Arrest Records Transparency Bill Passes Senate

Shortly after 1:00 a.m. this morning, the Senate gave final approval to a bill that substantially restores much of the public access to arrest records that was lost last year when the state Supreme Court issued a decision that held that the public was only entitled to minimal access to arrest records while a law enforcement action or prosecution was pending.  The bill, which passed the House unanimously last week, now goes to Governor Malloy for his signature.  (Read Jon Lender’s story in the Hartford Courant about the bill.)

The new law, which amends section 1-215 of the Freedom of Information Act, eliminates language that allowed police departments to issue a “news release” about an arrest.  Such releases generally contained little more than basic police blotter information, i.e., name of person arrested, nature of the offense, etc.  In place of the news release, the new law requires police departments to produce real documents, such as arrest warrant applications and supporting affidavits, as well as official police and incident reports.  The new law also anticipates the increased usage of body cams by the police and requires law enforcement to produce all records, including video footage, that describe or depict an arrest or the holding of a person in custody pending prosecution.

One provision of the new law that initially caused some concern among members of the media allows the police to redact from arrest records “specific information about the commission of a crime, the disclosure of which the law enforcement agency reasonably believes may prejudice a pending prosecution or a prospective law enforcement action.”   The initial concern is understandable, but ultimately unjustified.

Having participated in the negotiations between the Freedom of Information Commission and the Chief State’s Attorney’s Office that led to the bill, the purpose of this redaction language is to allow police to redact specific information about a crime that would only be known to the actual perpetrator of the offense.  For example, only the police may know that a murder victim was strangled, as opposed to shot or stabbed.  Or only the police may know the murder victim was also sexually assaulted.  Publicly disclosing such information while a law enforcement action is pending could make it difficult for the police to judge the credibility of people who claim to have information about the crime, how it was committed, who committed it, etc.

As the press has reported, the bill represents a compromise between the FOIC and the Chief State’s Attorney’s office.  It is not perfect, but as someone once said, “the perfect is the enemy of the good.”  The bill represents a substantial improvement relative to the status quo since the Supreme Court decision.  It also strikes a reasonable balance between the public’s right to know how the police conduct their business and law enforcement’s legitimate need to keep certain information under wraps while a law enforcement action or prosecution is pending.

Credit for striking this balance goes to FOIC Executive Director Colleen Murphy and her staff (particularly Paula Pearlman), and Chief State’s Attorney Kevin Kane and his staff (particularly Assistant State’s Attorney Timothy Sugrue).  They negotiated for many hours over many months.  Both sides learned a great deal about each others’ concerns about how the FOIA should apply in the law enforcement context.  I think the negotiations can serve as a model for future discussions between open government advocates and members of the law enforcement community.  In fact, allow me to use the occasion of this post to suggest the creation of an informal open government-law enforcement discussion group that would meet several times a year to continue the exchange of ideas and concerns that began with the negotiations during this legislative session.

Major kudos also to the Connecticut Council on Freedom of Information and its tireless President, Jim Smith, for making passage of this bill a legislative priority.  CCFOI members testified before the legislature, met with individual legislators, wrote editorials and op-eds and generally did everything humanly possible to make turn the bill into law.

Finally, special thanks to Rep. Ed Jutila (D- East Lyme) for his strong support for the bill throughout the legislative session.  Passage of the bill would not have been possible without his efforts.

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