FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 17, 1996, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, officer Todd Belknap, the subject of the records at issue, was granted party status and Belknap’s union, AFSCME, was granted intervenor status. The respondent chief of police submitted the subject records to the Commission for an in camera inspection.

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 dated April 25, 1996, the complainant requested that the respondent police chief provide her with copies of all complaints and police reports wherein officer Todd Belknap is identified as a suspect or otherwise identified as the subject of a complaint.

3. By letter dated May 10, 1996, the respondent assistant town attorney stated that he was reviewing her request and that he would have a response within two weeks.

4. Thereafter by letter dated May 28, 1996, the respondent assistant town attorney denied the complainant’s request on the basis that Belknap was a defendant in a U.S. District Court lawsuit in which all discovery had been stayed pending a decision on a motion to remand the case to the superior court and that the stay, while in effect, precluded disclosure of the requested records.

5. By letter dated May 30, 1996, and filed on June 3, 1996, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying her a copy of the requested records.

6. It is found that the requested records are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

7. It is found that in October 1996, the stay described in paragraph 4., above, was lifted; thereafter, the respondents no longer claimed the stay as a basis for not disclosing the requested records.

8. However, at the hearing in this matter, the respondents contended that the requested records are exempt from disclosure pursuant to § § 1-19(b)(2), 1-19(b)(3)(G) and 1-19(b)(1), G.S., and that disclosure of the records "may implicate the privacy interests of third parties."

9. Belknap claimed that the requested records should not be disclosed in order to protect his privacy interests and those of third parties, and that disclosure would violate "Connecticut’s erased record statutes or the confidentiality guaranteed in juvenile proceedings." Belknap further claimed that the records should not be disclosed based upon a prior agreement he had with the respondent department under which the department should have removed from its records all references to misconduct that did not result in discipline four years from the date of the alleged incidents.

10. AFSCME, without specifying any applicable exemption to disclosure, objected to the disclosure of any internal affairs investigation files concerning "unsustained" complaints.

11. Section 1-19(a), G.S., provides in relevant part: [e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency … shall be public records and every person shall have the right to inspect such records promptly … or to receive a copy of such records in accordance with the provisions of section 1-15….

12. Section 1-15(a), G.S., provides in relevant part: [a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record].

13. Section 1-19(b)(2), G.S., permits the nondisclosure of "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy…."

14. It is found that the requested records are personnel or similar files within the meaning of § 1-19(b)(2), G.S.

14. In Perkins v. FOI Commission, 228 Conn. 158 (1993), the Court held that under § 1-19(b)(2), G.S., disclosure would constitute an invasion of personal privacy only when the information sought does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.

15. It is found that the requested records consist of six separate internal affairs investigations of complaints against a police officer which are legitimate matters of public concern.

16. It is further found, based on an in camera inspection of the requested records, that disclosure of such records would not be highly offensive to a reasonable person.

17. It is therefore concluded that the requested records are not exempt from disclosure pursuant to § 1-19(b)(2), G.S.

18.0Section 1-19(b)(3)(G), G.S., permits the nondisclosure of :

records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if disclosure of said records would not be in the public interest because it would result in the disclosure of … (G) uncorroborated allegations subject to destruction pursuant to section 1-20c. [Emphasis added.]

19. Section 1-20c, G.S., provides:

…[R]ecords of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

20. It is found that the requested records consist of internal investigations into alleged officer misconduct that were not compiled in connection with the detection or investigation of crime within the meaning of § 1-19(b)(3), G.S. Therefore, § § 1-19(b)(3)(G) and 1-20c, G.S., do not apply to the records at issue.

21. Section 1-19(b)(1), G.S., permits the nondisclosure of "preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

22. It is found that the respondents failed to prove that the requested records are preliminary drafts or notes within the meaning of § 1-19(b)(1), G.S.

23. It is further found that the respondents did not make any determination that the public interest in withholding the requested records clearly outweighs the public interest in disclosure, as required under § 1-19(b)(1).

24. Further, even if the requested records were preliminary drafts or notes within the meaning of § 1-19(b)(1), G.S., § 1-19(c)(1), G.S., provides that notwithstanding the provisions of § 1-19(b)(1), G.S., disclosure shall be required of:

interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions are formulated. [Emphasis added].

25. It is found that the requested records consist of reports comprising part of the process by which governmental decisions were formulated. Therefore, such records are subject to disclosure pursuant to § 1-19(c)(1), G.S.

26. It is found that Belknap failed to prove that disclosure of the requested records would violate Connecticut’s erasure statutes, as set forth in § 54-142a, G.S., et. seq.

27. It is further found that Belknap’s claim that disclosure of the requested records would violate the confidentiality of juvenile proceedings fails to state an exemption to disclosure under the FOI Act.

28. It is further found that Belknap’s claim concerning his prior agreement with the respondent department, described in paragraph 9., above, does not constitute an exemption to disclosure under the provisions of the FOI Act.

29. It is further found that AFSCME’s claim described in paragraph 10., above that "unsustained" complaints should not be disclosed, does not constitute an exemption to disclosure under the provisions of the FOI Act.

30. It is therefore concluded that the respondent violated § § 1-15(a) and 1-19(a), G.S., by failing to provide promptly to the complainant a copy of the requested records identified in paragraphs 2, and 15, above.

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 requested records, more fully described in paragraphs 2, and 15 of the findings, above, free of charge.

2. In complying with paragraph 1 of the order, above, the respondents may redact all names and personally identifying information concerning third party private citizens and/or any minor person.

3. Henceforth, the respondents shall strictly comply with the provisions of § § 1-19(a) and 1-15(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 26, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

Alice M. Gray, Esq.
Jon L. Schoenhorn & Associates
97 Oak Street
Hartford, CT 06106-1515

Chief of Police, Manchester Police Department, and Assistant Town Attorney,
Town of Manchester
c/o Thomas P. Cella, Esq.
Assistant Town Attorney
41 Center Street
PO Box 191
Manchester, CT 06045-0191

Michael J. McAndrews, Esq.
McAndrews & Lefebvre
50 Founders Plaza, Suite 108
East Hartford, CT 06108

Sgt. Otto Rhode, President - Police Union
Manchester Police Department
239 East Middle Turnpike
PO Box 191
Manchester, CT 06045-0191

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-215/FD/eal/03071997