FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Gary Cooper,

Complainant

against Docket #FIC 88-97

Chief George Dayton, East Hartford Police Department and East Hartford Police Department,

Respondents August 10, 1988

The above-captioned matter was heard as a contested case on May 12, 1988, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

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

1. The respondents are public agencies within the meaning of §1-18a(a), G.S.

2. In its Final Decision in consolidated cases FIC #87-264 and FIC #87-273, Gary R. Cooper v. Chief, East Hartford Police Department and East Hartford Police Department, the Commission ordered the respondents to provide the complainant with certain internal affairs division records within 40 days after the notice of Final Decision.

3. The Commission issued its notice of Final Decision in FIC #'s 87-264 and 87-273 on February 3, 1988.

4. By letter to the respondents dated February 3, 1988 counsel for the complainant provided further information regarding the nature of the complainant's request and requested notification of the number of pages involved and the cost of photocopying.

5. By letter of complaint filed with the Commission on March 22, 1988 the complainant alleged that the respondents had failed to provide the records which were the subject of FIC #'s 87-264 and 87-273 by March 14, 1988, in violation of the Commission's order. The complainant requested the Commission to impose a civil penalty against the respondents pursuant to §1-21i(b), G.S. and to refer the matter to the Office of the State's Attorney for prosecution pursuant to §1-21k(b), G.S.

Docket #FIC 88-97 Page Two

6. By letter dated March 24, 1988 the respondent chief notified counsel for the complainant that, based upon a preliminary search, the cost of copying was estimated to be $91.00.

7. By letter dated April 20, 1988 counsel for the complainant requested a final confirmation of the number of records involved and the cost of copying.

8. At hearing, the respondents stated that the requested records had been prepared and offered to release them to the complainant in exchange for the copying fee, which offer was accepted by the complainant.

9. The respondents claim that neither the imposition of a civil penalty nor a referral to the Office of the State's Attorney is appropriate because the delay in complying with the Commission's order was not without reasonable grounds.

10. It is found that the detective in charge of the internal affairs unit of the respondent department at the time of the original requests for records, Robert Kenary, resigned from the respondent department and was replaced by Lt. Dennis McQueeney in February, 1988.

11. It is found that Det. Kenary had sole responsibility for the internal affairs unit prior to his departure and was the only individual totally familiar with the content of the internal affairs unit's files.

12. It is found that shortly after being assigned to the internal affairs unit, Lt. McQueeney was assigned the task of assisting the local state's attorney in a case being prosecuted for the Town of East Hartford. As a result, Lt. McQueeney's attention to his responsibilities in the internal affairs unit was somewhat attenuated.

13. It is found that Lt. McQueeney first became aware of the Commission's order and the time frame for compliance when contacted by town counsel following the filing of the instant appeal.

14. Once the existence and time frame of the Commission's order was made known to Lt. McQueeney he was required to conduct his own search of the files, as Det. Kenary had done before him. A detective was temporarily assigned to assist Lt. McQueeney, and the task of compiling the records was completed a few days prior to hearing.

Docket #FIC 88-97 Page Three

15. It is found that the delay in providing the requested records was not without reasonable grounds within the meaning of §1-21i(b), G.S. and the Commission therefore declines to impose a civil penalty as requested by the complainant.

16. The Commission further declines to refer the matter to the Office of the State's Attorney, as requested by the complainant.

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

1. The complaint is hereby dismissed, based upon the respondents' offer and the complainant's acceptance of disclosure.

2. The Commission declines to impose a civil penalty or to refer the matter to the Office of the State's Attorney for criminal prosecution. The complainant, however, is not precluded from taking action to refer the matter for further investigation pursuant to §1-21k(b), G.S.

Approved by order of the Freedom of Information Commission at its special meeting of August 10, 1988.

Catherine H. Lynch

Acting Clerk of the Commission