FIC2001-431

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Jasmin Rzayeva,
		Complainants
	against		Docket #FIC 2001-431
Chief, Police Department, City of Hartford,
		Respondent	July 10, 2002

The above-captioned matter was heard as a contested case on October 9, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of §1-200(1), G.S.

2. It is found that by letter dated August 21, 2001, the complainant requested that the respondent provide her with a copy of the “police policy and procedure (rules an (sic) regulations) effective on (sic) 1996” concerning the following (hereinafter “requested records”):

a. Misconduct investigations, disciplinary procedures, forms, citizen complaint procedure;

b. Recording machines and all related information;

c. Dispatch procedures and all related information;

d. Self initiated activity and all related information, including dispatch procedure;

e. Forcible entry into a residence and all related information; and

f. Mentally ill persons and all related information.

3. By letter dated September 11, 2001 and filed with the Commission on September 14, 2001, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her a copy of the requested records.

4. Section 1-210(a), G.S., 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. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

5. It is found that the respondent maintains policies and procedures that are responsive to some of the complainant’s request. It is concluded that such policies and procedures are public records within the meaning of §1-210(a), G.S.

6. It is found that by letter dated September 10, 2001 the respondent provided the complainant with a copy of the respondent department’s policy and procedure #s 8-26, 4-3, 4-2, 3-3 and the citizen’s complaint form in English and in Spanish. The respondent informed the complainant that the records provided pertained to misconduct investigations, disciplinary procedures and citizen complaints. The respondent also provided the complainant with a copy of General Order 5-6, which refers to managing calls for service and addresses dispatch procedures, as well as training bulletins, pertaining to aggressive patrol, and which covers self-initiated activity and mentally ill persons. The respondent further informed the complainant that he does not maintain a policy that pertains to recording machines and that issues regarding forcible entry into homes are covered by state and federal law and not addressed in a policy maintained by the respondent.

7. It is found that the complainant upon receipt of the records described in paragraph 6, above, believed that the respondent had not included certain appendices with the records provided and on or about September 18, 2001, the complainant telephoned the respondent’s office and spoke with Lieutenant Dryfe, who by letter dated September 19, 2001 provided the complainant with Appendices A, B, and C from General Order 5-6. In his September 18 letter Lieutenant Dryfe apologized for any inconvenience caused by failing to provide the appendices earlier, and informed the complaint that information regarding forcible entry to a residence is covered in the Connecticut Law Officers Field Manual and that the manual, also called “The Red Book” is available from the publisher whose address and telephone number he included.

8. At the hearing on this matter, the complainant contended that although Lieutenant Dryfe provided her with copies of Appendices A, B, and C, he did not provide a copy of Appendix D, which contains the respondent department’s policy and procedure for operation in high-risk situations. The complainant contends that she received that same type of information from the public library pertaining to the Connecticut State Police and that if the state police disclosed their policy and procedure for operation in high-risk situations, so should the respondent department. The complainant also contended that as of the date of the hearing on this matter, the respondent still had not provided her with a copy of the respondent department’s policy and procedure for investigating citizen complaints.

9. With respect to the request for policies and procedures concerning citizen’s complaints, it is found that the respondent does not maintain any responsive records beyond those already provided to the complainant.

10. With respect to the remainder of the complainant’s records request as described in paragraph 2, above, it is found that only the following three records have not been provided to the complainant and therefore remain at issue in this case: the respondent department’s policy and procedure dealing with response to bank robbery alarms, the respondent department’s policy and procedure dealing with response to high- risk situations, and the respondent department’s dispatch plan, which is the same document described at paragraph 8, above, as Appendix D.

11. The respondent contends that the three records at issue, and described in paragraph 10, above, are exempt from disclosure pursuant to §1-210(b)(3), G.S., because such records contain confidential information regarding the respondent department’s procedure for responding to bank robberies and other high-risk situations, which information is not generally disclosed to the public. The respondent contends further that disclosure of these records would compromise the respondent department’s ability to safely respond to situations because those planning a crime may alter their plans according to the respondent department’s procedure for responding to such crime.

12. At the hearing on this matter, the complainant brought to the attention of the hearing officer an order issued by the court, Alvin W. Thompson, J., on September 25, 2001, in response to a discovery request filed by the complainant in the United States District Court, District of Connecticut, in connection with Jasmin Rzayeva v. Edward Foster, Mary Hazen and City of Hartford, Civil Action 3:97 CV 1385 (AWT), and which case was pending as of the date of the hearing in this matter. Such court order indicates that “the defendant [City of Hartford] shall make available to the plaintiff [Jasmin Rzayeva] the entire Hartford Police department procedure manual for her review and copying.”

13. In light of the apparent broad scope of the court’s order, described in paragraph 11, above, the hearing officer requested that the respondent’s counsel clarify whether the three records at issue here, fall within the scope of the court’s order and report back to the Commission.

14. By letter dated November 27, 2001, counsel for the respondent informed the hearing Officer that Judge Thompson issued a clarification of his September 25, 2001 order. Such clarification dated November 9, 2001 indicates, in relevant part:

The court has conducted an in camera review of the three Hartford Police Department Policies sought by the plaintiff in discovery, i.e., policies 5-6, 7-33, and 7-88. Policy 5-6 involves the Hartford Police Department’s prioritization of response to calls for service. Policy 7-33 deals with bank robberies. Policy 7-88 concerns police responses to serious incidents, including hostage situations, barricaded persons, and snipers. The court agrees with the defendant that for reasons of public safety, these policies must remain confidential and the court further concludes that there has been no showing that these policies are relevant to the plaintiff’s claim in this case….

15. It is found that policies 7-33 and 7-88, referenced by the court and described in paragraph 14, above, are the same as two of the three records at issue in this case. The third record at issue in this case, a dispatch plan, also described as Appendix D, in paragraph 8 above, was not addressed by the court. It is also found that the third record addressed by the court, and described by the court as policy 5-6, is not at issue in this case. It is found that policy 5-6 was already provided to the complainant by the respondent by letter dated September 10, 2001, described in paragraph 6, above, and in which letter policy 5-6 is described as General Order 5-6.

16. With respect to the court’s in camera review and order it is noted that the Supreme Court has 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. Chief of Police, Hartford Police Department v. Freedom of Information Commission et al., 252 Conn. 377 (2000).

17. Consequently, since the complainant’s request now at issue before this Commission was made pursuant to the FOI Act, the determination as to the disclosure of such records will be reviewed in accordance with such Act.

18. The Commission conducted an in camera review of the three records at issue. Such records have been designated in camera documents # 2001-431-01, 2001-431-02 and 2001-431-03. 2001-431-01 is policy and procedure # 7-33 and pertains to response to bank robbery alarms. 2001-431-02 is Appendix D, a dispatch plan and 2001-431-03 is policy and procedure #7-88 and pertains to police response to high-risk situations.

19. With respect to the respondent’s claim that 2001-431-01, 2001-431-02 and 2001-431-03 are exempt from disclosure pursuant to §1-210(b)(3), G.S., such provision, in relevant part 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 … (D) investigatory techniques not otherwise known to the general public….

20. It is found that 2001-431-01, 2001-431-02, and 2001-431-03 constitute law enforcement agency records not otherwise available to the public, compiled in connection with the detection or investigation of crime and disclosure of said records would not be in the public interest because it would result in the disclosure of investigatory techniques not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G.S.

21. Consequently, it is concluded that §1-210(b)(3)(D), G.S., exempts 2001-431-01, 2001-431-02 and 2001-431-03 from disclosure, and the respondent therefore did not violate §1-210(a), G.S., when he failed to provide the complainant with a copy of such 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 10, 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:

Jasmin Rzayeva

75 Oxford Street, Apt. C-3

Hartford, CT 06105

Chief, Police Department,

City of Hartford

c/o Helen Apostolidis, Esq.

Assistant Corporation Counsel

550 Main Street

Hartford, CT 06103

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-431/FD/paj/7/11/2002