Following Commission recommendation, YPD may be subject to FOIA requests

Posted Thursday 12:55 a.m. Like other police departments empowered to make arrests, The Yale Police Department should be ordered to release its records to the public, the head of the state Freedom of Information Commission recommended late this December.

The proposed decision — which must be approved by the full commission next month — could provide an unfettered glimpse into the world of the YPD which, for years, has refused to provide access to its police reports and other documents on the grounds that it is not a public agency.

But the FOI hearing officer disagreed.

“It’s the right decision,” said Janet Perrotti, a Connecticut public defender who led the charge against the YPD, said in a telephone interview Wednesday. “Not to be pompous … but clearly the facts and the law are on our side. And I’m just surprised that no one did it earlier.”

The legal challenge stemmed from an incident last May when two Yale Police Department officers arrested a city teenager who was riding his bicycle on a public sidewalk near Yale last spring.

The 16-year-old was charged with breach of peace stemming from the incident. But when his description of the arrest differed from what police recalled, Perrotti — the first cousin of YPD Chief James Perrotti — requested copies of the personnel files of the two officers, suspecting misconduct in his arrest.

The University denied her Freedom of Information Act request, asserting that the YPD is a private, non-governmental entity, so Perrotti filed a complaint this fall with the state’s FOI Commission, the Connecticut body that oversees FOIA requests in the state.

The proposed ruling is a step toward an important victory for students and journalists around the country who have criticized campus police departments in recent years for attempting to dodge public-records laws.

But their success in fighting the secrecy of campus police departments has been mixed. In New York, a court ruled in 2003 that Cornell University must make its arrest reports available for public inspection. But in a unanimous decision two years ago, the Supreme Judicial Court of Massachusetts rejected a lawsuit filed by The Harvard Crimson seeking access to incident reports from the Harvard University Police Department.

Other recent legal efforts in Georgia and Virginia failed, too, but spurred the legislatures in both states to subsequently pass laws opening campus police records to the public.

In Connecticut, as per state statute, agencies are subject to FOIA if they perform some governmental function, receive a minimum level of government funding, are subject to a certain amount of government regulation or involvement and were created by the government.

In making her case to the FOI Commission in September, Perrotti argued that the YPD meets all of those criteria.

The YPD officers perform the same function as New Haven Police Department officers, she said, and possess the same powers of arrest. They are sworn in by the city, too, she added. The department also benefits from government funding and a tax break on all of its squad cars and on its headquarters, she said.

But University Deputy Secretary Martha Highsmith — who could not be reached for comment Wednesday — said last month that the YPD is not legally a public entity, although she said she was unfamiliar with the details of the FOIA dispute. As a private police department, the YPD is subject to different standards than public police departments, she said.

For example, public police forces can use polygraph tests on potential officers during the employment process, Highsmith said, but the YPD cannot.

“The Yale Police Department is a private law enforcement agency,” she said. “We draw our powers through the city of New Haven, and we work with the Police Commission on some things, but basically we’re a private entity whereas the New Haven Police Department is a public entity.”

Officials from the Yale Police Department and Robert Langer, a partner in the prominent law firm of Wiggin & Dana, the University’s lawyer in the case, could not be reached for comment on Wednesday.

But in a recent interview with the New Haven Advocate, Langer contended that he YPD does not meet any of the four criteria to be a public entity.

Langer said the city of New Haven has no oversight over the Yale Police Department because of a 1992 agreement with the city that does not include any mention of the YPD falling under the regulations of the NHPD.

But Colleen Murphy, the executive director and general counsel for the FOI Commission, found that the YPD “exercises full police powers.”

“It is concluded … that the police power given to the YPD, with its accompanying power to detain and arrest, is a fundamental governmental function that is capable of having a profound impact on private individuals,” wrote Murphy, who heard the case in September and filed her seven-page proposed decision on Dec. 21.

As a “public agency,” therefore, the YPD must abide by FOIA, Murphy said.

The five-member FOI Commission is expected to consider the proposed decision at a hearing in February. Yale officials will have one last chance to make their case at that hearing, which they will try to do, University Spokesman Tom Conroy said Wednesday.

But if the FOI Commission is not persuaded by their arguments and accepts Murphy’s recommendation, the YPD would be forced to hand over the personnel files to Perrotti — and, potentially, to anyone else who requests them.

Conroy, meanwhile, declined to speculate on whether the University would appeal the FOI Commission’s decision if its members decide to accept the proposed ruling next month.

“We’ll take it one step at a time,” he said.

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