FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Paul Bass and New Haven Advocate,

Complainants

against Docket #FIC 1997-147

Chief of Police, East Haven Police Department;

Public Information Officer, State of Connecticut,

Department of Public Safety; State of Connecticut,

Department of Public Safety,

Respondents November 12, 1997

The above-captioned matter was heard as a contested case on September 18, 1997, at which time the complainants and the respondents appeared, and presented testimony, exhibits and argument on the complaint. At the hearing, LWWI Broadcasting, Inc., doing business as WTNH News Channel 8, was granted intervenor status in this matter.

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, 1997, the complainants requested of the respondent Chief of Police, East Haven Police Department (the “police chief”) that they be allowed to review all tapes of police radio communications between 5:45 p.m. and 6:45 p.m. on April 14, 1997, including communications to and from Officer Robert Flodquist.

3. By letter dated May 2, 1997, the complainants addressed a somewhat broader request to the respondents Public Information Officer, Department of Public Safety and Department of Public Safety (both of which respondents together are hereinafter referred to as the “department”), namely to hear the tapes of radio communications between East Haven Police Department dispatchers, supervisory personnel, and Officer Robert Flodquist and other officers involved in the chase and death of Malik Jones on the evening of April 14, 1997, including tapes for the half hour before the chase began through the hour after the shooting (the “tapes”).

4. On May 2, 1997, the respondent police chief declined to furnish the tapes to the complainants for review, and on May 6, 1997, the respondent department also declined the request of the complainants to hear the tapes.

5. By letter dated May 6, 1997, and filed on May 7, 1997, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by declining to furnish the tapes.

6. By post-hearing written submissions to the Commission dated October 6, 1997, the complainants and the intervenor stated to the Commission that the report by State’s Attorney Michael Dearington released to the public on September 22, 1997 included a transcript of a seven minute portion of the tapes, and also that, on October 2, 1997, the respondent department released audio tape copies of the seven minute portion of the tapes. The complainants and the intervenor further stated that the respondent department returned the balance of the tapes to the respondent police chief and that the respondent department did not keep a copy of the tapes. According to the complainants and the intervenor, the respondent police chief has not released to the public the balance of the tapes. The Commission makes no findings as to asserted facts recited in this paragraph.

7. Section 1-19(b), G.S., provides that various records shall be exempt from mandatory disclosure, including:

(3) 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 the disclosure of said records

would not be in the public interest because it would result in the

disclosure of …(C) information to be used in a prospective law enforcement action if prejudicial to such action…[and]

(4) records pertaining to strategy and negotiations with respect

to pending claims or pending litigation to which the public agency

is a party until such litigation or claim has been finally adjudicated

or otherwise settled….

8. It is found that, notwithstanding the fact that the original transmissions of the communications recorded on the tapes were over the public airwaves, the specific record which is at issue in this case, namely the tapes, are “not otherwise available to the public”, as the term is utilized in §1-19(b)(3), G.S.

9. It is found that the tapes do contain information that may be used in a prospective law enforcement action, but that there was no showing by the respondents concerning the specific contents of the tapes.

10. It is found that, while there was strong testimony as to how disclosure of evidence can in certain circumstances be prejudicial to a prospective law enforcement action, and there was also persuasive testimony that the tapes were of “primary importance” as a piece of evidence in a prospective law enforcement action in this case, there was no evidence of a specific concern showing that disclosure of communications recorded on the tapes would prejudice a prospective law enforcement action in this matter. All testimony concerning prejudice was generalized, hypothetical and conclusory. See City of Hartford v. Freedom of Information Commission, 201 Conn. 421 (1986).

11. It is also concluded that there is a strong “public interest”, to use the term employed by §1-19(b)(3), G.S., in disclosure of the tapes, because such disclosure would bring evidence to bear on the questions of possible racial discrimination that are raised in the minds of some citizens by the underlying controversy. Any responsible citizen or public official would hope that disclosure of the tapes would tend to disprove fears that racial discrimination was a factor in the death of Malik Jones. But the Rodney King beating in Los Angeles and the Abner Louima “police torture” case in New York City underscore the legitimate “public interest” in a widespread dissemination of the facts surrounding the death of Malik Jones.

12. It is therefore concluded that the tapes are not records of law enforcement agencies which are exempt from mandatory disclosure pursuant to §1-19(b)(3), G.S.

13. It is also found that there was no specific evidence showing that the tapes pertain to any aspect of strategy and negotiations with respect to pending claims or pending litigation.

14. It is concluded that the tapes are not exempt from mandatory disclosure as records pertaining to strategy and negotiations with respect to pending claims or pending litigation, pursuant to §1-19(b)(4), G.S.

15. It is therefore concluded that the respondents violated §§1-19(a) and 1-15(a), G.S., by failing to provide the complainants with a copy of the tapes.

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

1. The respondents shall provide the complainants with a copy of the tapes forthwith.

2. If the respondents feel that specifically identifiable prejudice to a prospective law enforcement action can be shown, the respondents should move to reopen the record and include with such motion, for an in camera inspection, the tape and a memorandum specifically identifying the prejudice likely to result to a prospective law enforcement action.

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 1997.

_________________________

Doris V. Luetjen

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:

Paul Bass and New Haven Advocate

c/o James S. Rollins

Bingham Dana & Gould LLP

100 Pearl Street

Hartford, CT 06103-4507

Chief of Police, East Haven Police Department

c/o Michael A. Albis

58 Edward Street

East Haven, CT 06512

Public Information Officer, State of Connecticut,

Department of Public Safety; State of Connecticut,

Department of Public Safety

c/o Henri Alexandre

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-147/FD/tcg/11121997