6. juvenile arrest records, including any associated investigatory files;

7. the name and address of the victim of (a) sexual assault or (b) risk of injury to a minor, or of an attempt thereof; or

8. uncorroborated allegations subject to destruction (CGS 1-210(b)(3)).

Pending Prosecution

In Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513 (2014), the Connecticut Supreme Court held that, during a pending prosecution, only the “record of the arrest” (see above) is subject to disclosure by law enforcement agencies under FOIA.

OLR Tracking: TA; KD; PF; BS