FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 16, 2007, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2007-226, Daniel Goren and the Hartford Courant v. Carl Nasto, Deputy Corporation Counsel, Office of the Corporation Counsel, City of Hartford.

 

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.  It is found that, by email, dated March 8, 2007, the complainants requested that the respondent “make available/provide copies of … [a]ll subpoenas or requests for information sent to or made with the city within the last month (from Feb. 8 to the present) from any law enforcement agencies” (the requested records).

 

3.  By letter dated March 14, 2007, the respondent informed the complainants that “the [c]ity does not have any non-exempt public records that are responsive to your request.”

 

                4.  By letter dated March 19, 2007, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide them with the records described in paragraph 2, above.   In their complaint, the complainants seek a civil penalty against the respondent. 

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

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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…or (3) receive a copy of such records in accordance with section 1-212.    

 

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

 

8.  It is found that the requested records, to the extent they are maintained by the respondent, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.  It is found that, upon receipt of the request described in paragraph 2, above, the respondent conducted a search for the requested records, and that such search revealed one record responsive to the request.  It is further found that such record consists of a one-page email, dated February 22, 2007, to John Rose, Corporation Counsel for the City of Hartford, from Michael Sullivan, an investigator for the Office of the Chief State’s Attorney (the February 22 email).  It is also found that the February 22 email lists 12 “items” sought by Mr. Sullivan, “relative to my investigation.”

 

10.  It is found that, although the respondent produced a copy of the February 22 email at the hearing in this matter, the list identifying the 12 items sought by Mr. Sullivan (the list) was redacted in its entirety.  The respondent contends he is required to withhold the list from the complainants because he believed that the Chief State’s Attorney’s Office was conducting a criminal investigation of “political corruption” in City Hall. 

 

11.  Specifically, the respondent claims that the list is exempt from disclosure under §§1-201, 1-210(b)(3)(A), (B), (C), and (G), G.S.

12.  Although the respondent offered evidence at the hearing in this matter that he had subpoenaed Mr. Sullivan to appear at such hearing, it is found that neither Mr. Sullivan, nor any other representative of the Chief State’s Attorney’s Office appeared at the hearing. 

 

13.  With respect to the §1-210, G.S., claim of exemption, that provision states that “[f]or the purposes of section 1-200, the Division of Criminal Justice shall not be deemed to be a public agency except in respect to its administrative functions.” 

 

14.  It is found that the Chief State’s Attorney’s Office is an office within the Division of Criminal Justice.  However, it is also found that the list is not a record of the Division of Criminal Justice, but rather, is a record received and maintained by the respondent.  It is further found that the request for such list was made to the respondent and not to the Division of Criminal Justice.  It is therefore concluded that §1-210, G.S., does not provide a basis upon which to withhold the list from the complainant. 

 

15.  With respect to the §1-210(b)(3), G.S., claim of exemption, that provision states, in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure 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 disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action… (G) uncorroborated allegations subject to destruction pursuant to section 1-216[.]

 

16.  It is found that the list is not, in the first instance, a record of a law enforcement agency, but rather, as noted in paragraph 14, above, is a record received and maintained by the respondent.  Moreover, it is found that the respondent offered no evidence at the hearing in this matter, and therefore failed to prove, that the list was not otherwise available to the public, or that disclosure of the list would not be in the public interest because it would result in the disclosure of the identity of informants or witnesses not otherwise known, signed statements of witnesses, information to be used in a prospective law enforcement action, or uncorroborated allegations.  It is therefore concluded that §1-210(b)(3), G.S., does not provide a basis upon which to withhold the list from the complainants. 

           

17.  Based upon the foregoing, it is concluded that the respondent violated the FOI Act as alleged in the complaint.

 

18.  With respect to the complainants’ request for the imposition of a civil penalty, §1-206(b)(2), G.S. provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

            19.  It is found that the respondent is the official directly responsible for the violation.

 

            20.  It is also found that the respondent’s failure to comply with the FOI Act was without reasonable grounds.

 

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

1.  Forthwith, the respondent shall provide the complainants with a copy of the February 22 email containing the list described in paragraph 10 of the findings, above.  In complying with this order, the respondent shall not redact any portion of such record.

 

2.  Forthwith, the respondent shall remit a civil penalty in the amount of $200 to this Commission.

 

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

 

 

            Approved by Order of the Freedom of Information Commission at its regular meeting of November 28, 2007.

 

 

________________________________

Wendy R.B. Paradis

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:

 

Daniel Goren and the Hartford Courant

c/o William S. Fish, Jr., Esq.

Paul Guggina, Esq. 

Tyler Cooper & Alcorn, LLP

City Place, 35^th Floor

Hartford, CT  06103

 

Carl Nasto, Deputy Corporation Counsel,

Office of the Corporation Counsel,

City of Hartford

c/o John Rose, Jr.

Corporation Counsel

City of Hartford

550 Main Street, Room 303

Hartford, CT  06103

 

 

___________________________________

Wendy R.B. Paradis

Acting Clerk of the Commission

 

 

FIC/2007-165FD/wrbp/11/30/2007