The above-captioned matter was heard as a contested case on October 13, 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 a request to the respondents, dated April 25, 2011, for the following “information and records” related to the arrest of Carlos Alicea:
     a. his complete address;
     b. date, time and place of the 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 (hereinafter “test results”).

3. It is found that by letter dated May 16, 2011, the complainant was provided with a news release which included all the information requested except for the test results. 

4. By letter dated, May 27, 2011 and filed on June 2, 2011, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly provide the records he requested and that the “new release” the respondents purport to have provided did not satisfy §1-215, G.S.

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 records are public records 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.  The respondents further contended that the complainant was given the information he requested in the form of a news release and therefore, they had complied with his request. 

10.  It is found, however, that the news release did not provide all of the information the complainant requested because it did not include the test results.

11. At the hearing on this matter, the complainant stated that he still wanted a copy of the records of Mr. Alicea’s test results and that if he was provided with those records, he would withdraw his complaint.

12. However, at the time of the hearing in this matter, the respondents were not certain that any blood alcohol content tests or drug tests were administered to Mr. Alicea and further contended that if they were, the records related to the results of such tests would be exempt pursuant to the erasure provisions of §§54-142a, and 54-142c, G.S.

13. It is found that after the hearing on this matter, the respondent informed the hearing officer, by letter dated October 17, 2011, that there is a record of a chemical alcohol test.

14.  Section 54-142a(c), G.S., provides in relevant part that:

     (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.

15.  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. . . .

16.  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.”

17.  It is found that the respondent department is a criminal justice agency for purposes of §54-142c, G.S.

18.  It is found that all the charges described in the arrest record at issue were nolled on April 6, 2011, however, thirteen months have not elapsed since such nolle.

19.  It is therefore found that, pursuant to the provisions of §§54-142a(c) and 54-142c, G.S., all the records related to the charges, including the record of a chemical alcohol test, are not erased and are not exempt from disclosure pursuant to those provisions. 

20. However, the respondents also contend that they are not required to disclose the record of a chemical alcohol test pursuant to §1-215, G.S.

21. Section 1-215, G.S., provides in relevant part that:

     (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… 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…

     (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 concluded that there is nothing in §1-215, G.S., that exempts the record of a chemical alcohol test related to an arrest from disclosure.

23. It is therefore concluded that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the record of the test results.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. Henceforth, the respondents shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

2. Furthermore, the respondents shall provide the complainant with a copy of the record of Mr. Alicea’s chemical alcohol test results, and free of charge.

3.  Enforcement of paragraph 2 of the order is stayed until resolution of the appeal of the Memorandum of Decision in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al. (No. CV 09 4020071S) (April 21, 2010).

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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 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
Public Safety Department
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission