Opinion
No. CV 09 4019898S
August 14, 2009
MEMORANDUM OF DECISION
The plaintiff, Department of Public Safety (DPS), has appealed from a January 29, 2009 final decision of the Freedom of Information Commission (FOIC) that ordered the DPS to release "copies of records of the homicide of Barbara Gibbons on September 28, 1973 in the town of Canaan, Connecticut . . . subject to the following exception: the respondents shall redact from such records all references that directly or indirectly link Peter Reilly to the underlying crime." The major issue in the appeal is whether the FOIC, in so ordering, correctly applied the state "erasure" statute, Connecticut General Statutes § 54-142a. This statute requires erasure of "all police and court records and records of any state's attorney when an accused is found not guilty of a charge or the charge is dismissed, to the extent that such records "pertain" to such charge. See C.G.S. § 54-142a(a).
The extent of what "pertains" to a charge has not been resolved by the appellate courts. See State v. West, 192 Conn. 488, 472 A.2d 775 (1984). A Superior Court decision states that "[A]nything that discloses when or where a person was arrested, the nature of or circumstances surrounding the crime charged, or the names of witnesses from whom further information may be obtained pertains to the charge." State v. Weber, 49 Conn.Sup. 530, 535, 896 A.2d 153 (2006).
At a hearing held on August 13, 2009, the attorney for the FOIC moved to have the appeal remanded to the FOIC to consider the ramifications of a document in the record at page 191 (an affidavit of Peter Reilly waiving his right to have records erased and opening the file to the public). The FOIC considered this affidavit in its Final Decision (Finding 31), but, according to the FOIC attorney, it may not have considered the applicability of § 54-142a(e), which may permit a waiver of the provisions of § 54-142a(a).
Under Lisee v. Commission on Human Rights and Opportunities, Superior Court, judicial district of New Britain, Docket No. CV 99 0494680 (March 27, 2000, Cohn, J.), aff'd, 258 Conn. 529, 782 A.2d 670 (2001): "[W]here the agency recognizes that there are defects in the record and asks to correct them in advance of judgment," the court should allow a remand.
The court therefore orders a remand of this matter to the FOIC to consider the issue of waiver. In addition the court is also concerned, as expressed at the hearing, with the order in the final decision. If the waiver issue does not resolve the matter, then the FOIC should also consider under what circumstances the DPS is to redact this record. Should the redacted files be reviewed in camera by the FOIC or the court before release to the complainant? See State v. Weber, 49 Conn.Sup. 530, 535, 896 A.2d 153 (2006); Town Council v. Freedom of Information Commission, 20 Conn.App. 671, 675, 569 A.2d 1149 (1990): "[S]uch a review may be essential to the proper resolution of a dispute under the Freedom of Information Act."
So ordered.