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Final Decision FIC2012-205
In the Matter of a Complaint by
FINAL DECISION
James Torlai,
     Complainant
     against
Docket #FIC 2012-205
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection, Division of State Police;
and State of Connecticut,
Department of Emergency Services and
Public Protection, Division of State Police,
     Respondents
April 10, 2013

     The above-captioned matter was heard as a contested case on October 9, 2012 at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. The hearing was continued to November 13, 2012, to permit the testimony of State Trooper Bruce LaChance concerning records he was alleged to have created during a traffic stop of the complainant. After the November 13 hearing, the complainant by letter dated November 13, 2012 requested that the hearing be re-opened to permit him to introduce a one-page document into evidence. That document was admitted into evidence without a hearing and without objection, and designated as Complainant’s Exhibit C. Due to technical problems with the Commission’s recording software, no audio recording was made of the November 13 hearing, and the hearing was re-held on February 4, 2013, at the request of the complainant, in order to create a record of the proceedings, since the complainant would not stipulate as to the testimony of Trooper LaChance that had been presented on November 13.
     This matter was consolidated for hearing with Docket #FIC 2012-242, James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public, Division of State Police, et al.

     A first report of hearing officer dated February 25, 2013 was considered by the Commission at its March 28, 2013 meeting, at which time the complainant appeared to present argument, but the respondents did not appear. Following oral argument by the complainant and discussion by the Commission concerning the status of erased records, the hearing officer withdrew his report, and this report is issued in its place.
     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.  By letter of complaint filed April 17, 2012, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for public records.
     3.  It is found that the complainant made a request on January 2, 2012, to the respondents for all records related to case number CFS 1100332907, which pertain to a traffic stop of the complainant on June 16, 2011 by Trooper LaChance for allegedly erratic driving. Specifically, the complainant requested, and now alleges that he did not receive:
          a. All reports, written statements, arrest cards, notes, drafts and other such documents;
          b. All recordings such as video, audio and data recordings related to my arrest. This would include, but is not limited to, any recordings made by equipment in the state police car [that] followed me, passed me, pulled in front of me, and further engaged me. This would also include any video and/or audio recordings made at the State Police station in Litchfield;
          c. All phone logs or similar records showing calls to and from the State Police station in Litchfield on June 16, 2011. All records of any cell phone activity on June 16, 2011, including private cell phone use, by any person who had anything to do with my arrest. Copies of any text messages, emails, or other electronic messages and communications made by any person who had anything to do with my arrest and detention;
          d. Any records related to property taken from my vehicle when it was searched;
          e. Any records related to property taken from my wallet when it was searched;
          f. All computer activity logs, computer sign in logs, any data collected by keystroke loggers or similar software and all other records of computer activity by any person who had anything to do with my arrest. Also copies of any internet browser histories and results of any internet searches related to my arrest and results of any related searches of any other database or any information system;
          g. Any signed reports or summaries of my arrest which were made available to the public;
          h. Any records related to any communication between the State Police and the Bail Commissioners office on June 16, 2011;
          i. Records related to any searches or inquiries made by any employee of the State Police including private contractors or other agents of the State police over the last 40 years based on my name;
          j. Records related to any searches or inquiries made by any employee of the State police including private contractors or other agents of the State Police over the last 10 years based on license plates numbers 1DJ3 and 1CKJ3;
          k. Results of any searches or inquiries made by any employee of the State Police including private contractors or other agents of the State police over the last 40 years based on my fingerprints; and
          l. Any other records or information related to me other than previous Freedom of Information requests and complaints.
     4.  It is found that at the time of the January 2, 2012 request, the charges against the complainant were still pending.
     5.  It is found that the respondents acknowledged the request on January 9 and February 6, 2012. The respondents did not raise any objection to disclosure of records pertaining to charges that were still pending, although the respondents have in the past raised that objection to disclosure to this same complainant.  See, e.g., Docket #FIC 2009-325, Torlai v. Department of Public Safety; Docket #FIC 2009-770, Torlai v. Department of Public Safety; Docket #FIC 2010-355, Torlai v. Department of Public Safety; Docket #2010-458, Torlai v. Department of Public Safety.
     6.  Instead, by letter dated March 27, 2012, the respondents informed the complainant that his case was no longer pending, and that therefore they were assuming that some of the records he requested had been erased. The respondents provided some records on March 27, 2012, and enclosed information regarding how the complainant could obtain erased records concerning himself. That information merely contained guidelines for proving his identity, such as presenting his driver’s license, or other form of identification.
     7.  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. 
     8.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:
          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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.   
          ...
          Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.
     9.  It is concluded that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     10. At the hearing, the complainant withdrew the portions of his complaint described in paragraphs 3.h and 3.l, above.
     11. It is found that the respondents conducted a search for the requested records, and provided records reasonably responsive to paragraphs 3.c, 3.f, 3.i, and 3.j, above.
     12. The testimony at the February 4, 2013 hearing principally concerned the existence of a video recording of the traffic stop of the complainant. It is found that no recording of that stop exists, due to a malfunction of the equipment at the time of the stop. Following the conclusion of that hearing, the complainant withdrew the portion of his complaint regarding the records described in paragraph 3.b, above.
     13. With respect to the portion of the request described in paragraph 3.k, above, it is found that the respondents acknowledged the existence of two fingerprint records, but did not provide them to the complainant.
     14. With respect to the records described in paragraphs 3.a (other than the July 25, 2011 investigation report), 3.d, 3.e, and 3.g, above, the respondents maintain that such records have been erased pursuant to §54-142a, G.S.
     15. Section 54-142a, G.S., provides in relevant part:
          (a)  Whenever in any criminal case, on or after October 1, 1969, 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 upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect.
          ...

          (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 ….
          ...

          (e)(1)  The clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject's identity, information pertaining to any charge erased under any provision of this section [Emphasis added.]
     16. It is found that at the time of the complainant’s request on January 2, 2012, the charges against him were still pending, and that therefore no records relating to the charges had been erased at that time.
     17. It is found that the charges against the complainant were disposed of by the court sometime between January 2, 2012 and March 27, 2012. If the charges were dismissed, the records were erased after the expiration of the appeal period, pursuant to §54-142a(a), G.S.; if the charges were nolled, the records were erased 13 months later, on or about February 2013, pursuant to §54-142a(c)(1), G.S.
     18. However, it is concluded that §54-142a(e)(1), G.S., expressly authorizes disclosure of erased records by the respondents to the complainant, who is the subject of the records, upon proof of his identity.
     19. At the hearing on this matter, the respondents suggested that the complainant’s failure to file a motion with the court to obtain access to his records precluded him from receiving the records from the respondents. However, it is concluded that §54-142a(e)(1), G.S., does not require the subject of erased records to file a motion with the court. (Compare §54-142a(f), G.S., which permits “[u]pon motion properly brought … disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased, or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial ….”  The complainant falls within neither of those two categories of persons who are required to move the court for disclosure of erased records.)
     20. The respondents also maintain that they are permitted to withhold the requested records pursuant to §1-215, G.S., 21. Section 1-215, G.S., provides as follows:
          (a)  Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210.  Any personal possessions or effects found on a person at the time of such person's arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested. (Emphasis supplied).
          (b)  For the purposes of this section, “record of the arrest” means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency:  The arrest report, incident report, news release or other similar report of the arrest of a person.
     22. It is the respondents’ position that, other than the pieces of information required to be disclosed pursuant to §1-215, G.S., they are not required to disclose any other records having to do with or relating in any way to the arrest of an individual while the case against such individual is pending in criminal court.
     23. The Commission notes that the respondents must rely on the Appellate Court’s decision in Commissioner of Public Safety v. Freedom of Information Com'n, 137 Conn.App. 307 (2012), cert. granted SC 19047 (currently still in briefing). The Commission, in its petition to the Supreme Court, has argued why it believes that Appellate Court decision is incorrect. However, even if the Appellate Court decision is correct, its holding is limited to cases that are pending, and the criminal case against the complainant was not pending at the time the respondents denied the complainant’s request for records. Moreover, the respondents did not assert §1-215, G.S., as a defense to disclosure at the time the charges against the complainant were pending, and any such claim is deemed to have been waived.
     24. It is further found that §1-215, G.S., required the respondents, at a minimum, to provide the “record of the arrest” to the complainant at the time of his request, and that they failed to do so.
     25. It is therefore concluded that the respondents violated the FOI Act by first failing to provide records pertaining to pending charges while the charges were still pending, including but not limited to the “record of the arrest,” and then withholding the same records from the complainant, the subject of the records, on the grounds that the records had been erased in the time period that elapsed between his original January 2, 2012 request and the respondents’ eventual March 27, 2012 response.
     26. With respect to remedies, §1-206(b)(2), G.S., provides in relevant part:

          In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.
     27. Although the Commission does not ordinarily enforce compliance with records access provisions of the statutes, such as §54-142a(e)(1), that apply to particular individuals rather than the public at large, in this case the complainant was entitled to records concerning his arrest before they were erased, and the respondents waived any objection to disclosure at the time on the grounds that the charges were pending. The respondents then refused to provide copies of the records on the grounds that they had been erased during the 78 days between when they received his request and when they ultimately denied his request. Under the circumstances, the Commission in its discretion believes an order to the respondents to comply with §54-142a(e)(1), G.S., is appropriate to rectify the denial of the complainant’s right to receive records promptly, before they are erased.
     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 copies of any responsive erased records to the complainant, upon his submitting to the respondents satisfactory proof of his identity, pursuant to §54-142a(e)(1), G.S. Specifically, the respondents shall provide copies of the records described in paragraphs 3.a, 3.d, 3.e, 3.g and 3.k.
     2. The respondents shall preserve any requested erased records during the pendency of any appeal from this decision.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 10, 2013.

__________________________
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 Emergency Services and
Public Protection, Division of State Police;
and State of Connecticut, Department of
Emergency Services and Public Protection,
Division of State Police,
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2012-205/FD/cac/4/10/2013