The above-captioned matter was heard as a contested case on November 10, 1998, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The case caption has been amended to reflect the correct name of the respondent chief.

        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(1), G.S.

        2. It is found that, in late August, 1998, the complainant requested that the respondents allow her to inspect two statements signed in September and November of 1994 by an individual and filed with the respondents (hereinafter "the statements"). It is further found that the statements alleged that an officer in the respondent department committed a sexual assault against such individual.

        3. By letter dated August 27, 1998, the respondents declined to provide the statements.

        4. Having been denied the statements, the complainant appealed to the Commission by letter dated August 31, 1998, and filed September 2, 1998, alleging that the respondents thereby violated the Freedom of Information (FOI) Act.

        5. It is concluded that the statements are public records within the meaning of § 1-19(a), G.S.

        6. Section 1-19(a), G.S., provides in relevant part that:

[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 during regular office or business hours….

        7. The respondents contend that the statements are exempt from mandatory disclosure by virtue of § 1-19(b)(3)(B), G.S., which in relevant part provides a basis to withhold:

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…signed statements of witnesses….

                                        [Emphasis added].

        8. It is found that the statements are records of a law enforcement agency compiled in connection with the detection or investigation of crime.

        9. It is further found that the statements were introduced as exhibits in a federal district court civil trial.

        10. It is concluded that the respondents failed to prove that the statements are "not otherwise available to the public" within the meaning of § 1-19(b)(3)(B), G.S.

        11. The respondents contend that they should not be denied the ability to claim applicability of § 1-19(b)(3)(B), G.S., since the statements became available in federal court as described in paragraphs 9 and 10, above, over their objections and only because of the instigation of a lawsuit by another individual.

        12. However, it is concluded that the plain language of § 1-19(b)(3)(B), G.S., does not make the distinction asserted by the respondents as described in paragraph 11, above, and it is further concluded that the respondents failed to prove that such exemption applies in this matter.

        13. Accordingly, it is concluded that the respondents violated § 1-19(a), G.S., when they denied the complainant access to the statements pursuant to her request described in paragraph 2, 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 access to the statements described in paragraph 2 of the findings, above.

        2. Henceforth, the respondents shall strictly comply with requirements of § 1-19(a), G.S.

         Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 1999.

_________________________

Melanie R. Balfour

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:

Joan Coe
26 Whitcomb Drive
Simsbury, CT 06070
Alfred L. Shull, Chief of Police,
Town of Simsbury; and Police
Department, Town of Simsbury
c/o Atty. Robert M. DeCrescenzo
Updike, Kelly & Spellacy, PC
PO Box 231277
One State Street
Hartford, CT 06123-1277

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-266FD/mrb03111999