FIC2001-133

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Joan Coe,
		Complainants
	against		Docket #FIC 2001-133
Peter N. Ingvertsen, Chief, Police Department, Town of Simsbury,
		Respondents	July 25, 2001

The above-captioned matter was heard as a contested case on April 5, 2000 at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The records at issue were reviewed in camera.

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

1. The respondent is a public agency within the meaning of §1-200(1), G.S.

2. It is found that by letter dated February 14, 2001, the complainant requested that the respondent provide her with access to inspect the complete case file #1999-008384, 7/21/99, concerning the Simsbury Police Department’s investigation and findings into Jessica Roos’ complaint against Bob Young (hereinafter “requested records”).

3. It is found that by letter dated February 21, 2001 the respondent denied the request indicating that the requested records are exempt “uncorroborated allegations” of criminal conduct.

4. Having failed to receive access to inspect the requested records, the complainant, by letter dated March 4, 2001 and filed with the Commission on March 7, 2001, appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her access to the requested records. The complainant requested that the Commission impose a civil penalty of $1000 in this matter.

5. Section 1-210(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 or to receive a copy of such records….”

6. It is found that the respondent maintains the requested records and such records are public records within the meaning of §1-210(a), G.S.

7. The respondent submitted the requested records to the Commission on May 16, 2001, for an in camera inspection (hereinafter “in camera records”). The in camera records consist of 361 pages, which have been designated IC# 2001-133-1 through 2001-133-361 for identification purposes.

8. It is found that the in camera records were compiled as a result of a criminal investigation being conducted by the Simsbury police department into allegations of sexual misconduct, on the part of Robert Young, an international figure skating coach in Simsbury and involving student figure skaters. The in camera records consist of reports updating the progress of the investigation at various stages, and one final report.

9. The respondent claims that all of the in camera records are exempt from disclosure pursuant to §§1-210(b)(2), 1-210(b)(3)(F), 1-210(b)(3)(G) and 1-216, G.S. In addition, the respondent claims that various portions of the in camera records are exempt from disclosure pursuant to §§1-210(b)(1), 1-210(b)(3)(A), 1-210(b)(3)(B), 1-210(b)(10) and 54-86e, G.S.

10. With respect to the respondents’ claim that the in camera records are exempt from disclosure pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel, medical or similar files the disclosure of which would constitute an invasion of personal privacy.”

11. It is found that the in camera records are not “personnel, medical or similar” files, within the meaning of §1-210(b)(2), G.S. It is found that the in camera records are records of a criminal investigation.

12. With respect to the respondent’s claim that the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(F), G.S., such provision 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 … the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21….

13. It is found that the in camera records are records of law enforcement agencies compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G.S. It is also found that disclosure of said records would result in the disclosure of the names and addresses of the alleged victims of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21….

14. Consequently, it is concluded that the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(F), G.S.

15. With respect to the respondent’s claim that the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(G) and 1-216, G.S., such provisions permit 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 … uncorroborated allegations subject to destruction pursuant to section 1-216.

16. Section 1-216, G.S., provides:

Except for records the retention of which is otherwise controlled by law or regulation, records 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.

17. It is found that upon the conclusion of the investigation, described in paragraph 8, above, the respondent requested the opinion of the State's Attorneys Office regarding criminal prosecution, which office determined that notwithstanding the findings of the investigation the case was lacking in other areas and therefore insufficient to bring to trial.

18. In contested case FIC 94-219, Rachel Gottlieb and The Hartford Courant v. State of Connecticut, Department of Public Safety, Division of State Police, (hereinafter “FIC 94-219”) the Commission found that Black's Law Dictionary, Sixth Edition (1990), defines “corroborate” as "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence." Ballentines Law Dictionary, Third Edition (1969) defines corroborate as "to state facts tending to produce confidence in the truth of a statement made by another." Funk & Wagnall New Standard Dictionary of the English Language (1946) defines corroborate as "to give increased support to; make more sure or evident."

19. In FIC 94-219, the Commission found in finding 13 that “the reports contain similar accounts relayed to the respondent by different interviewees concerning the allegations under investigation”. The Commission went on to find in finding 17 that “the requested reports contain allegations which were corroborated.”

20. In this case, as in FIC 94-219, it is found that the in camera records contain similar accounts of incidents and information that tend to strengthen, add weight and support allegations of misconduct.

21. Consequently, it is found that the in camera records contain allegations which were corroborated.

22. It is therefore concluded that the in camera records are not exempt “uncorroborated allegations” within the meaning of §1-210(b)(3)(G) and 1-216, G.S.

23. With respect to the respondent’s claim of exemption pursuant to §§1-210(b)(3)(A) and (B), G.S., such provisions permit 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses.

24. It is found that the in camera records contain the identity of informants and witnesses, as well as signed statements of witnesses within the meaning of §§1-210(b)(3)(A) and (B), G.S.

25. Consequently, the identity of informants and witnesses, and the signed witness statements are permissibly exempt from disclosure pursuant to §§1-210(b)(3)(A) and (B), G.S.

26. With respect to the respondent’s claim of exemption pursuant to 1-210(b)(10), G.S., such provision permits the nondisclosure of “communications privileged by the attorney-client relationship….”

27. The exemption for attorney-client privileged communications contained in §1-210(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut Law:

Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.” Lafaive v. DiLoreto, 2 Conn. App. 58, 65 (1984), Cert. Denied 194 Conn. 801 (1984).

28. It is found that the in camera records contain confidential communications between the respondent and his attorney in the context of seeking and giving legal advice.

29. It is therefore concluded that the communications described in paragraph 30, above, are privileged, within the meaning of §1-210(b)(10), G.S., and are permissibly exempt from disclosure.

30. With respect to the respondent’s claim of exemption pursuant to 1-210(b)(1), G.S., such provision permits the nondisclosure of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

31. Section 1-210(e), G.S., further provides:

Notwithstanding the provisions of [section 1-210(b)(1), G.S.] … disclosure shall be required of:

(1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency

32. It is found that the in camera records do not constitute “preliminary drafts or notes” within the meaning of §§1-210(b)(1) and 1-210(e)(1), G.S. Consequently none of the records are exempt from disclosure pursuant to §1-210(b)(1), G.S.

33. With respect to the respondent’s claim of exemption pursuant to §54-86e, G.S., such provision provides:

The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof shall be confidential and shall be disclosed only upon order of the Superior Court, except that such information shall be available to the accused in the same manner and time as such information is available to persons accused of other criminal offenses.

34. It is found that §54-86e, G.S., protects the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof. It is found that the in camera records contain the names and addresses of alleged victims of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21….

35. It is therefore, concluded that the in camera records are exempt from disclosure pursuant to §54-86e, G.S.

36. It is further concluded that the respondent did not violate §1-210(a), G.S., when he failed to provide the complainant with access to inspect the in camera records.

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

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 25, 2001.

_________________________________________

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:

Joan Coe

26 Whitcomb Drive

Simsbury, CT 06070

Peter N. Ingvertsen, Chief,

Police Department, Town of Simsbury

c/o Robert M. DeCrescenzo, Esq.

Updike, Kelly & Spellacy, PC

One State Street, Suite 2400

PO Box 231277

Hartford, CT 06123-1277

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-133/FD/paj/07/30/2001