FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                               

 

            The above-captioned matter was heard as a contested case on April 11, 2006, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.

 

            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)(A), G.S.

 

2.  By letter dated December 5, 2005, the complainants made a request for “a copy or copies of any and all videotapes reviewed in determining whether Officer Brian Lawlor violated department policies regarding use of force leading to his termination” (the “requested records”). The complainants stated that, when such records “reveal police brutality”, they “do not meet the exemption in C.G.S. Sec. 1-210(b)(3)”.   

 

3.  By letter dated December 13, 2005, the corporation counsel for the respondent declined to provide the requested records, citing the exemption at §1-210(b)(3)(C), G.S., for records to be used in a prospective law enforcement action if prejudicial to such action.    

 

4.  By letter dated and postmarked January 13, 2006, the complainants appealed to the Freedom of Information Commission (“Commission”), claiming a violation of the Freedom of Information Act (“FOIA”).

 

5.  Section 1-206(b)(1), G.S., states in relevant part:

 

A notice of appeal shall be filed within thirty days after such denial…. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. (emphasis added)

 

6.  It is found that the complainants would not have received the December 13, 2005 letter of denial until at least the next day, December 14, 2005. It is also found that it was thirty days from December 14, 2005 to January 13, 2006, the date the complaint was postmarked. 

 

7.  It is therefore concluded that the complainants did file their complaint within thirty days of the denial, as required by §1-206(b), G.S., and that the Commission has jurisdiction over the complaint.

 

8.  Sections 1-210(a), 1-211(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

…

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

9.  Section 1-210(b)(3), G.S., in relevant part exempts from mandatory disclosure:

 

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….

 

10.  The respondent’s burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).          

 

11.  At the hearing, both the complainants and the respondent cited relevant Commission decisions, respectively, Paul Bass and New Haven Advocate v. Chief of Police, East Haven Police Department; Public Information Officer, State of Connecticut, Department of Public Safety; State of Connecticut, Department of Public Safety, FIC 1997-147 (hereinafter “Bass”), and Nancy Andrews and WVIT, Channel 30 v. Chief of Police, Bloomfield Police Department, FIC 1997-062. 

 

12.  It is found that the requested records include two videotapes, with audio, taken by cameras mounted inside the relevant police cruisers. The respondent has submitted two video clips on a DVD disc for an in camera inspection.  Such records are hereby identified as IC-2006-020-1 (identified on the DVD disc submitted as “9_15_ incident_ Lawlor.avi”) and IC-2006-020-2 (identified on the DVD disc submitted as “9_15_ incident_ [name of another person].avi”). It is concluded that the respondent maintains the in camera records and that such records are public records within the meaning of §1-210(a), G.S.   

 

13.  It is found, based upon the testimony of Executive Assistant State’s Attorney Michael A. Gailor, that in January 2006, the Chief State’s Attorney’s Office opened an investigation into allegations that Officer Brian Lawlor used undue force in connection with a police chase of Alexis Hernandez that occurred on or about September 16, 2005.  It is also found that this investigation by the Chief State’s Attorney’s Office is ongoing.

 

14.  Based upon the in camera inspection, it is further found that both IC-2006-020-1 and IC-2006-020-2 will, in fact, be used in a prospective law enforcement action.

 

15.  It is further found, based upon the testimony of attorney Gailor and the in camera inspection, that if IC-2006-020-1 was disclosed, it would be prejudicial to a prospective law enforcement action, because of the potential for influencing witness testimony. Independent recollections of witnesses could be tainted if witnesses have an opportunity to view the videotape. Through the power of suggestion, witnesses could believe they remember events that they did not see. Moreover, if third parties view the videotape, these third parties may attempt to persuade witnesses that they saw something different from what they previously thought they saw.

 

16.  Moreover, concerning additional possibilities for prejudice, it is also found that some witnesses may still need to be interviewed by the Chief State’s Attorney’s Office. There is also a possibility that additional witnesses have yet to be identified. Attorney Gailor testified that he was concerned about the potential for influencing all witnesses, not just any particular witness or group of witnesses.

 

17.  Finally, it is found, based upon the in camera inspection, that disclosure of IC-2006-020-2 would not be prejudicial to a prospective law enforcement action. IC-2006-020-2 contains thirty-six minutes and twelve seconds of video and audio detailing what appears to be routine, indeed singularly uneventful, police conduct.

 

18.  It is concluded that the respondent met his burden of proof by identifying the specific manner in which disclosure of IC-2006-020-1 would be prejudicial to a prospective law enforcement action.

 

19.  It is concluded that the present case is distinguishable from Bass, where “a strong ‘public interest’ was found in addressing questions in the community as to whether “racial discrimination was a factor in the death of Malik Jones.” Bass at paragraph 11.   

 

20.  It is therefore concluded that IC-2006-020-1 is exempt from mandatory disclosure pursuant to §1-210(b)(3)(C), G.S.   

 

21.  It is also concluded that IC-2006-020-2 is not exempt from mandatory disclosure pursuant to §1-210(b)(3)(C), G.S. Accordingly, the respondent violated §§1-210(a), 1-211(a) and 1-212(a), G.S., when he declined to disclose IC-2006-020-2 to the complainant.

 

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

 

1.  The respondent shall provide the complainants with a copy of IC-2006-020-2 forthwith.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 9, 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:

 

Eric Cotton and The Meriden Record Journal

11 Crown Street

Meriden, CT 06450

 

Chief, Police Department,

City of Meriden

c/o James W. Abrams, Esq.

Corporation Counsel

142 East Main Street, Room 240

Meriden, CT 06450

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2006-020FD/paj/8/10/2006