FIC2001-496

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
James Cegielski, Rick Smolicz, John Hutt and Connecticut Independent Police Union Local #2,
		Complainants
	against		Docket #FIC 2001-496
Chief, Police Department, Borough of Naugatuck; and Police Commission, Borough of Naugatuck,
		Respondents	October 23, 2002

The above-captioned matter was heard as a contested case on December 19, 2001, and January 30, 2002, at which times the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The above captioned complaint was consolidated with Docket #FIC 2001-545, Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Borough of Naugatuck; and Police Commission, Borough of Naugatuck. The Commission takes administrative notice of the record and final decision in Docket #FIC 2001-384, Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck.

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. By letter dated October 26, 2001 and filed on October 29, 2001, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI’) Act by:

a. failing to comply with their September 10 and October 12, 2001 requests for access to listen to and if necessary to copy the audiotape recordings of the respondent commission’s August 2001 meeting;

b. refusing to allow appropriate members of the respondent department to sign for certified mail directed to the respondent chief, causing the complainants’ September 10, 2001 request for access to listen and copy the audiotape recording of the respondent commission’s August 2001 meeting to be returned to the complainant marked “unclaimed”;

c. failing to comply with their September 30, 2001 and October 12, 2001 requests for a copy of “all of the policy and procedures and rules and regulations of the Naugatuck police department;”

d. failing to comply with complainant Smolicz’ September 30, 2001 and October 12, 2001 requests for records related to Naugatuck police department complaints, and the charges related thereto, which should have included: a complete list of all police officers compensated to attend arbitration hearings; a complete list of all officers disciplined; subsequent punishment; signed and unsigned documents acknowledging the charge and/or punishment; records indicating when the complaint was received; and records indicating the time that expired between receipt of the complaint and when the officer was exonerated, fired, suspended or received any other type of positive or negative discipline;

e. failing to comply with their October 12, 2001 request for access to listen to and receive a copy of the tape recordings of the respondent commission’s September and October meetings;

f. discussing matters at its September 25, 2001 special meeting that were not on the agenda for that meeting;

g. requiring complainant Smolicz, as steward of the police union, to pay the hourly rate plus one half of a Lt. Bozenski’s salary in order to listen to and possibly obtain a copy of the audiotape recordings of the respondent commission’s June, July, August, September, and October 2001 meetings;

h. conducting business at the respondent commission’s October 16, 2001 meeting that was not on the agenda for that meeting;

i. moving its regular meeting of October 16, 2001 from one location to another and for failing to post notice of the agenda of that meeting at the new location;

j. including in the minutes of the respondent commission’s October 16, 2001 meeting that a tape recording of the meeting is available in the office of the Recording Secretary of the Naugatuck Police Commission for further review.

The complainant requested certain remedies which included that this Commission declare null and void the discussion and actions taken at the respondent commission’s September 25, 2001 and October 16, 2001 meetings and to require the respondent commission to maintain the audiotape recordings of its meetings at the Naugatuck town hall.

3. It is concluded that the Commission lacks jurisdiction over the allegations in the complainants’ complaint that allege violations that precede September 29, 2001, as described in paragraph 2a and 2b, above, since the letter of complaint was not filed with the Commission or postmarked within the prescribed time limits set forth in §1-206(b), G.S., and such allegations will not be considered herein.

4. With respect to the allegations subsequent to September 29, 2001 as described in paragraph 2a, 2c, 2d, 2e,and 2g, above, §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, 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.

5. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

6. It is found that the requested records, described in paragraph 4, above, to the extent that such records exist, are public records within the meaning of §1-212, G.S.

7. With respect to the complainants’ allegation described in paragraph 2a, above, it is found that at the time of the hearing on this matter, the complainants had obtained a copy of the audiotape recording of the respondent commission’s August meetings pursuant to the October 12, 2001 request.

8. It is also found, however, that the complainants did not obtain the audiotape recording of the respondent commission’s August meetings pursuant to the October 12, 2001 request until after the complaint in this matter was filed, which was over two weeks from the time of the complainants’ request.

9. It is found that the respondent commission claimed no exemption from disclosure with respect to the audiotape recordings of the August 2001 meetings nor did it provide an explanation for its delay in complying with the complainants’ October 12, 2001 request.

10. It is found that the respondent commission failed to “promptly” comply with the complainants’ October 12, 2001 request within the meaning of §§1-210(a) and 1-212(a), G.S. and it is concluded that the respondent commission thereby violated the provisions thereof.

11. With respect to the complainants’ allegation described in paragraph 2c, above, it is found the complainants’ request was forwarded to an Officer Butler who responded to the complainants’ request on behalf of the respondent chief.

12. It is found that Officer Butler provided complainant Smolicz with a copy of the Naugatuck police department’s (hereinafter “the department”) standard policy and procedures manual on three different occasions and the department’s rules and regulations manual on at least one occasion and further provided the complainants with any memoranda or bulletins related to the department’s policies, procedures, rules and regulations that the complainants specifically requested.

13. At the hearing on this matter, complainant Smolicz conceded that he received some records responsive to his request but that his request was intended to include the standard manuals and any other policies, procedures, rules and regulations of the department that may have been issued through memoranda or bulletins. Complainant Smolicz claimed that the respondent chief did not provide all of the policies, procedures, rules and regulations of the department issued through memoranda and gave as an example a “Rule 30”. Complainant Smolicz explained that he had to specifically request “Rule 30” because it was not included in the records provided to him by Officer Butler and that he became aware of Rule 30 only after he had heard it mentioned at one of the respondent commission’s meetings. The complainants contend that the respondent chief should have provided any and all records that constitute a policy, procedure, rule or regulations within the department whether it be in a memo, a bulletin or in the standard manuals whether specifically requested or not.

14. At the hearing on this matter, the respondents claimed that the police department defines and maintains policy memoranda separately from those policies and procedures in the standard manuals and therefore it would not have been reasonable for Officer Butler to consider them as part of the complainants’ request. The respondents further argued that copies of the policy memoranda are readily accessible because they are maintained in several different places throughout the department and by several department personnel and that complainant Smolciz, as a sergeant with the department, should have had a copy as well.

15. It is found that the department issues policies, procedures, rules and/or regulations, or directives through memoranda and bulletins that may override or clarify those in the standard manuals provided to the complainants.

16. It is found that the failure of an officer to comply with any policies, procedures, rules and/or regulations, or directives issued through a memo or bulletin could result in disciplinary action against such officer.

17. It is found that at the time of the complainants’ request, an individual would have had to first be aware that such memoranda or bulletins exist in order to specifically request a copy of them.

18. It is found therefore that the only reasonable method of requesting a copy of the memoranda or bulletins would be to make a request for a copy of any and all policies, procedures, rules or regulations issued by the department.

19. Consequently, it is found that the memoranda and bulletins fall within the scope of the complainants’ September 30 and October 12, 2001 requests and that Officer Butler’s continued provision of just the standard manuals demonstrates that he narrowly read the complainants’ request, which was unreasonable under the circumstances described in paragraphs 15 through 18, above.

20. It is found therefore that the respondent chief failed to provide the complainants with copies of all records responsive to the September 30 and October 12, 2001 requests and it is concluded that he thereby violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

21. It is also found, however, that by the time of the hearing on this matter, the department had revised its standard policy and procedure manual and its rules and regulations manual to incorporate all those issued through memoranda and bulletins prior to January 2002.

22. With respect to the complainants’ allegation described in paragraph 2d, above, it is found that as of the date of the hearing on this matter, the respondents had not responded to the complainants’ request.

23. At the hearing on this matter the respondents argued that the complainants’ request was unclear and overly broad. The respondents claimed that the deputy chief of the department, at the direction of the respondent chief, requested through the chairman of the Naugatuck Police Union that complainant Smolicz clarify his request and that because he never received such clarification, the respondent chief did not respond to the complainants’ request. The respondents further claimed that the lists the complainants requested, as described in paragraph 2d, above, do not exist and that disclosure of some of the requested records would clearly constitute an invasion of the personal privacy of the officers.

24. The complainants contend that the records responsive to complainant Smolicz’s request would be a series of documents, some of which would be hand-written and others computer generated, and that the records can be provided with the names of any officer redacted. The complainants also contend that many of the records responsive to the request, specifically those regarding compensation to officers for attending arbitration hearings, are generally kept with the minutes of the respondent commission’s meetings, which are maintained by the respondent chief’s secretary. The complainants argue that because the respondent chief’s secretary is often not available and that all requests must first go through the dispatch office of the department, the records are not readily accessible and should be kept in the town hall. The complainants also claim that the respondent chief never indicated to complainant Smolicz that requests were unclear, nor did he request clarification of those requests.

25. It is found that while complainant Smolicz’s requests contain a few typographical errors and the records requested may be voluminous, the requests are neither unclear nor overly broad.

26. It is also found that until the hearing on this matter, the respondent chief never, in writing or otherwise, informed the complainant directly or indirectly that he believed complainant Smolicz’s October 12, 2001 request was unclear and overly broad.

27. It is further found that the testimony to the effect that the respondent chief directed the deputy chief to request clarification from complainant Smolicz and that the deputy chief made such a request to the union chairman, and not directly to complainant Smolicz, is not credible.

28. It is also found that while the respondents’ counsel informed this commission that there is no list responsive to the complainant Smolicz’s request, such representation does not sufficiently establish that there are no records from which the complainant can ascertain the information he seeks, nor does it alleviate the respondent chief’s obligation to respond to the request.

29. With respect to the respondents’ contention that disclosure of some of the requested records would clearly constitute an invasion of the personal privacy of the officers, it is found that the respondents provided no evidence to prove such contention.

30. The respondents have also argued that the Supreme Court in Rocque v. Freedom of Information Commission, 225 Conn.651 (2001), held that the “Perkins [Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993)] test established by the court requires a fact-intensive, individual analysis on a case by case basis.” They further argued that because the complainant’s October 12, 2001 request was so overly broad and vague, the respondents were not able to conduct “the necessary fact-intensive, individual analysis on an employee-by-employee basis of all officers disciplined.” The respondents therefore contend that they could not even begin to respond to the request until it is narrowed sufficiently to allow the appropriate fact-intensive investigation.

31. It is found that there is no such holding, explicitly or implicitly, in Rocque, as claimed by the respondents and there is no requirement in the FOI Act that a request for records must be narrowly tailored so that a public agency can conduct a “fact intensive, individual analysis on an employee by employee basis.”

32. It is therefore concluded that the respondent chief violated §1-210(a) and §1-212(a), G.S., by failing to comply with the complainant’s request described in paragraph 2d, above.

33. It is found that the Naugatuck Police Department is the “regular office or place of business” of the respondents, and therefore the respondents’ “public records,” which include those requested by complainant Smolicz in his October 21, 2001, request, must be kept and maintained at that location and must be available there for inspection during regular office or business hours, and not at the town clerk’s office.

34. It is therefore concluded that the respondents did not violate the FOI Act by keeping such records in the office of the chief’s secretary. However, to the extent that such documents cannot be accessed “promptly” within the meaning of §1-210(a), G.S., then such inaccessibility violates the FOI Act.

35. With respect to the complainants’ allegations described in paragraph 2e and 2g, above, it is found that the respondent commission makes and maintains audiotape recordings of its meetings.

36. It is found that the complainants are entitled to listen to, and receive a copy of the requested audiotapes during “regular office or business hours” within the meaning of §1-210(a), G.S.

37. It is found that the respondents informed complainant Smolicz on or about October 15, 2001, that he could obtain a copy of the requested audiotapes at a cost of time and a half of the hourly wage rate of Lieutenant Bozinski, the officer who would make the copies, but did not address the complainant’s request for access to simply listen to the tapes. Such rate would be an overtime rate ranging from $36 and $41 dollars per hour and resulted from Lieutenant Bozinski being required by the department to make such copies after the regular hours of his scheduled shift.

38. Section 1-212(b), G.S., provides in relevant part that “[i]n determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only:

(1) An amount equal to the hourly salary attributed to all agency employees engaged in providing the requested computer-stored public record, including their time performing the formatting or programming functions necessary to provide the copy as requested, but not including search or retrieval costs except as provided in subdivision (4) of this subsection . . .

and

(3) The actual cost of the storage devices or media provided to the person making the request in complying with such request . . .

39. It is found the respondent chief and his designees have regular duties and obligations that must be fulfilled as part of the day-to-day operations of the department and since complying with FOI requests is a statutory requirement, such compliance must be considered part of those obligations. Therefore, it is not clear why Lieutenant Bozinski himself had to fulfill the complainant’s request for copies of the audiotapes or why it was required to be performed after his regular shift, but if it was necessary for him to stay past his regular shift.

40. Furthermore, it is found that §1-212(b)(1), G.S., clearly provides that in determining the costs for a copy, the hourly salary may be included only in the case of a computer-stored public record, which the audiotape recordings are not.

41. It is also found that in determining the cost for a copy of the audiotape recordings, the respondents are permitted to include only the actual cost of the storage devices or media used to comply with the complainant’s request, which would be the cost to the department for the 90-minute tapes used to duplicate the audiotapes.

42. With respect to the respondents’ failure to address complainant Smolicz’s request for access to listen to the audiotape recordings, it is found the complainants were given the impression that the respondent chief was denying them access to simply listen to the audiotapes, even though at the hearing on this matter the respondents claimed that the request had not been denied.

43. It is found, however, that under the facts and circumstances of this case, the respondents denied the complainants’ request for access to listen to the audiotape recordings and further attempted to deter the complainants from gaining access to a copy of the audiotape recordings by charging the rate of time and a half of Lieutenant Bozinski’s hourly salary for said copy. See the record in Docket #FIC 2001-384 Rick Smolicz and Connecticut Independent Police Union Local #2 v. Chief, Police Department, Town of Naugatuck; and Police Commission, Town of Naugatuck.

44. It is therefore concluded that the respondents violated the provisions of §1-210(a) and§1-212(a) and (b), G.S., with respect to the complainants’ requests described in paragraph 2e and 2g, above.

45. With respect to the complainants’ allegation described in paragraph 2f, above, the complainants argued that the respondent commission’s agenda did not fairly apprise the public that it would hold a discussion regarding promotions and that because the meeting was a special meeting the respondent commission was not permitted to add an item to the agenda to hold such discussion.

46. Section 1-225, G.S., provides in relevant part that:

Notice of each special meeting of every public agency. . . shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state . . . The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.

47. It is found that the respondent commission held a special meeting on September 25, 2001 (hereinafter “the September meeting”).

48. It is found that the notice of the September meeting included the agenda for the meeting.

49. It is found that the agenda for the respondent commission’s September meeting provided at item #10 “Reports from subcommittees.”

50. It is found that when the respondent commission reached item #10 on its agenda, the chairman for the subcommittee on hiring provided an oral report to the respondent commission which included answering questions pertaining to the status of the testing process for the sergeant promotional exam, certain objections from the police union regarding the respondent commission’s involvement in the promotional process, and the borough attorney’s opinion regarding the status of the respondent commission members as negotiators in relation to promotional examinations and union negotiations.

51. It is found that in the context of a report regarding hiring, the discussion, described in paragraph 45, above, can be reasonably expected, and there is no evidence in the record to establish that the issues discussed during the report were outside of the scope of the subcommittee’s mandate.

52. It is found therefore that the respondent commission’s agenda fairly apprised the public of the business to be transacted at its September 25, 2001 meeting and it is concluded that the respondent commission did not violate the FOI Act as alleged by the complainant.

53. With respect to the complainants’ allegation described in paragraph 2h, above, the complainants argued that the respondent commission’s agenda did not fairly apprise the public that it would actually vote to promote officers to sergeants at that meeting because, in the past, the respondent commission specifically noted on its agenda when there was going to be a vote on promotions.

54. It is found that the respondent commission held a special meeting on October 16, 2001 (hereinafter “the October meeting”).

55. It is found that the agenda for the respondent commission’s October meeting provided at item #6 “Discussion/possible action of evaluations from the sergeant’s exam.”

56. It is found that when the respondent commission reached item #6 on its agenda, it discussed a number of issues and voted to promote an officer to sergeant.

57. It is found that the phrase “possible action” is an indication that the respondent commission may take a vote and in the context of the October meeting, such vote could include one pertaining to promotions.

58. It is found therefore that the respondent commission’s agenda fairly apprised the public of the business to be transacted at its October 16, 2001 meeting and it is concluded that the respondent commission did not violate the FOI Act as alleged by the complainant.

59. With respect to the allegations described in paragraph 2i and 2j, above, it is found that the complainants have not alleged a violation of the FOI Act.

60. The complainants’ requested remedies are denied.

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

1. Forthwith the respondents shall provide the complainants with a copy of the audiotape recordings of the respondent commission’s June, July, August, September, and October 2001 meetings, free of charge.

2. Forthwith the respondents shall search for, retrieve and provide the complainants with a copy of any and all documents that reflect an active policy, procedure, rule or regulation of the department, including those that are in the department’s policy and procedure and rules and regulations manuals, and those issued through memoranda, bulletins, or through any other method designated by the department, free of charge.

3. Forthwith the respondents shall provide the complainants with access to inspect, during the department’s regular office or business hours, all records responsive to the complainant Smolicz’s request described in paragraph 2d of the findings, above, or records from which the complainants may ascertain the information requested. Further, the respondents shall forthwith provide the complainant with a copy of any such inspected records that the complainants may require free of charge.

4. The Commission notes that while the complainants have raised some legitimate FOI issues, the parties in this matter have appeared before this Commission at least five times in only 13 months and that it appears that the Naugatuck Police Department is suffering from some serious personnel issues. However, this Commission is not the venue to resolve such issues. Further, the Commission admonishes the respondents for being derelict in obtaining counsel in a timely manner for the hearing scheduled for December 19, 2001, which unduly delayed the hearing process.

5. The Commission also admonishes the respondents’ counsel who unduly delayed and frustrated the hearing process by badgering the complainants’ sole witness during cross-examination, by unnecessarily combative posturing and by mischaracterizing the provisions of the FOI Act. The respondents’ counsel demonstrated a lack of respect for this process by obfuscating at the December 19, 2001 hearing in order to force the hearing officer to grant his motion for a continuance which motion she had originally denied. Further, the respondents’ counsel’s behavior at the continued hearing of January 3, 2002 showed he was either disingenuous or still unprepared, which, in either case, demonstrates further his lack of respect for this process, because he had been given time to prepare. The Commission will not countenance such a lack of professionalism by the respondent’s counsel in the future.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 23, 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:

James Cegielski, John Hutt and

Connecticut Independent Police Union Local #2,

c/o Rick Smolicz

33 Wilkenda Avenue

Waterbury, CT 06708

Rick Smolicz

c/o E. Stephen Briggs, Esq.

2 Hickory Hill Way

West Granby, CT 06090-1503

Chief, Police Department, Borough

of Naugatuck; and Police Commission,

Borough of Naugatuck

c/o William J. Ward, Esq.

Ouellette, Deganis, Gallagher & Ward, LLC

143 Main Street

Cheshire, CT 06410

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-496/FD/paj/10/23/2002