FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 29, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.[1]  Prior to the lengthy hearing being adjourned the hearing officer indicated that such hearing would be continued to a future date for the taking of additional evidence.  However, after review of the record in this case, the hearing officer determined that additional evidence was not necessary for the determination of the sole issue raised in this appeal, namely, whether the respondent complied with the Commission’s order in contested case docket# FIC 2003-061 Anthony J. Sinchak v. Chief, Police Department, City of Waterbury (hereinafter “FIC 2003-061”).

 

            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.  By letter of complaint dated June 15, 2005 and filed on June 20, 2005, the complainant appealed to the Commission alleging that the respondent failed to fully comply with the Commission’s order in FIC 2003-061.

 

3.  The Commission’s order in FIC 2003-061 was issued on February 4, 2004 and indicated the following:

 

1.    The respondent shall forthwith provide the complainant with a copy of the records described in paragraph 24, of the findings, above.

 

2.  The respondent shall forthwith conduct a diligent search of the records to determine whether or not there are other records within the context of this decision which should be provided, and to provide copies of such records, and to provide to the complainant a list of any records which it claims are exempt, and to provide the basis of such claimed exemption on such records.” 

                                                                                                                                                           

4.  The only issue presently before the Commission is whether the respondent complied with the Commission’s order described in paragraph 3, above.

 

5.  With respect to order number 1, described in paragraph 3, above, the respondent conceded at the hearing in this matter, and it is found, that the respondent did not provide the complainant with a copy of the records as described in paragraph 24 of the findings in FIC 2003-061.  Specifically, the respondent did not provide the complainant with the following pages of the in camera records described in paragraph 24 of the findings in FIC 2003-061: pages 38, 99, 239, 241, 245, 247, 260, 266, 268, 273, 289, 291 and 292.  It is also found that the following pages were provided to the complainant but were redacted beyond the Commission’s order: pages 6, 7, 25, 30, 51, 52, 254, 259, 264, 282, 286, 298 and 301.

 

6.  It is therefore concluded that, with respect to the Commission’s order number 1 in FIC 2003-061, the respondent failed to comply with such order.  At the hearing in this matter, counsel for the respondent represented that he turned over the pages described in paragraph 5, above, to the Department of Correction (“DOC”) on the day of the hearing in this matter.  The DOC confirmed at the hearing in this matter that it received such pages.

 

7.  However, it is found that the records described in paragraph 5, above, were ordered to be disclosed to the complainant, after the Commission conducted the hearing in FIC 2003-061, after painstakingly reviewing such records in camera, and after addressing all claims of exemption raised by the respondent, including the exemption set forth in §1-210(b)(18), G.S.[2] In FIC 2003-061, the Commission concluded, with respect to such records that: “the respondent and the DOC failed to prove that the DOC commissioner has reasonable grounds to believe that disclosure of the records described in paragraph 24…may result in a safety risk within the meaning of §1-210(b)(18), G.S.  See FIC 2003-061, finding 26.  Consequently, the issue of whether the records, ordered disclosed in FIC 2003-061, order number 1, are exempt from disclosure was already put to rest.  Therefore, the pages ordered disclosed pursuant to order number 1 should not have been provided to the DOC for a further determination of whether they are exempt from disclosure. 

 

8.  With respect to order number 2, described in paragraph 3, above, such order can be broken down into three parts.

 

9.  First, order number 2 required that the respondent conduct a diligent search to determine if there are other records within the context of FIC 2003-061, which exist, and which are responsive to the complainant’s records request at issue in FIC 2003-061.

 

10.  With respect to this first part of order number 2, it is found that within approximately one month of receiving the Commission’s order in FIC 2003-061, the respondent conducted a search and located 114 pages of records.[3]  It is found however, that such search was not “diligent” and that many, many more records exist in the respondent’s files.[4]  It is found that the existence of these “many” additional records was never brought to the attention of the Commission during the hearing in FIC 2003-061 although the respondent was aware of their existence at the time of such hearing.  It is found that the existence of these records should have been brought to the Commission’s attention, and then, if counsel sincerely believed that the “research” claim had merit, then he should have presented such claim to the Commission on behalf of his client, and given the Commission, which is the legislatively authorized body charged with making the determination of whether records are disclosable or not, an opportunity to address whether “research” was involved in complying with the records request at issue.  In light of the foregoing, it is concluded that the respondent failed to comply with the first part of order number 2. 

 

11.  Second, order number 2 required that the respondent provide copies of any records found as a result of the respondent’s diligent search.  It has already been found that the respondent did not conduct a diligent search.  However, it is also found that the respondent provided the complainant with 232 pages of records.[5]  It is concluded that in light of the fact that the respondent did not conduct a diligent search, the respondent did not fully comply with this portion of order number 2.

 

12.  Third, order number 2 required that the respondent provide the complainant with a list of any records found (as a result of his diligent search), for which the respondent claims an exemption, along with the basis for such claimed exemption.  It is found that besides the 114 pages of records described herein, the respondent has not provided the complainant with a list of records located, for which the respondent is claiming an exemption, and the basis for any such claim of exemption.  With respect to the 114 pages of records located by the respondent, and described in finding 10, above, it is found that the respondent indicated in a March 1, 2004 letter addressed to the Commission that he provided the complainant with a list of such records, and the basis of exemptions being claimed by the respondent with respect to such records.[6]  It is concluded that the respondent did not fully comply with this portion of order number 2.

 

13.  The record in this case reflects that the respondent has already had two opportunities to: a) in good faith diligently search his records, b) be candid and truthful in informing the Commission of the extent of all records that he has that are responsive to the records request at issue in FIC 2003-061, and c) claim exemptions which may apply.   First, during the Commission’s hearing in FIC 2003-061, the respondent and his counsel led the hearing officer and the Commission to believe that all records that were responsive to the complainant’s request at issue were being submitted to the Commission by the respondent for an in camera inspection with respect to claims of exemption being made by the respondent.  This was not the case.  Counsel for the respondent, only upon being challenged by the complainant at the FOI Commission’s meeting at which the Hearing Officer’s Report in 2003-061 was being considered by the Commission, disclosed for the first time that more records existed than were provided to the hearing officer for in camera inspection.  Upon hearing this disclosure, the Commission leniently fashioned order number 2 in FIC 2003-061 so that the respondent could have a second opportunity to thoroughly search his records, and “provide to the complainant a list of any records which it claims are exempt, and to provide the basis of such claimed exemption on such records”, which the respondent has again failed to do.  The respondent  has failed to conduct a thorough and diligent search of his records in this case, and should not now be permitted, after some two years since the Commission issued its order in 2003-061, yet another opportunity to now go and do what he should have long done. 

 

14.  Indeed, it is found that many of the records at issue herein and in FIC 2003-061, were a part of the complainant’s murder and kidnapping trial, to which the complainant and his counsel had access during the course of such trial.  See State of Connecticut v. Sinchak, 18 Conn. L. Rptr. 65 (1996).  However, the Commission, on its own initiative, upon carefully reviewing that court’s decision is also mindful of, and guided by, such decision with respect to a motion to unseal certain records concerning his murder and kidnapping trial, filed by the complainant.  It is found that in State of Connecticut v. Sinchak, 18 Conn. L. Rptr. 65 (1996) the court unsealed the following records: “(1) defendant's exhibits 22A through 22I for identification (search and arrest warrants); (2) court exhibit XII (witness statements and police reports); and (3) court exhibit XIV (supplemental reports)”, however, the court did not unseal “defendant's exhibit 51 for identification, which comprises the entire investigatory file of the Waterbury Police Department concerning” the complainant’s prosecution (hereinafter “exhibit 51”).  Id.    

 

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

 

1. The respondent shall forthwith, comply with the Commission’s order number 1 in FIC 2003-061.

 

2.  The respondent shall forthwith, provide the complainant with a copy of all records responsive to his request, which have resulted from the respondent’s diligent search of his records, including, “(1) defendant's exhibits 22A through 22I for identification (search and arrest warrants); (2) court exhibit XII (witness statements and police reports); and (3) court exhibit XIV (supplemental reports)”, as described in State of Connecticut v. Sinchak, 18 Conn. L. Rptr. 65 (1996), and referenced in paragraph 14 of the findings, above.   However, in keeping with such court’s decision, and the principle of comity, the respondent may withhold any records that constitute “exhibit 51”, as described in State of Connecticut v. Sinchak,18 Conn. L. Rptr. 65 (1996), which was not unsealed by such court.

 

 Approved by Order of the Freedom of Information Commission at its regular meeting of June 14, 2006.

 

________________________________

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:

 

Anthony Sinchak, #64249

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

 

Chief, Police Department,

City of Waterbury

c/o Charles E. Oman III, Esq.

Office of the Corporation Counsel

236 Grand Street

Waterbury, CT 06702

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-293FD/paj/6/15/2006