FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Kevin Donovan and Greenwich
Time,
Complainants
against Docket
#FIC 87-173
Greenwich Police Department
and Chief, Greenwich Police Department,
Respondents May
25, 1988
The above-captioned matter was heard as a contested case
on July 29, 1987, at which time the complainants and the respondents appeared,
stipulated to certain facts and presented testimony, exhibits and argument on
the complaint, following which the matter was continued to a later date. Hearings scheduled for September 22, 1987,
October 27, 1987, December 8, 1987, December 29, 1987 and January 5, 1988 were
successively rescheduled due to the unavailability of one or more participants. The continued hearing was finally held on
March 2, 1988.
After consideration of the entire matter, the following
facts are found:
1. The
respondents are public agencies within the meaning of §1-18a(a), G.S.
2. By letter
dated May 19, 1987 the complainants made a request of the respondents for
"a copy of the report on the Matthew Margolies murder investigation
prepared for your department by Lieutenant Commander Vernon Geberth of the New
York City Police Department."
3. By letter
dated May 21, 1987 the respondent chief denied the complainants' request,
citing §§1-19(b)(3)(B) and 1-19(b)(3)(C).
4. By letter
of complaint filed with the Commission on June 17, 1987 the complainants
appealed the respondents' denial of their request for records.
5. It is
found that the Matthew Margolies case involves the murder, in 1984, of a 13
year-old boy. As of the date of
hearing,, the murder was unsolved.
Docket #FIC 87-173 Page
Two
6. It is
found that the report in question ("the Geberth report") analyzes the
respondent department's handling of the Margolies investigation and was
commissioned by Thomas Keegan, the chief of the respondent department at the
time of the Margolies murder. Vernon
Geberth, an expert in homicide investigations, conducted his review as a
private consultant, not as a member of any police department.
7. The
report, for which the Town of Greenwich paid $1,000, is between 20 and 25 pages
long, and was submitted in January, 1986.
8. The
respondents claim that the complainants have failed to establish a
particularized need for disclosure of the Geberth report and that disclosure of
the report is, therefore, not required.
9. It is
found that nothing in the Freedom of Information Act requires a complainant to
establish a need, particularized or otherwise, for disclosure of a document.
10. The
Commission, therefore, rejects the respondents' claim with respect to the
alleged link between the need for a document and its disclosability.
11. The
respondents further claim that the Geberth report was made on a confidential
basis and that release of the report might make it more difficult to solicit
similar reports in the future.
12. It is
found that Mr. Geberth's alleged expectation of confidentiality with respect to
his report to the respondents does not affect the disclosability of the
document under the Freedom of Information Act.
13. The
respondents also claim that the report is exempt from disclosure pursuant to
§1-19(b)(3)(C), G.S. on the ground that disclosure of the report would not be
in the public interest because it would result in the disclosure of
investigatory techniques not otherwise known.
14. The
respondents further claim that the report is exempt from disclosure pursuant to
§1-19(b)(3)(B), G.S. on the ground that disclosure of the report would not be
in the public interest because it would result in the disclosure of information
to be used in a prospective law enforcement action, which disclosure would be
prejudicial to such action.
Docket #FIC 87-173 Page
Three
15. It is
found that the report in question is a record of a law enforcement agency not
otherwise available to the public, which record was compiled in connection with
the detection or investigation of a crime.
16. It is
further found that the Geberth report is not co-extensive with the respondents'
investigative file concerning the Margolies murder. Rather, the report reviews and comments upon the respondent
department's investigation.
17. It is
found that the respondent failed to prove that the Geberth report, if
disclosed, would reveal investigatory techniques not otherwise known to the
general public, within the meaning of §1-19(b)(3)(C), G.S.
18. It is
concluded that the Geberth report is not exempted from disclosure by
§1-19(b)(3)(C), G.S.
19. It is
found that Mr. Geberth was provided access to the complete file on the
Margolies investigation. The Geberth
report refers to evidence gathered during the course of the investigation,
which evidence is deemed by the respondents to be significant in any law
enforcement action which may be taken in connection with the case.
20. It is
found that the investigation of the Margolies murder is an active one. As of the date of the first hearing in this
matter, two detectives and a supervisor were assigned to the case, and
individuals were interviewed in connection with the investigation within one
month prior to such first hearing.
21. It is
concluded that although no law enforcement action has been taken against any
individual responsible for the Margolies murder, such an action is being
pursued and is in no way precluded by the lapse of time since the date of the
murder.
22. It is
found that to the extent the Geberth report contains information concerning the
Margolies investigation, the disclosure of which would be prejudicial to a
prospective law enforcement action in such matter, such information is exempt
from disclosure pursuant to §1-19(b)(3)(B), G.S.
23. The
Commission notes that the purpose of the Geberth report was to review the respondent
department's investigation of a murder.
To the extent that the report's analysis of the respondent department's
performance is distinguishable and separable from a review and analysis of the
evidence gathered, such information is not exempt from disclosure pursuant to
§1-19(b)(3)(B), G.S., and is disclosable.
Docket #FIC 87-173 Page
Four
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint.
1. The
respondents forthwith shall provide the complainants with a copy of the Geberth
report, as more fully described at paragraph 6 of the findings, above.
2. In
complying with paragraph 1 of the order, above, the respondents may mask or
delete information exempted from disclosure pursuant to §1-19(b)(3)(B), G.S.
Approved by order of the Freedom of Information
Commission at its special meeting of May 25, 1988.
Catherine
H. Lynch
Acting
Clerk of the Commission