The above-captioned matter was heard as a contested case on May 10, 2001, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Pursuant to §1-206(b)(1), G.S., the hearing officer granted party status to sergeant William T. Perry (“Perry”), a Southington Police Department employee, whose records are at issue.  Counsel for Perry appeared at the hearing.  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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

            2.  It is found that by letter dated February 26, 2001, the complainants requested that the respondents provide them with a copy of “the report on Sgt. William T. Perry that was prepared by the state police at the request of the Southington Police Commission” (hereinafter “report” or “requested records”). 

 

3.  It is found that by letter dated February 27, 2001, the respondents notified the complainants that the report “has been turned over to the Southington Police Commission” and that “you may therefore wish to redirect your request to” the Southington Police Commission.

 

 4.  It is found that following a March 7, 2001 telephone conversation with the complainants, the respondents by letter dated March 8, 2001 informed the complainants that it was the understanding of the respondent department that the complainants’ records request was being made to the respondent department.

 

5.  It is found that by letter dated March 8, 2001, the respondents notified Perry, pursuant to §1-214(b), G.S., that a request had been made for records concerning him, and provided Perry with an opportunity to object to the disclosure of such records, following which Perry filed a written objection, dated March 13, 2001, with the respondent department on March 15, 2001.

 

 6.  It is found that the respondents then, by letter dated March 15, 2001, informed the complainants of Perry’s objection and that the requested records would not be released unless so ordered by the Freedom of Information (“FOI”) Commission, and indicating further that the requested records are exempt from disclosure pursuant to §§1-210(b)(2), 1-210(b)(3)(C), 1-217(a)(2) and 17a-28, G.S.

 

7. The complainants then filed this appeal with the Commission on March 29, 2001 alleging that the respondents violated the FOI Act by denying them a copy of the requested records.

 

8.  Section 1-214(b), G.S., in relevant part, provides:

 

Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned… and (2) the collective bargaining representative, if any, of each employee concerned.  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.

 

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

 

any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

            10.  Section 1-210(a), G.S., in relevant part, further provides,:

 

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.

 

11.  It is found that the respondents maintain records that are responsive to the complainants’ request as described in paragraph 2, above.

 

12.  It is concluded that the records maintained by the respondents and described in paragraph 11, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

13.  Following the hearing in this matter, the respondents submitted the records at issue to the Commission for an in camera inspection, (hereinafter “in camera records” or “report”).  The index accompanying the in camera records, indicate that the respondents are claiming that all of the in camera records are exempt from disclosure pursuant to §§1-210(b)(2), 1-210(b)(3)(C), and 17a-28, and that portions of the in camera records are also exempt pursuant to §1-217(a)(2), G.S, and 17 U.S.C. §101 et seq.

 

14.  For identification purposes, the in camera records comprise 110 pages and have been designated IC# 2001-180-1 through 2001-180-110, inclusive.

 

            15.  It is found that the in camera records were compiled by the respondent department in connection with an Internal Affairs (IA) investigation into Perry’s conduct.  The respondent department conducted the IA investigation between November 2000 and January 2001, following which a report containing findings, conclusions and recommendations was issued.  It is the disclosure of the respondent department’s report that is at issue in this complaint.  The town of Southington Board of Police Commissioners requested that the respondent department conduct the IA investigation since Perry is the son of Southington Police Chief William B. Perry (“Police Chief Perry”).  The focus of the respondent department’s investigation was whether Perry violated any Southington police department rules, regulations and policies in light of Perry’s wife’s October 2000 arrest on drug/marijuana charges. 

 

            16.  It is found that while the report is about Perry a few portions contain information about Perry’s wife, her family and medical history, Perry’s children, and the Perry home.  The report also contains statements of Department of Children and Families (“DCF”) caseworkers, state police major crime squad officers, Police Chief Perry, Southington school personnel and Perry.  The report further contains photographs of the Perry home, and the Internet version of certain Hartford Courant newspaper articles. 

 

17.  With respect to the claim of exemption pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel or medical files and similar files” the disclosure of which would constitute an invasion of personal privacy.”

 

18.  The Commission takes administrative notice of the final decision in contested case docket #FIC 2001-251, Fred Radford v. Chief, Police Department, Town of Trumbull (January 2002), with respect to the discussion of §1-210(b)(2), G.S., and Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993).

 

19.  The Supreme Court set forth the test for the §1-210(b)(2), G.S., claim of invasion of privacy in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). 

 

20.  Specifically, under the Perkins test, the claimant must first establish that the files in question are personnel, medical or similar files.  Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy.  In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and such information is highly offensive to a reasonable person.

 

            21.  It is found that the in camera records constitute “personnel or medical files and similar files” within the meaning of §1-210(b)(2), G.S.

 

            22.  It is found that with the exception of the following specific portions of the in camera records, the remaining portions pertain to legitimate matters of public concern because the information contained therein concerns and implicates the conduct of a police officer, and also discloses the process by which the respondent department conducted the IA investigation:

 

IC# 2001-180-18, delete lines 1 and 2; IC# 2001-180-20 and IC# 2001-180-21, delete from “Hope” in second to last line on page 20 through the words “continued counseling” in first full paragraph on page 21; IC# 2001-180-21, delete last sentence of third full paragraph through the word “mother”; IC# 2001-180-22, delete names of children in paragraph 6; IC# 2001-180-23 paragraph 3, delete all after “diagnosed with” through end of paragraph; IC# 2001-180-25, delete first line of last paragraph through word “death” and delete last sentence of last paragraph as follows: delete from word “someone” through word “drugs”; IC# 2001-180-79, photo 29 only; IC# 2001-180- 93 delete page.

 

23.  It is also found that with the exception of the specific portions of the in camera records described in paragraph 22 above, disclosure of the remaining portions, though potentially embarrassing, is not “highly offensive” to a reasonable person. 

 

24.  It is therefore concluded that with the exception of the specific portions of the in camera records described in paragraph 22 above, disclosure of the remaining in camera records would not constitute an invasion of privacy, and therefore such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

            25.  With respect to the respondents’ claim of exemption pursuant to §1-210(b)(3)(C), 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action….

 

            26.  It is found that the IA investigation into Perry’s conduct was not a criminal investigation of Perry but an administrative investigation to determine whether police department rules were violated as more fully described in paragraph 15, above.  It is therefore found that the in camera records were not “compiled in connection with the detection or investigation of crime” within the meaning of §1-210(b)(3)(C), G.S.  It is also found that no criminal charges were brought against Perry. 

 

27.  It is found that the respondents failed to prove that disclosure of the in camera 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 disclosure would be prejudicial to such action, within the meaning of §1-210(b)(3)(C), G.S.

 

28.  It is therefore concluded that the in camera records are not exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.

 

            29.  With respect to the respondents’ claim of exemption pursuant to §1-217(a)(2), G.S., such provision provides, in relevant part: “[n]o public agency may disclose, under the Freedom of Information Act, the residential address of …a sworn member of a municipal police department or a sworn member of the Division of State Police within the Department of Public Safety”.

 

            30.   It is found that Perry’s residential address is contained in the in camera records.

 

            31.  It is concluded that pursuant §1-217(a)(2), G.S., the respondents may withhold Perry’s residential address from disclosure.

32. With respect to the respondents’ claim of exemption pursuant to §17a-28, G.S., §17a-28(b), G.S., provides, in relevant part:

Notwithstanding the provisions of [the Freedom of Information Act], records maintained by the department [of Children and Families] shall be confidential and shall not be disclosed.  Neither the commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual, agency, corporation or organization without the consent of the person, his attorney or his authorized representative, except as provided in subsections (c) and (d) of this section. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.

33.  In addition, the Commission is aware that §17a-101k, G.S., provides in relevant part that:

any … information relative to child abuse, wherever located, shall be confidential subject to such regulations governing their use and access as shall conform to the requirements of federal law or regulations.  Any violation of this section or the regulations adopted by the commissioner [of DCF] under this section shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year.  [Emphasis added.]

34.  It is found that the following portions of the in camera records disclose details about DCF employee and a “mandated reporter”contacts relative to child abuse and are therefore exempt from mandatory disclosure pursuant to §§17a-28 and 17a-101k, G.S.:

 

IC# 2001-180-6, delete lines 10 through 14 up to and including the word “referral”; IC# 2001-180-14, delete all after first sentence of paragraph 3 i.e. delete all after “6 years”; IC# 2001-180-15, delete all of first paragraph, and delete all after first sentence of paragraph 3 i.e. delete all after “7 ½ years”; IC# 2001-180-21, delete name and title of school official/ DCF mandated reporter and delete all of last paragraph; delete all references to the name and title of the school official/ DCF mandated reporter contained throughout the entire in camera records; IC# 2001-180-22, delete paragraphs 1 and 2 on page 22 through the word “required”; IC# 2001-180-24 delete fourth and fifth paragraphs through word “allegations” and delete first sentence of last paragraph through word “system”.

35.  With respect to the respondents’ claim that IC# 2001-180-57 through IC# 2001-180-66, are exempt pursuant to17 U.S.C. §101 et seq. as “federally copyrighted material” it is concluded that the respondent failed to prove that such statute precludes disclosure of IC# 2001-180-57 through IC# 2001-180-66.  Furthermore, IC# 2001-180-57 through IC# 2001-180-66 are the Internet version of newspaper articles, widely available to the general public.

            36.  In sum, it is concluded that the respondents violated §1-210(a), G.S., when they failed to provide the complainant with a copy of the in camera records, excluding those portions described in paragraphs 22, 31 and 34.

37.  It is further concluded that the respondents did not violate §1-210(a), G.S., when they failed to provide the complainants with those portions of the in camera records as described in paragraphs 22, 31 and 34.

 

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 complainant with a copy of the in camera records, excluding those portions as described in paragraphs 22, 31 and 34 of the findings, above.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 13, 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 H. Smith and The Record

Journal Publishing Company

c/o Ralph G. Elliot, Esq.

Tyler Cooper & Alcorn, LLP

CityPlace, 35th Floor

Hartford, CT 06103-3488

 

Commissioner, State of Connecticut,

Department of Public Safety, Division

of State Police; and State of Connecticut,

Department of Public Safety, Division of

State Police

c/o Robert B. Fiske, III, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

William T. Perry

c/o John M. Walsh, Jr., Esq.

Licari & Walsh, LLC

105 Court Street

New Haven, CT 06511

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-180/FD/paj/2/15/2002