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Is Arrest Info None Of Your Business?

by Ethan Fry | Jan 9, 2014 6:49 pm

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Posted to: Derby, Shelton, Your Right To Know

Nearly six years ago, state police charged a Shelton resident with trying to kill his father on Route 8 in Derby.

The criminal case against the man, Toai Nguyen, ended in 2010, when he was sentenced to a two-year jail term.

But at the state Supreme Court in Hartford Thursday, Nguyen’s arrest was the subject of an argument between lawyers for the state’s Freedom of Information Commission and the state police over just how much information law enforcement agencies are obligated to disclose to the public about arrests.

Background

Nguyen was arrested March 15, 2008.

Three days later, Michelle Tuccitto Sullo, a reporter at the New Haven Register, asked state police for access to a police report on the incident.

More than a month later, state police responded to Sullo with a letter saying the police report was exempt from disclosure under the Freedom of Information Act, instead giving her a copy of a press release about the incident with Nguyen’s name, date of birth, address, the date, time, and location of his arrest, and the charges he faced.

Oh, and a two-paragraph “narrative” of what was alleged to have happened.

Sullo and the Register filed an Freedom of Information complaint three days later seeking the police report.

In February 2009 the FOI Commission ruled that the police reports in the case were subject to public disclosure, unless specifically exempt by the Freedom of Information Act — for example, signed witness statements or information which might compromise a future police operation would need not be made public.

The Department of Public Safety appealed that ruling, saying state cops satisfied the FOI Act when they gave the Register a copy of their press release on the arrest.

In April 2010, Superior Court Judge Henry Cohn sided with the state police. In August 2012, so did the state’s Appellate Court.

Article continues after the document.

Appellate Court Decision

The FOI Commission appealed the Appellate Court’s ruling, which was the subject of Thursday’s hearing at the Supreme Court.

There, lawyers representing the FOI Commission and the Department of Public Safety argued over the meaning of the state’s FOI Act.

How Much Info Do Police Have To Release?

The court’s decision could have far-reaching consequences, lawyers on both sides of the argument told the court’s justices Thursday.

Photo:Ethan FryVictor Perpetua, a lawyer representing the FOI Commission, told the seven Supreme Court justices that the commission doesn’t think all police records should be disclosed as a matter of course, merely that when police withhold such documents, they should demonstrate to the FOI Commission why the records are exempt.

He said the Appellate Court ruling contradicts more than three decades of case law and commission rulings — and set a dangerous precedent for public oversight of police in Connecticut.

“The consequence of such an interpretation of the law is that no other records need be disclosed,” such as mugshots or 911 recordings, he said.

“The commission’s position is not that these must be disclosed, the commission’s position is simply that these other documents must be evaluated on a case-by-case basis to see whether they are exempt from disclosure or not,” Perpetua said.

He noted that in the FOI Commission’s original 2009 ruling, it ruled several of the documents could be kept hidden from the public, and that state police were within their rights not to release them.

But it’s bad public policy to give police “unfettered discretion” over what to release, he said.

Assistant Attorney General Terrence O’Neill, who represented the Department of Public Safety at Thursday’s hearing, argued that state police satisfied the requirements of the FOI Act when they gave Sullo the news release about the arrest.

Further, he said that the law gave cops discretion over whether to release other documents or not while any prosecutions related to the arrest are still pending.

He pointed out that Sullo got the records she requested originally requested after the criminal case against Nguyen ended in March 2010.

“The law enforcement agency that possesses the record of the arrest has the discretion to determine what can and should be released, at least in document form,” he said, so long as they disclose the “blotter information” like the name of the person arrested and the charges they face and either an arrest report, incident report, news release, or “other similar report of the arrest.”

What Makes A ‘News Release’?

One of the options police have is to issue a “news release” about an arrest, as they did after they charged Nguyen.

“If that press release gives a narrative account of the arrest, that’s certainly one of the options available to the law enforcement agency to disclose,” O’Neill said.

Justice Peter Zarella asked O’Neill just what police have to include in a “news release,” pointing out that, after all, it’s the police who have control over what to include in them.

“All that news release would need to have is the name and address of the person arrested, the date and time and place of the arrest, and the offense for which the person was arrested, that’s all that the news release would have to contain, is that correct?” Zarella asked.

“No your honor,” O’Neill said. “At that point, the news release would be a sham.”

“That’s not a news release, that’s blotter information,” O’Neill went on. “Clearly, the statute, to be given full force, requires the production of some document that contains some narrative.”

If it does, he said police have satisfied their obligations under the FOI law.

FOI Lawyer Optimistic

After Thursday’s hearing, Perpetua said he felt he got the FOI Commission’s point across.

“I feel like it went well and they seemed to understand our arguments and asked good questions,” he said. “I feel good about it.”

He said he expected the court to rule on the case in months, at the earliest.

Whatever Happened To . . .

The man whose arrest — after police said he beat his father with The Club, a vehicle anti-theft device, so severely that his father’s skull fractured — was the subject of Thursday’s hearing is still in custody, though not for his 2008 case.

Nguyen pleaded nolo contendere to first-degree assault in March 2010 and was given a 12-year prison sentence to be suspended after he served two years.

Seven months later, Shelton police arrested Nguyen after he attacked his sister inside his Maple Street apartment. The sister fought off Nguyen and ran out of the apartment, but suffered serious injuries.

In that case, a judge in July 2012 found Nguyen, who had a well-documented history of paranoid schizophrenia, not guilty by reason of mental disease, ordering that Nguyen be committed for up to 20 years.

Last year the state’s Psychiatric Security Review Board ordered that Nguyen remain in maximum security confinement at Whiting Forensic Institute, part of Connecticut Valley Hospital in Middletown. The board will review his status at least every two years.

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