FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Jon L. Schoenhorn,

Complainant

against Docket #FIC 88-20

Captain G. Patrick Tully, Commanding Officer, Labor Relations, State of Connecticut Department of Public Safety, Division of State Police,

Respondent July 27, 1988

The above-captioned matter was heard as a contested case on March 4, 1988, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The matter was continued to April 6, 1988, at which time the complainant and the respondent again appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The April 6, 1988 hearing was held in conjunction with a hearing in Docket #FIC 88-110, Paul J. Narducci v. Captain G. Patrick Tully, Commanding Officer, Labor Relations, State of Connecticut Department of Public Safety, Division of State Police.

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. By letter dated December 23, 1987 the complainant made a request of the respondent for all internal affairs complaints, investigation reports, interviews, memoranda, exhibits and conclusions concerning Trooper Alexander Jones.

3. Alexander Jones, while a state trooper, was the subject of four internal affairs complaints. As a result of one or more of the complaints, Mr. Jones was dismissed from the police force.

4. At the time of the complainant's request, the investigations in internal affairs files #87-44, #87-125 and #86-177 had been completed and the investigation in file #87-184 was pending. As of the date of hearing the investigation in file #87-184 had also been completed.

Docket #FIC 88-20 Page Two

5. By letter dated December 29, 1987 the respondent notified Mr. Jones, pursuant to §1-20a(b), G.S., of the complainant's request.

6. Mr. Jones objected, pursuant to §1-20a(c), G.S., to the release of any documents relating to internal affairs investigations concerning him.

7. By letter dated January 6, 1988 the respondent notified the complainant of Mr. Jones's objection and, pursuant to §1-20a(c), G.S., declined to release the requested records.

8. By letter of complaint filed with the Commission on January 15, 1988 the complainant appealed the respondent's denial of his request for records and requested the imposition of a civil penalty pursuant to §1-21i(b), G.S.

9. At hearing, party status was requested by and granted to Alexander Jones and to Neville Brooks, who was, with Mr. Jones, the subject of file #87-184. Intervenor status was granted at hearing to Gregory Lyons and intervenor status is hereby granted to the Connecticut State Police Union.

10. Mr. Brooks claimed at hearing that P.A. 87-285 is unconstitutional to the extent it allows a public agency to disclose records without obtaining the approval of the subject of the records, and conditions the exercise of an objection to disclosure upon the assistance of an attorney.

11. It is found that Mr. Brooks's claim with respect to the constitutionality of P.A. 87-285 is not relevant to the instant appeal because the respondent did not, in fact, release the records of which Mr. Brooks is a subject prior to a hearing. The Commission notes further that the alleged unconstitutionality of P.A. 87-285 is not a matter within the Commission's jurisdiction.

12. It is found that the state police internal affairs records in question are public records within the meaning of §1-18a(d), G.S.

13. It is further found that the records in question are personnel or medical files or similar files within the meaning of §1-19(b)(2), G.S.

14. It is found, however, that there is a legitimate and overriding public interest in the performance of police officers and in their fitness to perform, including any allegations of misconduct. Such legitimate public interest extends to both cases in which there has been a finding of culpability and those where none has been found.

Docket #FIC 88-20 Page Three

15. It is concluded that to the extent the records in question pertain to Mr. Jones's actual performance as a police officer, his fitness to perform as a police officer, or to allegations concerning such performance or fitness to perform, disclosure of such records would not constitute an invasion of personal privacy within the meaning of §1-19(b)(2), G.S.

16. It is found that the respondent's belief that disclosure of the files in question would constitute an invasion of Mr. Jones's privacy is not supported by law, but was not without reasonable grounds within the meaning of §1-21i(b), G.S.

17. The respondent claims that the files in question contain references to persons, both civilians and police officers, other than Mr. Jones and Mr. Brooks, and that disclosure of information concerning such persons would constitute an invasion of their personal privacy within the meaning of §1-19(b)(2), G.S.

18. It is found that to the extent any of the files in question records the non-criminal activities of persons other than police officers, the disclosure of which would constitute an invasion of personal privacy, such information is exempt from disclosure pursuant to §1-19(b)(2), G.S.

19. The respondent claims with respect to file #86-177 that, although not directly related to the arrest of a juvenile, some of the information contained therein refers to the arrest of a juvenile and is, therefore, exempt pursuant to §§1-19(b)(3)(D) and 46b-124, G.S.

20. The respondent also claims with respect to file #86-177 that some of the information contained therein refers to undercover activity by New Britain police officers, that disclosure of such information might endanger the officers and jeopardize their undercover activities, and that such information is, therefore, exempt from disclosure pursuant to §1-19(b)(3)(B), G.S.

21. It is found that the respondent failed to prove, with respect to file #86-177, that disclosure of such file would not be in the public interest because it would result in the disclosure of the arrest records of a juvenile or any investigatory files relating thereto, compiled for law enforcement purposes within the meaning of §1-19(b)(3)(D), G.S.

22. However, §46b-124, G.S. provides for confidentiality with respect to records of cases of juvenile matters, as defined in §46b-121, G.S.

Docket #FIC 88-20 Page Four

23. It is found that to the extent file #86-177 constitutes a record of a juvenile matter within the meaning of §46b-121, such file is exempt from disclosure pursuant to §46b-124, G.S.

24. It is found that to the extent file #86-177 contains information relating to undercover activity by New Britain police officers, such file is a record of a law enforcement agency not otherwise available to the public, compiled in connection with the detection or investigation of crime.

25. It is further found that to the extent disclosure of information contained in file #86-177 relating to undercover activity by New Britain police officers 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, such information is exempt from disclosure pursuant to §1-19(b)(3)(B), G.S.

26. The respondent claims with respect to file #87-44 that some of the information contained therein refers to Mr. Jones's off-duty living situation, that disclosure of such information might invade the personal privacy of Mr. Jones and his co-habitant, and that such information is, therefore, exempt from disclosure pursuant to §1-19(b)(2), G.S.

27. It is found that to the extent file #87-44 contains information unrelated to Mr. Jones's performance as a police officer, his fitness to perform as a police officer or to allegations concerning such performance or fitness to perform, the disclosure of which would invade his personal privacy, such information is exempt from disclosure pursuant to §1-19(b)(2), G.S.

28. The respondent claims that at the time of the complainant's request, file #87-184 was exempt from disclosure pursuant to §1-19(b)(1), G.S. because the investigation had not been completed. The respondent further claims that he did not want to release file #87-184 prior to granting Mr. Jones the opportunity to respond to the allegations contained therein. The respondent does not claim that such reasons for withholding the documents still apply.

29. It is found that the respondent failed to prove that the records contained in file #87-184, at the time of the complainant's request, constituted preliminary drafts or notes within the meaning of §1-19(b)(1), G.S.

Docket #FIC 88-20 Page Five

30. It is also found that nothing in the Freedom of Information Act permits the preconditioning of disclosure on whether there has been an opportunity for the subject of records to respond to allegations contained therein.

31. The respondent claims that file #87-184 continues to be exempt from disclosure pursuant to §1-19(b)(3)(C), G.S. because it identifies state police patrol locations and contains minimum staffing information.

32. It is found that the respondent failed to prove that information contained in file #87-184 concerning state police patrol locations as of late 1987 or minimum staffing information of the same vintage is exempt from disclosure pursuant to §1-19(b)(3)(C), G.S.

33. It is found that the complainant did not request information relating to Mr. Brooks. Because Mr. Brooks was not a subject of the request, the Commission declines to order disclosure of information contained in file #87-184 which relates exclusively to him.

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 complainant with access to inspect or copy internal affairs files #86-177, #87-44, #87-125, and #87-184.

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)(2), 1-19(b)(3)(B) and 46b-124, G.S., as more specifically referred to at paragraphs 18, 23, 25 and 27 of the findings, above.

3. In complying with paragraph 1 of the order, above, the respondent may mask or delete information which relates exclusively to Neville Brooks, whose records were not a subject of the complainant's request. To the extent certain information may relate inextricably to both Mr. Jones and Mr. Brooks, the respondent may mask or delete references to Mr. Brooks's identity.

4. The Commission declines to impose a civil penalty, as requested by the complainant.

Approved by order of the Freedom of Information Commission at its special meeting of July 27, 1988.

Catherine H. Lynch

Acting Clerk of the Commission