FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Jon D. Biller, |
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Complainants |
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against |
Docket #FIC 2001-020 |
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Chief, Police
Department, Town of Enfield; |
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Respondents |
June 27, 2001 |
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The above-captioned matter was heard as a contested case on February 8, 2001 at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.
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 §1-200(1), G.S.
2. It is found that by letter dated December 5, 2000, the complainant requested that the respondent police department provide him with the following:
a complete copy of your current investigative report, interim reports, local Fire Marshall’s report to the State Fire Marshall’s Department, run reports, and any related documents or correspondence pertaining to, or statements taken, including a complete list of any evidence removed from, as well as unedited video tapes and all photographs taken of the fire which took place at 276 North Maple Street in Enfield, CT.
(hereinafter “requested records”).
3. It is found that that by letter dated January 9, 2001 the complainant again requested that the respondent police department provide him with a copy of the requested records.
4. It is also found that by letters dated January 9, 2001, the complainant requested that the respondents Shaker Pines Fire Department and Fire Marshall provide him with a copy of the requested records.
5. Having failed to receive the requested records, the complainant, by letter dated January 11, 2001, and filed on January 16, 2001, appealed to the Commission alleging that the respondents violated the Freedom of Information Act by denying him a copy of the requested records.
6. Section 1-200(5), G.S., defines "public records or files" as: “[a]ny recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”
7. Section 1-210(a), G.S., further provides in relevant part:
Except 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 or to receive a copy of such records in accordance with the provisions of section 1-212. [Emphasis added.]
8. With respect to the requests to the respondent police department, as described in paragraphs 2 and 3, above, it is found that the respondent police department received the January 9, 2001 request on January 10, 2001.
9. It is found that shortly
thereafter the respondent police department informed the complainant that “this
case is still under investigation and cannot be given out.” It is also found
that by letter dated January 16, 2001, counsel for the respondent police
department informed the complainant that the respondent police department had
not been aware of his previous requests.
10. It is found that the respondent police department maintains records that are responsive to the complainant’s requests, which records it has not made available to the complainant. Specifically, the records maintained are police reports created by the respondent police department and by the state police, witness statements, deposition of James Kelis, two rolls of film and a list of property removed from the site of the fire.
11. It is concluded that the records maintained by the respondent police department and described in paragraph 9 above, are “public records” within the meaning of § §1-200(5) and 1-210(a), G.S. It is also concluded that, to the extent other records that are responsive to the complainant’s request are maintained by the respondent police department, such records are also “public records” within the meaning of § §1-200(5) and 1-210(a), G.S.
12. At the hearing on this matter the respondent police department indicated that it is prepared to turn over the list of property removed from the site of the fire to the complainant. However, the respondent police department claims that the remaining records are exempt from disclosure pursuant to §1-210(b)(3)(B) and (C), G.S.
13. Section 1-210(b)(3)(B) and (C), 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 the disclosure of said records would not be in the public interest because it would result in the disclosure of … (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action….
14. It is found that the records maintained by the respondent police department are records of law enforcement agencies that were compiled in connection with the detection or investigation of the crime of arson.
15. It is also found that some of the records maintained by the respondent police department constitute “signed statements of witnesses”, and are therefore exempt from mandatory disclosure within the meaning of §1-210(b)(3)(B), G.S.
16. However, it is also found that the respondent police department failed to provide any evidence, and therefore failed to prove, that the remaining records constitute “information to be used in a prospective law enforcement action” and that disclosure of such records would be prejudicial to such action within the meaning of §1-210(b)(3)(C), G.S. and Department of Public Safety v. FOIC, 51 Conn. App. 100 (1998). Pursuant to Department of Public Safety v. FOIC, §1-210(b)(3)(C), G.S., does not require that an investigation be closed before disclosure is required, and additionally, the statute is not satisfied and information is not exempted from disclosure by the mere good faith assertion that the matter to which the information pertains is “potentially criminal”.
17. Consequently, it is concluded that, with the exception of the signed statements of witnesses, the records maintained by the respondent police department, are not exempt from disclosure pursuant to §1-210(b)(3), G.S.
18. It is further concluded that, with the exception of the signed statements of witnesses, the respondent police department violated §1-210(a), G.S., when it failed to promptly provide the complainant with a copy of the records it maintains.
19. With respect to the request to the respondents Shaker Pines Fire Marshall and Fire Department as described in paragraph 4, above, the complainant contends that he had previously sent requests dated December 5, 2000 to such respondents and received no response, following which he sent the January 9, 2001 requests. It is found however, that the December 5, 2000 requests were not sent to the respondents Shaker Pines Fire Marshall and Fire Department, but were sent to “Fire Chief, Enfield Fire Department” and “Fire Marshall, Enfield Fire Department”, who are not the respondents Shaker Pines Fire Marshall and Fire Department. It is found that the only requests received by the respondent Shaker Pines Fire Marshall and Fire Department from the complainant are the January 9, 2001 requests.
20. It is found that the respondents Shaker Pines Fire Marshall and Fire Department maintain the following records which are responsive to the complainant’s requests, and which they have not provided to the complainant: incident report, NFIRS report and a copy of the state Fire Marshall’s report.
21. It is found that by letter dated January 17, 2001, the respondent Shaker Pines Fire Marshall made available to the complainant copies of the “SPFD run sheet” and the Shaker Pines Fire Marshall’s report to the state Fire Marshall. However, the respondent Shaker Pines Fire Marshall indicated that requests for the remaining records “should be directed to the Enfield Fire Department.”
22. At the hearing on this matter, the respondent Shaker Pines Fire Marshall indicated that at present he is willing to provide the complainant with the incident report and the NFIRS report. However, he contends that the remaining records he has are exempt from disclosure pursuant to §1-210(b)(3)(C), G.S., and further, that the respondent police department asked him not to disclose such records.
23. It is concluded that with respect to the incident report and the NFIRS report, which were only made available to the complainant during the hearing in this matter, such records were not provided promptly to the complainant, and therefore, the respondents Shaker Pines Fire Marshall and Fire Department violated §1-210(a), G.S.
24. With respect to the state Fire Marshall’s report and any other records maintained by the respondents Shaker Pines Fire Marshall and Fire Department that are responsive to the complainant’s requests, it is found that such records are records of law enforcement agencies that were compiled in connection with the detection or investigation of the crime of arson.
25. However, it is found that the respondents Shaker Pines Fire Marshall and Fire Department failed to provide any evidence and therefore failed prove that the records described in paragraph 24, above, constitute “information to be used in a prospective law enforcement action” and that disclosure of the records would be prejudicial to such action, within the meaning of §1-210(b)(3)(C), G.S., and Department of Public Safety, supra.
26. Consequently, it is concluded that the respondents Shaker Pines Fire Marshall and Fire Department violated §1-210(a), G.S., when they failed to promptly provide the complainant with a copy of the state Fire Marshall’s report and any other records maintained by them that are responsive to the complainant’s requests.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. Forthwith, the respondent police department shall provide the complainant with a copy of the requested records, as more specifically described in paragraph 10 of the findings, above, and all records that they have that are responsive to the complainant’s request, as described in paragraph 2 of the findings, above, except the signed statements of witnesses.
2. Forthwith, the respondents Shaker Pines Fire Marshall and Fire Department shall provide the complainant with a copy of the state Fire Marshall’s report, as well as the incident report and the NFIRS report which they indicated at the hearing they would make available to the complainant, and all records that they have that that are responsive to the complainant’s requests, as more fully described in paragraphs 2 and 4 of the findings, above, except the signed statements of witnesses.
3. Henceforth, the respondents shall strictly comply with the disclosure provisions set forth at §1-210(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 27, 2001.
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Petrea A. Jones
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:
Jon D. Biller
c/o Benjamin R. Boutaugh, Jr., Esq.
Biller, Sachs, Raio & Bonadies
2750 Whitney Avenue
Hamden, CT 06518
Chief, Police Department,
Town of Enfield
c/o Mark J. Cerrato, Esq.
Office of the Town Attorney
820 Enfield Street
Enfield, CT 06082
Shaker Pines Fire Department,
Town of Enfield; and
Fire Marshall, Shaker Pines
Fire Department, Town of Enfield
c/o Robert B. Berger, Esq.
Berger & Santy, P.C.
709 Enfield Street, PO Box 1163
Enfield, CT 06083-1163
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Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-020/FD/paj/06/29/2001