The New Arrest Records Law is a Credible Compromise

By James H. Smith
President, Connecticut Council on Freedom of Information

I’ve called the arrest records bill a credible compromise. And it is. In a sense, it’s a victory – count them preciously. They have been few and far between.

It’s certainly better than the state Supreme Court’s narrow view of legislative history. The court voted in 2014 to gut 20 years of adjudication on what police must release to the citizens of the state about violent criminal acts – or any arrest.

The state’s high court suggested the legislature revisit the issue. Led by Rep. Ed Jutila, D-East Lyme, co-chairman of the Government Administration and Elections Committee, legislators approved a bill reflecting those 20 years of FOIC and court rulings, based on 1-210(b)(3). It provides for the eight law enforcement exemptions (witnesses who may be in danger, sexual assault victims, investigative techniques not otherwise known to the public and information prejudicial to a prosecution – more on that one in a moment). Under 210(b)(3) if the information isn’t exempt, it must be released.

It was looking good.

But Chief State’s Attorney Kevin Kane slipped his version to the Judiciary Committee, where the bill had been referred. Everyone was taken by surprise, including Rep. Bob Godfrey, D-Danbury, who kept asking, “Where did this come from?” and didn’t get an answer.

Kane’s bill relied on 1-215. The Supreme Court had ruled that it trumped 1-210(b)(3). Sen. Eric Coleman, D-Bloomfield, and Rep. William Tong, D- Stamford, co-chairmen of the Judiciary Committee, were pretty much closed-mouth. Rep. Richard Smith, R-New Fairfield, said that he had supported Kane’s version, unsuccessfully, in GAE. He was all smiles.

Enter Dan Klau, an attorney at with McElroy, Deutsch, Mulvaney & Carpenter; Colleen Murphy, executive director and general counsel of the Freedom of Information Commission; and Paula Pearlman, an FOI attorney, who sat down nose to nose with Kane & Co. and kept pulling him our way. CCFOI was also aided by its lobbyist, John M. Bailey, who worked legislators, and CCFOI members who met with, called and emailed legislators.

The Judiciary Committee bill was no longer just name, rank and serial number and a “press release” that usually was no more than name rank and serial number. The negotiated bill provides for the public release of arrest warrant applications, and any affidavits, the official arrest or incident reports, unless sealed, and the race of the person arrested. And with this language, police body camera video is public: — “(c) In addition, any other public record of a law enforcement agency that documents or depicts the arrest or custody of a person during the period in which the prosecution of such person is pending shall be disclosed in accordance with the provisions of subsection (a) of section 1-210 and section 1-212, unless such record is subject to any applicable exemption from disclosure contained in any provision of the general statutes.”

Jutila, who saw his GAE bill disappear, was masterful in garnering support for the expansion of Kane’s position. With Godfrey, they convinced Tong and Smith to be sponsors of the measure. It passed the House unanimously and then passed the Senate unanimously.

Although the law provides for redaction of “specific information about the commission of a crime, the disclosure of which the law enforcement agency reasonable believes may prejudice a pending prosecution or prospective law enforcement action,” there is still on the books a counter balance: a 1998 Appellate Court ruling (51 Conn.App100), which states “there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.” The first venue for an evidentiary hearing would be the FOI Commission.