FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Ray A. Cooke and Carl Cooke,

Complainants

against Docket #FIC 87-394 and #FIC 88-6

Norwalk Police Department,

Respondent April 13, 1988

The above-captioned matters were heard as contested cases on February 16, 1988, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaints.

After consideration of the entire record, the following facts are found:

1. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. On August 24, 1987 the respondent, pursuant to a warrant, conducted a search and seizure of business premises owned by the complainants.

3. On December 4, 1987 the complainant Ray A. Cooke made a request of the respondent for access to inspect or copy the warrant issued in connection with the August 24, 1987 search and seizure.

4. By letter of complaint filed with the Commission on December 23, 1987 and docketed as #FIC 87-394 the complainant Ray A. Cooke appealed the respondent's failure to provide access to inspect or copy the requested record.

5. In December, 1987 the complainants made requests of the respondent for access to inspect or copy the underlying affidavits completed in connection with the search and seizure warrant in question.

6. By letter of complaint filed with the Commission on December 31, 1987 and docketed as #FIC 88-6 the complainants alleged that they had been denied access to the requested affidavits.

Docket #FIC 87-394 and 88-6 Page Two

7. The warrant and underlying affidavits consist of a total of 6 pages. Prior to hearing, the complainants received copies of pages 4, 5 and 6 of the document. At hearing, the respondent provided copies of pages 1 and 3. Page 2 is an informant's affidavit.

8. It is found that the affidavit in question is a public record within the meaning of §1-18a(d), G.S.

9. Section 54-33c, G.S., provides that upon its execution, a copy of a search warrant shall be given to the owner or occupant of the designated premises and within 48 hours of the search, a copy of the warrant application and all underlying affidavits shall also be provided, except where the issuing judge has dispensed with such requirement upon affidavit of the applicant.

10. The respondent cites in support of the withholding of the informant's affidavit the fact that the judge who issued the search and seizure warrant dispensed with the requirement of §54-33c, G.S., that a copy of the affidavits in support of the warrant be given to the complainants.

11. Section 54-33c, G.S. further provides, however, that if a judge dispenses with the requirement of giving a copy of the affidavits, such order shall not affect the right of an owner or occupant to obtain a copy at any subsequent time.

12. It is concluded that the complainants' rights to access to the affidavit in question are not affected by the order of the judge who issued the warrant.

13. The respondent claims that the affidavit is exempt from disclosure pursuant to §1-19(b)(3)(A), G.S., on the ground that, although the informant is not named therein, the information contained in the affidavit would allow the complainants to identify such informant.

14. The respondent also claims that the affidavit is exempt from disclosure pursuant to §1-19(b)(3)(B), G.S., based upon the adverse affect its release would have on an on-going investigation regarding the complainants.

15. The respondent requested an in camera inspection of the record in question, which request was denied.

16. It is found that to the extent that disclosure of information contained in the informant's affidavit would reveal the identity of informants not otherwise known, such information is exempt from disclosure pursuant to §1-19(b)(3)(A), G.S.

Docket #FIC 87-394 and 88-6 Page Three

17. The complainants contend that they are unaware of any prosecution pending on the subject of the search and seizure and that the respondent cannot, therefore, avail itself of the §1-19(b)(3)(B), G.S., exemption.

18. It is found, despite the apparent termination of proceedings concerning the search and seizure in question, that to the extent that disclosure of information contained in the informant's affidavit would reveal information to be used in a prospective law enforcement action, the disclosure of which would be prejudicial to such action, such information is exempt from disclosure pursuant to §1-19(b)(3)(B), G.S.

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

1. The respondent forthwith shall provide the complainants with a copy of the informant's affidavit referred to at paragraph 7 of the findings, above.

2. In complying with paragraph 1 of the order, above, the respondent may mask or delete information exempted from disclosure pursuant to §§1-19(b)(3)(A) and (B), G.S., as more specifically described at paragraphs 16 and 18 of the findings, above.

Approved by order of the Freedom of Information Commission at its regular meeting of April 13, 1988.

Catherine H. Lynch

Acting Clerk of the Commission