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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Complainants |
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against |
Docket #FIC 2001-147 | |
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Chief, Police Department, City of New Haven, |
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Respondent |
February 13, 2002 | |
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The above-captioned matter was heard as a contested
case on April 16, 2001, at which time the complainants and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. Docket
# FIC 2001-131, Jeffrey Mitchell v. Chief, Police Department, City of New Haven, was
consolidated with the above-captioned matter for purposes of
hearing. At
the hearing, Hearing Officer Barbara E. Housen granted the office of the State’s
Attorney for the Judicial District of New Haven intervenor status.
Hearing Officer Housen issued a Report of Hearing Officer dated August
28, 2001, which report was considered at a meeting of the Commission on
October 10, 2001. At the October
10, 2001 meeting, this matter was remanded to a member of the Commission to
conduct an in camera review of the records at issue as a new
hearing officer and report back to the Commission.
Thereafter, Commissioner Dennis E. O’Connor, as hearing officer,
conducted an in camera review of the records at issue.
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 March 2, 2001, the complainants requested that the respondent provide
them with access to inspect the police documents relating to the December 4,
1998 homicide of Yale University student Suzanne Jovin (hereinafter “requested
records”).
3. It is found that by letter dated March 7, 2001 the respondent denied the request, claiming that there is an ongoing murder investigation, that the case is “open” and that release of the requested records would be prejudicial to future law enforcement action and “could compromise the safety of individuals who have provided information to the police.”
4. Having failed
to receive access to the requested records, the complainants, by letter dated
March 13, 2001 and filed on March 14, 2001, appealed to the Commission
alleging that the respondent violated the Freedom of Information (hereinafter
“FOI”) Act by denying them access to the requested records.
5. 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. [Emphasis added.]
6. It is found that the requested records are maintained or kept on file by the respondent, and such records are “public records” within the meaning of §1-210(a), G.S.
7. The respondent contends that
the requested records are exempt from disclosure pursuant to
§§1-210(b)(3)(A) and 1-210(b)(3)(C), G.S., which 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action….
8. The requested records were submitted to the Commission by the respondent and an in camera review was conducted. The in camera records have been marked for identification purposes as IC-I, pages 2001-131/147-1 through 1099; IC-II, pages 2001-131/147-1 through 675; IC-III, pages 2001-131/147-1 through 2702; IC-IV, pages 2001-131/147-1 through 494; IC-V, “911” audio tape recording; and IC-VI, pages 2001-131/147-1 and 2.
9. The index and the in camera records submitted to the Commission pursuant to §1-21j-37(f)(2) of the Regulations of Connecticut State Agencies indicate that the respondent does not claim an exemption with respect to IC-IV, pages 2001-131/147-1 through 494, which consist of newspaper and internet articles. Consequently, IC-IV, pages 2001-131/147-1 through 494, should have been disclosed to the complainants, and therefore, the respondent violated §1-210(a), G.S., by failing to disclose such records to the complainants, promptly.
10. In addition, IC-VI, pages 2001-131/147-1 and 2, consist of a May 10, 2001 memorandum, that did not exist at the time of the complainants’ request and is outside the scope such request. Therefore, disclosure of such record is not addressed herein.
11. Upon careful review of the remaining in camera records, it is found that with the exception of certain records contained in IC-III (which consist of additional published articles), such records constitute records of a law enforcement agency, which records were compiled in connection with the detection or investigation of a crime, within the meaning of §1-210(b)(3), G.S.
12. It is further found that some of the records, or portions thereof, contained in IC-I, pages 2001-131/147-1 through 1099; IC-II, pages 2001-131/147-1 through 675; and IC-III, pages 2001-131/147-1 through 2702 contain information “not otherwise available to the public” and the disclosure of which would not be in the public interest because it would, directly or indirectly, result in the disclosure of 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 identities were made known, within the meaning of §1-210(b)(3)(A), G.S.
13. It is therefore concluded that the information described in paragraph 12, above, that would identify informants not otherwise known, or witnesses not otherwise known, is permissibly exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., and the respondent did not violate the FOI Act by failing to disclose such information contained in the requested records to the complainants.
14. With respect to IC-V, the “911” audio tape recording, it is found that portions of such record includes information that does not relate to the homicide of Yale University student Suzanne Jovin and is outside the scope of the complainants’ request. Therefore, disclosure of such portions of the “911” audio tape recording is not addressed herein.
15. It is also found that the remaining portions of IC-V do not contain any information that would, directly or indirectly, identify informants not otherwise known or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known, within the meaning of §1-210(b)(3)(A), G.S.; thus the remaining portions of IC-V do not contain information the disclosure of which would not be in the public interest. It is therefore concluded that IC-V is not permissibly exempt pursuant to §1-210(b)(3)(A), G.S.
16. With respect to the respondent’s claim that the remaining requested records are exempt from disclosure pursuant to §1-210(b)(3)(C), G.S., it is found that much of the information contained in such records, excluding the information described in paragraphs 12 and 13, above, has already entered the public domain, as evidenced by the numerous newspaper and internet articles contained in the in camera records that were not claimed to be exempt by the respondent, as described in paragraph 9, above, and the additional published articles contained in IC-III, as described in paragraph 11, above. Therefore, it is found that the respondent failed to prove that such information contained in the remaining requested records is “not otherwise available to the public,” within the meaning of §1-210(b)(3), G.S.
17. It is further found with respect to all of the remaining requested records, that the respondent offered little explanation as to how disclosure of the information contained in such records would not be in the public interest. The respondent further failed to demonstrate how disclosure of such information would be prejudicial to any prospective law enforcement action, within the meaning of §1-210(b)(3)(C), G.S. The respondent simply claimed, without any supporting evidence or specific circumstances, that: the investigation was “ongoing; ” any release of the records at issue could possibly prejudice a jury and “the prosecution of the possible suspect in the case; ” and would also “create a depiction of the facts and circumstances to the public that may not be true.” The respondent also made reference to certain hypothetical situations under which disclosure of certain kinds of information would be prejudicial to a prospective law enforcement action, but failed to explain why disclosure of any of the records at issue would be prejudicial in this case.
18. It is further found that the respondent made no effort to catalogue the requested records or to identify with any precision the reason why any of the records were exempt from disclosure pursuant to §1-210(b)(3)(C), G.S. Rather, the respondent simply produced the several thousands of pages of records at issue and made a blanket claim of exemption with respect thereto.
19. It is further found that the testimony of the respondent’s sole witness with respect to whether the requested records had been disclosed to certain third parties by the respondent is not accurate. In camera document IC-III, pages 2001-131/147-2501 and 2502, clearly contradicts such testimony. Consequently, the Commission finds the testimony of such witness not credible and the claim that disclosure of the remaining records at issue would be prejudicial to a prospective law enforcement action implausible.
20. It is therefore found based upon the findings in paragraphs 17 through 19, above, that the respondent failed to prove that disclosure of the remaining requested records, would not be in the public interest because it would result in the disclosure of information to be used in a prospective law enforcement action and would be prejudicial to such action, within the meaning of §1-210(b)(3)(C), G.S.
21. Consequently, it is concluded
that the respondent violated the provisions of §1-210(a), G.S., by failing to
disclose to the complainants IC-I, pages 2001-131/147-1 through
1099, IC-II, pages 2001-131/147-1 through 675, and IC-III, pages
2001-131/147-1 through 2702, with the exception of those portions concluded to
be exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., as described in
paragraphs 12 and 13, above, and by failing to disclose IC-V, the “911”
audio tape recording, with the exception of those portions found not within
the scope of the complaint.
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 complainants with
access to inspect those portions of IC-I, pages 2001-131/147-1 through
1099, IC-II, pages 2001-131/147-1 through 675 and IC-III, pages
2001-131/147-1 through 2702 concluded not to be exempt from disclosure and
then to provide the complainants with a copy of such records, if they so
desire. In complying with this
portion of the order, the respondent may redact any information contained in
the requested records that would reveal, either directly or indirectly, the
identity of informants not otherwise known, or witnesses not otherwise known
whose safety would be endangered or who would be subject to threat or
intimidation if their identities were made known, within the meaning of
§1-210(b)(3)(A), G.S., as described in paragraphs 12 and 13 of the findings,
above, and any signed statements of witnesses, within the meaning of
§1-210(b)(3)(B), G.S.
2. Forthwith, the respondent shall provide the complainant with
access to listen to IC-V, the “911” audio tape recording, excluding
those portions that does not relate to the homicide of Yale University student Suzanne Jovin, and then to provide the
complainants with a copy of such record, if they so desire.
3. Forthwith, the respondent
shall provide the complainants with access to inspect IC-IV,
pages 2001-131/147-1 through 494, and then to provide the complainants with a
copy of such records, if they so desire.
4. The Commission is mindful that
in responding to FOI requests, the respondent has the difficult job of
balancing the public’s right to know against the need to maintain the
integrity of his department’s investigations.
However, the Commission wishes to express its displeasure with the
respondent’s decision in this case to claim a blanket exemption to
disclosure and then simply unload the thousands of pages of in camera
records on the Commission for it to review and determine which, if any, are
exempt. In the future, the
Commission expects that the respondent will comply strictly with the
provisions of §1-21j-37(f) of the Regulations of Connecticut State Agencies
by, among other things, prior to submitting any records in camera,
thoroughly reviewing the records, and specifying the exemptions claimed and
providing requisite proof. The
respondent’s failure to proceed in such a manner in this case resulted in
undue delay and an unnecessary expenditure of state time and resources. Such
conduct on the part of the respondent in any future proceedings before the
Commission will not be tolerated.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 2002.
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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:
c/o Donna Chance Dowdie, Esq.
Assistant Corporation Counsel and
Martin S. Echter, Esq.
Deputy Corporation Counsel
165 Church Street, 4th floor
New Haven, CT 06510
Office of the State's Attorney for the
Judicial District of New Haven
c/o James G. Clark, Esq.
Senior Assistant State's Attorney
234 Church Street, Suite 402
New Haven, CT 06510
Ellen Jovin
c/o David N. Rosen, Esq.
400 Orange Street
New Haven, CT 06511
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-147/FD/paj/2/14/2002