FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 6, 2007, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).

 

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 dated July 27, 2006, the complainant made a request to the respondent for the following:

 

a.       the respondent’s policy and procedure manual with respect to narcotics investigations;

b.      the “policy procedure of police officer under investigation into criminal drug case [sic];”

c.       all log book entries with respect to the respondent’s investigation of the complainant including orders by captains or lieutenants for marked money and permission from captains or lieutenants for surveillance of him; and

d.      any log book entries made on October 16, 2003.

 

3.      By letter dated August 22, 2006, the complainant made a request to the respondent for the following:

 

a.       the booking report for his November 03, 2003 arrest;

b.      the booking officer’s name and his reports;

c.       copies of the pictures taken of him after his arrest on November 03, 2003;

d.      copies of all affidavits of the arresting officer; and

e.       copies of all the information with respect to the drug investigation.

 

4.      By letters dated August 7 and 28, 2006 and filed on August 9 and September 8, 2006, respectively, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his records requests.  The complainant requested the imposition of a civil penalty against the respondent.

 

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

 

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 . . . receive a copy of such records in accordance with section 1-212. 

 

6.      Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

 

7.      Section 1-200(5), G.S., provides in relevant part that:

 

“Public records or files” means 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.

 

8.      It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

9.      It is found that by letter dated August 1, 2006, the respondent informed the complainant that a further reply to his July 27, 2006 request would be forthcoming.

 

10.  It is found that by letter dated August 24, 2006, the respondent requested clarification of the complainant’s July 27, 2006 request for “policy procedure of police” claiming in that letter that it was not clear which records the complainant was actually requesting.

 

11.   It is found that by letter dated September 8, 2006, the respondent informed the complainant that a further reply to his August 22, 2006 request would be forthcoming.

 

12.   It is found that by letter dated September 12, 2006, the respondent again informed the complainant that a further reply to his August 22, 2006 request would be forthcoming and again requested clarification of the complainant’s July 27, 2006 request for “policy procedure of police.”

 

13.   It is found that by letter dated September 19, 2006, the complainant explained that he was requesting “copies of any and all policy and procedures used by the Waterbury Narcotics Division when using marked money or Waterbury police funds in connection with a narcotic drug buy . . . [and the] policy and procedure [the] Waterbury Narcotics Division uses when conducting surveillance of a subject of a narcotics investigation, specifically how such surveillance is documented, who authorizes that surveillance, how whereabouts of officers involved in surveillance is kept, and who is in charge of such assignments.”  It is found that the complainant also explained that he wanted “information on how the supervisor keeps records of officers he/she has assigned to a particular case.”

 

14.   It is found that by letter dated November 20, 2006, the respondent provided the complainant with two documents responsive to his requests - the booking report for the arrest of the complainant dated November 4, 2003 and a Laboratory - Controlled Substance report dated January 26, 2004. 

 

15.  At the hearing on this matter, the complainant contended that the respondent failed to provide him the correct booking report, explaining that the report he was provided is dated November 4, 2003 and he was arrested on November 3, 2003.

 

16.  It is found, however, that the complainant was arrested minutes before midnight on November 3, 2003 and he was not processed and “booked” until some minutes after midnight on November 4, 2003.  It is found that the booking report the complainant was provided reflects the date on which it was generated and that it is the correct record responsive to his request in that regard.

 

17.   It is also found that the respondent maintained other documents responsive to the complainant’s requests; however, the two documents described in paragraph 14, above, were the only documents the complainant agreed to pay for since they were the only documents he did not already have in his possession.

 

 

 

18.   It is found, however, that the respondent did not consider the department’s policy and procedure manual with respect to narcotics investigations as a document responsive to the complainant’s requests, claiming at the hearing that at the time of the complainant’s arrest, no written policy or procedures with respect to narcotics surveillance, or the use of marked money or informants existed.

 

19.   It is found, however, that while it may not have been unreasonable for the respondent to assume that the complainant’s requests were limited to the written policy and procedures that were in effect at the time of his arrest, a plain reading of the complainant’s September 19, 2006 explanation of his requests sets no such limitations.

 

20.   It is found that the scope of the complainant’s request includes any written policy and procedure with respect to narcotics investigations, and the use of marked money and informants that existed at the time of his request.

 

21.   It is found that a written policy and procedure with respect to narcotics investigations of the Waterbury Police Department and the use of marked money and informants by that department was implemented in August of 2004 and that such policy is within the scope of the complainant’s July 27, 2006 request.

 

22.   It is found that the respondent submitted the policy and procedure with respect to narcotics investigations and the use of marked money and informants to the Commission for in camera inspection, which records have been identified as in camera records docket #FIC 2006-402-01 through #FIC 2006-402-07, consisting of three documents, described as:

 

a.       Informant Activities – Policy and Procedures;

b.      Confidential Funds – Policy and Procedures; and

c.       Surveillance and Undercover Operations - Policy and Procedures.

 

23.   The respondent contends that the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(D), G.S., which provides that disclosure is not required 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 … (D) investigatory techniques not otherwise known to the general public ….

 

24.   It is found that the in camera records described in paragraph 22, above, are “records of [a] law enforcement [agency] not otherwise available to the public which records were compiled in connection with the detection or investigation of crime” within the meaning of §1-210(b)(3), G.S.

 

25.   It is found that the respondent has already provided the complainant with the records described in paragraph 22a.  Therefore, this issue is moot.

 

26.  It is found that disclosure of the in camera records described in paragraph 22b, above, would not result in the disclosure of “investigatory techniques not otherwise known to the general public” within the meaning of §1-210(b)(3)(D), G.S., because such records are records of the Waterbury Police Department’s administrative policy and procedures for tracking, and maintaining records regarding, the use of informants and confidential funds (marked money) within the department and do not reveal any systematic procedures or methodologies used by the department in its observation, examination or inquiries into crime that are not known to the public.

 

27.   It is concluded therefore that the in camera records described in paragraph  22b, above, are not exempt from disclosure pursuant to §1-210(b)(3)(D), G.S., and it is further concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of such records.

 

28.   It is found, however, that disclosure of the in camera records described in paragraph 22c, above, would result in the disclosure of “investigatory techniques not otherwise known to the general public” within the meaning of §1-210(b)(3)(D), G.S., because such records reveal the Waterbury Police Department’s techniques for surveillance of suspects and undercover operations.

 

29.   It is concluded therefore that the in camera records described in paragraph 22c, above, are exempt from mandatory disclosure pursuant to §1-210(b)(3)(D), G.S., and it is further concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of those records.

 

30.   Based upon the facts and circumstances of this case the Commission will not consider the imposition of a civil penalty against the respondent.

 

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 provide the complainant with a copy of the records described in paragraph 22b, of the findings above, free of charge.

 

2.      Henceforth, the respondent shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 25, 2007.

 

________________________________

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:

 

Kareem Batts, #233975

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Chief, Police Department,

City of Waterbury

c/o Janis M. Small, Esq.

Office of the Corporation Counsel

City of Waterbury

236 Grand Street

Waterbury, CT 06702

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-402FD/paj/7/30/2007