FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 25, 2005, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The case caption has been amended as described in paragraph 1, below.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  At the hearing in this matter, the respondent office contended that it was not a public agency, and thus requested that the City of Hartford be added as a respondent.  There being no objection, such request was granted, and the case caption has been amended accordingly.

2.  Section 1-200(1), G.S., defines “public agency” to mean:

“(A) [a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions….”

3.  It is found that the respondent office is a department of the City of Hartford.  Therefore, it is concluded that such office is a public agency within the meaning of §1-200(1)(A), G.S.  See also Londregan v. Freedom of Information Commission, 12 Conn. L. Rptr 144 (1994) (even contractual municipal counsels are public agencies under the FOI Act with respect to their municipal duties).

4.  It is found that, by letter dated June 23, 2005, the complainant requested that the respondent office provide her with copies of the following records:

 

a.  documentation with respect to any and all monies paid directly by the City of Hartford in connection with claims and lawsuits alleging excessive force by Hartford Police Officers between 1998 and June 23, 2005, including the date, amount, payee and police officer involved;

 

b.  documentation with respect to any and all monies paid on behalf of the City of Hartford in connection with claims and lawsuits alleging excessive force by Hartford police officers between 1998 and June 23, 2005, including the name of the entity paying the money, date, amount, payee, and police officer involved;

 

c.  documentation with respect to any and all pending claims against the City of Hartford and /or any of its police officers, whether or not lawsuits have been filed, in which allegations of excessive force have been made against any members of the Hartford Police Department, including the name of officer, name of claimant, date of incident, and court docket number, if applicable, between 1998 and June 23, 2005;

 

d.  documentation with respect to any and all Hartford police officers against whom excessive force claims have been made, whether or not a lawsuit has been filed, in which the City of Hartford has authorized the payment of any settlement, whether paid directly by the city or on its behalf by an insurance company or other entity, or by any person or entity between 1998 and June 23, 2005;

 

e.  names of cases and docket numbers with respect to any and all lawsuits in which the City of Hartford has been found liable for the payment of money, including compensatory damages, punitive damages, costs and/or attorneys fees in connection with excessive force claims made against the City of Harford and/or any Hartford police officers between 1998 and June 23, 2005.

 

 

            5.  Having failed to receive any response from the respondents, by letter dated July 8, 2005, and filed with the Commission on July 12, 2005, the complainant appealed, alleging that the respondent office violated the Freedom of Information [hereinafter “FOI”] Act by denying her copies of the records she requested as described in paragraph 4, above.  

 

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

 

“…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.”

 

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

 

“[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…receive a copy of such records in accordance with section 1-212.” 

 

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

 

9.  It is found that the respondent office keeps on file the records described in paragraph 4, above, and that such records are public records within the meaning of §1-210(a), G.S.

 

10.  It is found that, on October 21, 2005, the respondent office mailed to the Commission and to the complainant an objection to the request described in paragraph 4, above, stating that the complainant seeks by her request to recover documents she has specifically been denied access to, or production of, in a pending United States District Court case, that the complainant is an attorney representing an individual in pending litigation against the City of Hartford, and that, to the best of the respondent’s knowledge, the complainant has sought access to the requested records in discovery in a federal court case and been denied access to such records. 

 

11.  It is found that the complainant made an informal request to outside counsel for the respondent city for two settlement agreements, which such counsel denied by letter dated June 27, 2005, on the basis that such agreements contained confidentiality clauses.  It is further found that the complainant did not seek access to the requested records through discovery.  Moreover, even if complainant had done so, requests for records under the FOI Act are to be determined by reference to provisions of the Act, irrespective of whether they would be disclosable under the rules of discovery.  Chief of Police v. Freedom of Information Commission, 252 Conn. 377, 386 (2000).  Similarly, while it is found that the complainant is representing an individual, Elvin Gonzalez, in litigation with the respondent city, such fact does not deprive the complainant of her rights under the FOI Act.  Accordingly, the objection, described in paragraph 10, above, is without merit. 

 

12.  At the hearing in this matter and on brief, the respondents contended that the request described in paragraph 4, above, is overbroad, vague, that it requires research, which the respondent is not required to perform under the FOI Act, and that the respondents cannot be ordered to provide any records to the complainant in the absence of a clear indication of exactly which records are being requested.   

 

13.  It is found that, after it received the request described in paragraph 4, above, the respondent office did not attempt to contact the complainant to inquire into the scope of such request, but rather merely decided it was overbroad and vague, and did nothing.  See, Perkins v. Freedom of Information Commission, 228 Conn. 158, 167 (1993) (it is unreasonable to deny a member of the public access to the FOI Act simply because of arguable interpretations in the form in which a request for information is couched).

 

14.  At the hearing in this matter, the complainant testified and/or represented that she was not seeking settlement agreements, personnel files, internal affairs files, attorney work product records, attorney-client privileged materials, or any records which would reveal any substantive legal, internal, or personnel-related opinions, recommendations, or strategies.  Rather, it is found that what the complainant seeks by her request described in paragraph 4, above, are copies of the following, which shall be hereinafter referenced as “the requested records.” 

 

a.  records indicating financial payouts made by or, on behalf of, the respondent city in connection with lawsuits or claims related to allegations of police officer excessive force, including any related punitive damages, compensatory damages and attorneys fees; such records should include the name of the entity paying the money, date, amount, payee, and police officer involved, between 1998 and June 23, 2005; and

 

b.  claim letters, or complaints filed with the superior court, which would identify any pending claims related to allegations of excessive force by Hartford police officers, between 1998 and June 23, 2005.

 

15.  At the hearing in this matter, the respondents made no claim of exemption; however, on brief, the respondents contend, without providing any evidence, that the exemptions for personnel or medical files, strategy and negotiations with respect to pending claims or pending litigation, trade secrets, and the attorney-client privilege, may apply to the requested records.  The Commission notes that, as of the hearing in this matter, the respondent had not even deigned to look for the requested records.  Moreover, based upon the findings in paragraph 14, above, the complainant merely seeks information related to the expenditure of public funds and preliminary claim letters or complaints.  Therefore, it is concluded that the respondents failed to prove that any of the exemptions mentioned herein apply to the requested records.

 

16.  On brief, the respondents contend that it is improper for the Commission to proceed without further involvement of the ombudsman in this matter.  However, it is inappropriate for the Commission to consider matters communicated in the context of the ombudsman process.  Regulations of Connecticut State Agencies, §1-21j-29(d).  Accordingly, such contention is without merit.

 

17.  On brief, the respondents contend that “the Commission is hardly in the position, given the state of the record, to contend that the Corporation Counsel has the records sought – whatever they may be.”  The respondent further contends that many requested records may be in the possession of outside counsel.  The Commission is astounded at the respondent’s position in this regard.  Clearly, the respondent has not even attempted to locate the requested records, yet alleges that, because of such recalcitrance and failure to offer proof, the Commission is deprived of making determinations in this matter.  Moreover, the Commission notes that a similar argument was made by the respondent, to no avail, in Docket #FIC 2004-071; Alexander Wood and The Manchester Journal-Inquirer v. Alexander Aponte, Corporation Counsel, City of Hartford (Oct. 13, 2004).

 

18.  It is found that the respondent office is the logical repository for the requested records.  It is further found that even those requested records which might be in the possession of outside counsel are “maintained or kept on file by the respondent,” within the meaning of §1-210(a), G.S., since such outside counsel are necessarily the agents of the respondent.  See, First Selectman of Columbia v. Freedom of Information Commission, Docket #CV00-0501005, Judicial District of New Britain, (November 28, 2000, (Owens, J.) (physical custody of records not required).  Additionally, it is concluded that the requested records are public records within the meaning of §1-200(5), G.S., since such records relate to the conduct of the public's business, owned and used by the respondents.     

 

19.  On brief, the respondents also contend that looking for the requested records amounts to research.  The Commission disagrees.  It is found that it will be a simple matter for the respondent office to search its case files related to Hartford police officers and cull from the plain face of such records payout amounts, dates, payees, payers, docket numbers, and names of officers involved; likewise, in a well maintained office, it should be a relatively easy task to identify pending claims or complaints alleging police officer excessive force.  Should the respondents’ records indicate that some documents are located with outside counsel, they can easily make appropriate arrangements to retrieve copies of any such documents.  It is found that no analysis is required to comply with the complainant’s request.  See Wildin v. Freedom of Information Commission, 56 Conn. App. 683, 687 (2000) (analysis is component of “research”).   

 

20.  At the hearing in this matter, the respondents contended that many settlement amounts might be under court seal.  When questioned by the hearing officer as to whether the respondents were prepared to present any proof with regard to this claim, the respondents replied in the negative.  The hearing officer gave leave for the respondents to present all evidence with respect to such claim as an after filed exhibit. 

 

21.  The respondents presented an after-filed exhibit on November 15, 2005, which exhibit is herein marked Respondent’s Exhibit 2.  It is found that, on July 24, 2004, United States District Magistrate Judge Thomas Smith sealed the settlement agreement and stipulation of dismissal in the matter of Norma Watts v. Officer Robert Allan, Civ. Action No.3:00CV0681 (RNC), United States District Court, District of Connecticut.

 

22.  The Commission takes administrative notice of City of Hartford v. Chase, 942 F. 2d 130 (1991), which dealt with the disclosure of documents pertaining to a settlement agreement under the FOI Act when a court has entered a confidentiality order with respect to such documents.   In City of Hartford, the court emphasized that a federal court’s power to seal documents takes precedence over FOI Act rules that would otherwise allow documents to be disclosed.  Accordingly, the orders of the Commission in this matter do not include the settlement amount in the Norma Watts case described in paragraph 21, above. 

 

23.  Finally, at the hearing in this matter, corporation counsel for the City of Hartford stated that he felt that the complainant was on a “fishing expedition” and that her request was “reprehensible.”  Of course, such counsel’s opinions are immaterial and the complainant’s motives are irrelevant to the determination of the issue of whether the requested records are public records disclosable under the FOI Act.  The respondents must comply with the FOI Act, despite their apparent aversion to doing so.

 

24.  It is concluded that the respondents violated the FOI Act, as alleged in 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 respondents shall provide the complainant with copies of the requested records as described in paragraph 14, of the findings, above, using the methodology described in paragraph 19, of the findings above, as a guide, and any other reasonable means to ensure that such copies be provided.  Such copies shall be provided free of charge.

 

2.  In complying with paragraph 1 of the order, the respondents may redact the settlement amount sealed by the federal court as described in paragraph 21, of the findings, above.  

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 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:

 

Diane Polan

129 Church Street, Suite 802

New Haven, CT 06510

 

Office of the Corporation

Counsel, City of Hartford;

and City of Hartford

ATT: John Rose, Jr.,  Esq.

City of Hartford

Office of the Corporation Counsel

550 Main Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-336FD/paj/6/29/2006