FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Edward Peruta,

Complainant

against Docket #FIC 93-308

O. Paul Shew, Rocky Hill Town Manager/Public Safety Director and Curtis

Roggi, Rocky Hill Town Attorney,

Respondents April 27, 1994

The above-captioned matter was heard as a contested case on February 4, 1994, at which time the complainant and respondents appeared and presented testimony, exhibits and argument on the complaint. The case caption has been corrected to properly reflect the municipal offices held by the respondents.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

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

2. By letter of complaint dated November 9, 1993, and filed with the Commission by facsimile transmission on November 10, 1993, the complainant alleged that the respondents failed to promptly comply with his November 9, 1993 request for copies of the following documents:

(a) the inventory of former Rocky Hill (hereinafter "town") Police Chief Schnabel's office;

(b) correspondence regarding the inventory of Schnabel's office;

(c) bills submitted by and checks paid to the company that conducted the inventory of Schnabel's office;

(d) correspondence, directives or opinions from the state's public records administrator [sic] regarding the contents of Schnabel's office;

Docket #FIC 93-308 Page 2

(e) the exterior of all diaries, logs or journals that were found in Schnabel's office;

(f) legal opinions submitted by the respondent town attorney regarding "legal opinions, prompt access, or the handling of FOI requests for access to public records;"

(g) certified copies of written settlements and agreements entered into by the town and complainant pertaining to FOI Act complaints since July 1, 1988.

3. The complainant also requested the imposition of civil penalties and a referral of the matter to the state's attorney's office for criminal investigation into his allegation of perjury in accordance with 1-21k(b), G.S.

4. The Commission takes administrative notice of the case file, record and final decision in docket #FIC 92-213, Peruta against Shew, et al. (hereinafter "FIC 92-213").

5. At the hearing in this matter the complainant amended his complaint to limit his allegation to the failure of the respondents to provide him with copies of the exteriors of all diaries, logs or journals that were found in Schnabel's office (hereinafter "covers").

6. It is found that at some undetermined time before July 1993 the diaries, including their covers, were removed from Schnabel's former office.

7. It is found that on or about November 12, 1993, following the complainant's November 9, 1993 records request, the respondent town manager contacted Mr. Schnabel and requested the return of the diaries and covers.

8. It is found that four or five spiral notebooks purportedly comprising the diaries and covers were returned to the respondent town attorney on or about November 18, 1993.

9. The respondents concede that the diaries and requested covers are public records within the meaning of 1-18a(d) and 1-19, G.S.

10. It is found that on or about November 19, 1993, the diaries and covers were placed in a safety deposit box in a vault at the Equity Bank in Wethersfield, Connecticut leased in the name of the respondent town attorney, in violation of 1-19(a), G.S.

Docket #FIC 93-308 Page 3

11. The respondents argue that disclosure of the covers is precluded by:

(a) the Commission's order in FIC 92-213 which constitutes res judicata in this matter;

(b) a protective order issued in Peruta v. Schnabel, et al., No. 2:92CV00719 (AHN), U.S. Dist. Ct. (Conn. 1992); and

(c) operation of the 1-19(b)(1), G.S., exemption.

12. In pertinent part, the Commission's order in FIC 92-213 concerning the covers states:

8. It is found that the [covers are] in an office secured by the respondent public safety director. The respondents claim that [the covers are] exempt pursuant to 1-19(b)(4), G.S. ...

12. It is ... concluded that the respondents failed to establish that the [covers are] exempt from disclosure pursuant to 1-19(b)(4), G.S....

...

[The Commission, however, stated that:]

[w]ith respect to the [covers] the Commission, in its remedial discretion, declines to order disclosure of such....

13. The complainant argues that the facts which were presented to the Commission in FIC 92-213 regarding the covers at issue here were subsequently proven to be incorrect in that at all times material neither the covers nor the diary contents were in an office secured by the respondent town manager, as reflected in paragraphs 6 through 8 of the findings, above.

14. Based on its findings of fact in this matter, and the respondents' admissions that at all times material the facts were not as testified to and reported in FIC 92-213, the Commission declines to give FIC 92-213 res judicata effect in this case.

Docket #FIC 93-308 Page 4

15. It is found that the protective order approved by the federal magistrate in Peruta v. Schnabel, was expressly limited to the facts as set forth in the defendants' motion for protective order and brief in support of that motion.

16. In their motion for protective order, and brief in support of that motion, the defendants in Peruta v. Schnabel, alleged that the subpoena duces tecum issued to the town's police chief Philip Dunn for the production of Schnabel's diaries could not be complied with because Mr. Dunn as the deponent did not have possession or control of the diaries, and therefore the production request had been directed to the wrong party.

17. It is therefore found that the protective order in Peruta v. Schnabel, in no way determined that the covers at issue were confidential or otherwise subject to a claim of exemption under any provision of Connecticut's Freedom of Information Act.

18. The respondent town attorney argued that when Schnabel returned the diaries with covers to him in mid-November 1993, he observed that there was handwriting on the front cover of the first diary and on the back cover of the last diary, and therefore he concluded that 1-19(b)(1), G.S., applied.

19. It is found that the respondents failed to allege or prove that the handwriting observed on the two covers were in fact preliminary drafts or notes within the meaning of 1-19(b)(1), G.S., or that it would be in the public interest to withhold disclosure of the records containing such handwriting.

20. It is therefore concluded that the exemption set forth in 1-19(b)(1), G.S., is inapplicable to the covers at issue.

21. It is further found that the respondents have failed to either allege or prove the applicability of any exemption to the disclosure provisions of 1-15 and 1-19(a), G.S.

22. It is therefore concluded that the respondents violated the disclosure provisions of 1-15 and 1-19(a), G.S., when they failed to provide the complainant with a copy of each of the covers requested.

23. Having found no evidence of perjury in this matter, the Commission declines to make any referral to the state's attorney's office as requested by the complainant.

Docket #FIC 93-308 Page 5

24. Additionally, it is found that the respondents' violations of the rights conferred by 1-15 and 1-19(a), G.S., were wholly and patently unreasonable.

The following order by the Commission is hereby recommended

on the basis of the record concerning the above-captioned complaint:

1. The respondents shall forthwith provide the complainant with a copy of the covers at issue.

2. The Commission imposes a civil penalty against each of the named respondents in the amount of one hundred and fifty dollars ($150.00) for a total civil penalty of three hundred dollars ($300.00). The aforementioned civil penalties shall be remitted to the Commission within thirty days of the date of the mailing of the notice of final decision in this case.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 1994.

Elizabeth A. Leifert

Acting Clerk of the Commission

Docket #FIC 93-308 Page 6

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Mr. Edward A. Peruta

P.O. Box 307

Rocky Hill, CT 06067

O. Paul Shew, Rocky Hill Town Manager/Public Safety Director and Curtis Roggi, Rocky Hill Town Attorney

c/o Curtis H. Roggi, Esq.

2080 Silas Deane Highway

Suite 301

Rocky Hill, CT 06067

Elizabeth A. Leifert

Acting Clerk of the Commission