FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by

FINAL DECISION
Ethan Book, Jr.,

 

Complainants

 

 

against

 Docket #FIC 2001-490

Chief, Police Department, City of

Stamford

 

 

Respondent

 May 8, 2002

 

 

 

 

 

The above-captioned matter was heard as a contested case on February 22, 2002, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant’s post hearing request dated March 6, 2002 and filed on March 8, 2002 to present additional evidence is denied.

           

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 October 18, 2001, sent via facsimile, the complainant requested that the respondent provide him with a copy of “documentation” of a telephone call that Sergeant Anthony Lupinacci stated he made to the complainant from the respondent department to the complainant in Fairfield, Connecticut, in connection with incident #01-0105-0216 following a January 6, 2001 meeting between the complainant and Sergeant Lupinacci, and during which Sergeant Lupinacci verbally warned the complainant (hereinafter “requested records”). 

 

3.  Having failed to receive a response, the complainant appealed to the Commission by letter dated and filed on October 26, 2001, alleging that the respondent violated the Freedom of Information (“Act”) by denying him a copy of the requested records.

 

4.  Section 1-200(5), G.S., defines “public records” as follows:

 

Public records or files means any 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.

 

5.  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, whether or not such records are required by any law or by any rule or regulation, 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.

 

6.  It is found that to the extent that the respondent maintains “documentation” of the telephone call in question, such documentation is responsive to the complainant’s request and such “documentation” constitutes “public records” within the meaning of §§1-200(5) and 1-210(a), G.S.

 

7.  At the hearing in this matter Sergeant Lupinacci indicated that he believed he made one call to the complainant; the respondent also stipulated that a record may exist, and that the department’s telephone records could be searched.

 

8.  The respondent contends that the complainant should have made his records request during  “discovery” of a criminal case, described more fully below in paragraph 10, which was brought against the complainant for harassment, and that any record that the respondent may have that is responsive to the complainant’s request the complainant is not entitled to pursuant to §1-213, G.S.

            9.  Section 1-213,(b)(1), G.S., provides, in relevant part:

Nothing in the Freedom of Information Act shall be deemed in any manner to … limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state.  [Emphasis added.]

10.  It is found that the complainant was arrested on January 19, 2001 for harassment and stalking.  The stalking charge was dropped but the complainant was prosecuted and convicted on 24 separate counts of harassment in violation of §53a-183, G.S.  The complainant was sentenced on October 31, 2001. The complainant has appealed his conviction and such appeal is pending in the appellate court.  It is also found that the complainant has filed a civil lawsuit against Sergeant Lupinacci which civil suit is pending in superior court.

11.  With respect to the respondent’s contention that the complainant is barred by §1-213(b)(1) G.S., from obtaining the requested telephone documentation, it is found that the Supreme Court has ruled that a public agency must disclose records under the FOI Act even if those records are, or might be, subject to the rules of discovery in either federal or state court proceedings.  Chief of Police, Hartford Police Department v. Freedom of Information Commission et al., 252 Conn. 377 (2000). 

12.  In Chief of Police, Hartford Police Department v. Freedom of Information Commission, the plaintiff claimed that requiring disclosure of the documents in question, which also had been the subject of discovery proceedings in a civil rights action in the United States District Court, would limit the rights of the plaintiff as a litigant under the laws of discovery in violation of §1-213(b)(1), G.S.  The Supreme Court concluded that questions of whether records are disclosable under the FOI Act are separate from questions of whether the same records are or would be discoverable in litigation. And that requests for records under the FOI Act are to be determined by reference to the provisions of that Act, irrespective of whether they are or otherwise would be disclosable under the rules of state discovery, whether civil or criminal.  The Court further concluded that the term "to limit the rights of litigants under the laws of discovery of this state" should be interpreted as prohibiting the use of the FOI Act to restrict the rights of parties seeking information through discovery.

13.  Based on the record in this case, it is concluded that to the extent that the respondent has documentation of the telephone call made by Sergeant Lupinacci to the complainant, the respondent violated §1-210(a), G.S., when he failed to provide the complainant with a copy of such record promptly.

14.  The respondent further contends that the complainant is harassing Sergeant Lupinacci in that he has filed the civil lawsuit against Sergeant Lupinacci, he has filed a complaint with the respondent against Sergeant Lupinacci, he has requested Sergeant Lupinacci’s personnel file and he has called Sergeant Lupinacci twenty times.  The respondent requests that the Commission impose a civil penalty upon the complainant.

15.  Section §1-206(b)(2), G.S., in relevant part, permits the Commission to impose a civil penalty of not less than twenty dollars nor more than one thousand dollars against a person:

If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184….

16.  It is found that the respondent failed to prove that the complainant’s appeal to this Commission was taken “frivolously, without reasonable grounds and solely for the purpose of harassing” the respondent, within the meaning of §1-206(b)(2), G.S.  Consequently, the request for a civil penalty is denied.

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

 

1.  Forthwith the respondent shall provide the complainant with a copy of the record of the telephone call from Sergeant Lupinacci to the complainant, as more fully described in paragraph 2 of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 8, 2002.

 

 

_______________________________________

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:

 

Ethan Book, Jr.

PO Box 1385

Fairfield, CT 06432

 

Chief, Police Department

City of Stamford

c/o Barry J. Boodman, Esq.

Assistant Corporation Counsel

888 Washington Boulevard

PO Box 10152

Stamford, CT 06904-2152

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-490/FD/paj/5/13/2002