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Final Decision FIC2011-102
In the Matter of a Complaint by
CORRECTED FINAL DECISION
James Torlai,
     Complainant
     against
Docket #FIC 2011-102
Commissioner, State of Connecticut,
Department of Public Safety; and
State of Connecticut, Department of
Public Safety,
     Respondents
February 21, 2012

The above-captioned matter was heard as a contested case on June 30, 2011 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that the complainant made several requests between December 14, 2010 and February 1, 2011, to the respondents for a copy of the arrest record of a Mr. McCormack which record he requested should include the following:
     a. “The complete address of Mr. McCormack;
     b. The date, time and place of [his] arrest;
     c. A list of all charges; and
     d. A copy of the blood alcohol content test results and/or drug test results if any such tests were performed.”
3. It is found that by letter dated January 10, 2011, and again on February 24, 2011, the respondents informed the complainant that there were no public records responsive to his requests. 
4. By letter dated February 22, 2011 and filed on February 24, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his records request.
5. Section 1-200(5), G.S., provides:
     “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method. 
6. Section 1-210(a), G.S., provides in relevant part that:
     Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to . . . receive a copy of such records in accordance with section 1-212. 
7. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
8. It is found that the requested record is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
9. At the hearing on this matter, the respondents contended that the arrest record was subject to the erasure provisions of §§54-142a, and 54-142c, G.S., and cannot be disclosed.
10. At the hearing on this matter, the complainant stated that notwithstanding the respondents’ January 10, and February 24, 2011 responses, described in paragraph 3, above, he believed that there were records responsive to his request and that such records had not been erased pursuant to information he received from the court clerk’s office.
11. Section 54-142a, G.S., provides in relevant part that:
     (a)  Whenever in any criminal case…the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased….

     (c)(1) Whenever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased, except that in cases of nolles entered in the Superior Court, Court of Common Pleas, Circuit Court, municipal court or by a justice of the peace prior to April 1, 1972, such records shall be deemed erased by operation of law and the clerk or the person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased, provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition to the court or to the records center of the Judicial Department, as the case may be, to have such records erased, in which case such records shall be erased.
     (g) The provisions of this section shall not apply to any police or court records or the records of any state’s attorney or prosecuting attorney with respect to any information or indictment containing more than one count (1) while the criminal case is pending; or (2) when the criminal case is disposed of unless and until all counts are entitled to erasure in accordance with the provisions of this section, except that when the criminal case is disposed of, electronic records or portions of electronic records released to the public that reference a charge that would otherwise be entitled to erasure under this section shall be erased in accordance with the provisions of this section.  … For purposes of this subsection, “electronic record” means any police or court record or the record of any state’s attorney or prosecuting attorney that is an electronic record, as defined in section 1-276, or a computer printout.  (Emphasis added). 

12. Section 54-142c, G.S., provides in relevant part that:
     (a) [t]he clerk of court or any person charged with retention and control of erased records . . . or any criminal justice agency having information contained in such erased records shall not disclose to anyone the existence of such erased records or information pertaining to any charge erased under any provision of this part, except as otherwise provided in this chapter.
     (b) [n]otwithstanding any other provision of this chapter, within two years from the date of disposition of any case, the clerk of the court or any person charged with the retention and control of erased records . . . or any criminal justice agency having information contained in such erased records may disclose to the victim of a crime or the victim’s legal representative the fact that the case was dismissed. . . .
13. For purposes of §54-142c, G.S., a “criminal justice agency” is defined as including “any . . . government agency created by statute which is authorized by law and engages, in fact, as its principal function in activities constituting the administration of criminal justice.”
14. It is found that the respondent department is a criminal justice agency for purposes of §54-142c, G.S.
15. It is found that Mr. McCormack was arrested on October 4, 2008, and charged with three offenses:  (1) DUI; (2)  failure to drive in proper lane; and (3) failure to display lights.   It is found that Mr. McCormack was convicted of, or pled guilty to, charges (2) and (3), above, on November 12, 2008, and that charge (1), above, was nolled. 
16. It is found that §54-142a(g), G.S., applies to the requested records.  It is found that the language of §54-142a(g), G.S., is clear and unambiguous, and states that the erasure provisions do not apply to “police or court records or records of any state’s attorney…” in a case in which there is a multiple count indictment, unless all counts are entitled to erasure.  
17. With regard to the three charges listed in paragraph 15, above, it is found that only charge (1) is entitled to erasure.  It is further found that charges (2) and (3) are not entitled to erasure.  Thus, it is found that the police and court records pertaining to Mr. McCormack’s arrest are not erased, and were not erased at the time of the request, described in paragraph 2, above, by operation of the applicable statute, because not all counts with which he was charged are or were entitled to erasure.
18. It is found, also, that the clear and unambiguous language of §54-142a(g), G.S., creates a distinction between physical, paper records, i.e., the “police and court records and records of any state’s attorney” on the one hand, and electronic records, including a “computer printout” on the other.
19. It is found that §54-142a(g), G.S., clearly and unambiguously states that, in cases in which there is a multiple count indictment, and one or more of the counts is dismissed or nolled, and there is a conviction on one or more of the other counts, the electronic record only of the nolled or dismissed charge shall be erased upon disposition of the criminal case.
20. It is found that complainant’s request is not limited to the electronic version of the requested records and that because the paper version of the requested record is not subject to the erasure provisions of §54-142a, G.S., those records are not exempt from disclosure.  
21. Consequently, it is concluded that the respondents violated the FOI Act when they denied the complainant’s records request.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1.  The respondents shall, forthwith, provide the complainant with a copy of all records responsive to the request described in paragraph 2 of the finding, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 25, 2012.
__________________________
Cynthia A. Cannata
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
James Torlai
127 Barton Street
Torrington, CT  06790
Commissioner, State of Connecticut, Department of Public Safety; and
State of Connecticut, Department of Public Safety
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT  06105
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-102/FD/cac/2/21/2012