FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

        

The above-captioned matter was heard as a contested case on January 29, 2008, at which time the complainant and the respondent appeared, stipulated to certain facts 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), G.S.

 

2.  By letter of complaint filed September 25, 2007, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for public records. 

 

            3.  It is found that by letter dated September 12, 2007, the complainant made a written request to the respondent for any and all 911 calls and police broadcast transmissions for case # 07-13886 involving Officer Michael Farrell and other officers on July 31, 2007 from 4:41 p.m. to 10 p.m., pertaining to an incident at 166 Plainville Avenue in Unionville.

 

4.  It is found that the respondent denied the request by letter dated September 17, 2007, asserting that the request was forwarded to the State’s Attorney’s office at GA 14 in Hartford, and that that office objected to the release of the record. 

 

5.  It is found that the respondent provided the requested record on December 21, 2007, demanding payment of $3.00, after he had determined that there was no longer any pending criminal matter.

 

6.  Section 1-200(5), G.S., provides:

    “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.

 

7.  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, (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. 

 

8.  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.” 

 

9.  It is concluded that the requested recording is a public record within the meaning of §§1-200(5) and 1-210(a), G.S.

 

            10.  The respondent contends that he was simply following a directive from Hartford Judicial District’s State’s Attorney’s Office.     

 

11.  It is found that then State’s Attorney James E. Thomas issued a memorandum dated August 16, 2002 to all police departments in the Hartford Judicial District, which memorandum provides:

 

It has recently come to my attention that some police departments are routinely responding to requests (by subpoena or otherwise) for copies of police reports or other documentation (including 911 tapes) within the control of law enforcement which relate to on going investigations and/or prosecutions.  [Emphasis in original.]

 

Please be advised that documentation relating to on-going cases is generally protected from disclosure.  In the case of a pending prosecution, the defendant is able to obtain information from the prosecutor through discovery and is not entitled to circumvent the rules of discovery through subpoena.

 

If you receive such a request, please notify the appropriate prosecutor or inspector assigned to your department before complying with such request so that we may oppose disclosure when warranted.

 

12.  It is found that the respondent, through his lieutenant, contacted the appropriate investigator at the GA 14 court, who directed him not to disclose the requested records because the criminal case was still pending.

 

13.  It is found that the respondent did not review the tape before calling the investigator, and that the investigator did not review the tape.

 

14.  It is found that the respondent failed to prove that the State’s Attorney’s office had custody of the recording, or a copy of the recording, or that the recording was available through discovery at the time of the request.

 

15.  It is found that the respondent failed to prove that anything on the tape was statutorily exempt from disclosure under the FOI Act.

 

16.  It is found that the respondent had no reason, statutory or otherwise, not to disclose the requested records, other than the investigator telling him not to.

 

17.  The respondent acknowledges that the State’s Attorney’s office only has the right to request that the respondent not disclose public records, not to dictate the respondent’s actions.

 

18.  It is found that the only reason for the delay in providing the requested records was that the criminal case was not closed, and that the respondent relied on the directive from the State’s Attorney’s inspector.

 

19.  It is well established that “information is not exempted from disclosure by the mere good faith assertion that the matter to which the information pertains is potentially criminal.  As we have stated, there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.”  Department of Public Safety v. FOIC, 51 Conn. App. 100, 105 (1998).

 

20.  It is concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide the requested records promptly. 

 

21.  At the hearing, the complainant requested the following relief:

 

a.                         That he receive the record free of charge, because it was not provided promptly;

b.                        That the Commission order the imposition of a civil penalty against the respondent Chief of Police, because the violation was deliberate; and

c.                         That the Commission issue a directive requiring the respondent to comply with the FOI Act specifically with requests for recordings of police broadcasts.

 

22.  With respect to the complainant’s request for a civil penalty, §1-206(a), 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. 

 

23.  The respondent contends that his violation of the FOI Act was not without reasonable grounds because he reasonably considered the 911 tape and associated police broadcast recordings to be part of the record of arrest, and among the limited items required to be disclosed under §1-215(b), G.S., and Gifford v. FOIC, 227 Conn. 641 (1993).

 

24.  Section 1-215(b), G.S., provides in relevant part:

 

… “record of the arrest” means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency:  The arrest report, incident report, news release or other similar report of the arrest of a person. 

 

25.  The respondent contends that Gifford “caused a confusion that lingers” with respect to the disclosure of the requested records.

 

26.  It is concluded, however, that Gifford deals exclusively with whether a municipal police department arrest or incident report must be disclosed by the police department to the public while the criminal prosecution that is related to the arrest report is pending.

 

27.  The Commission takes administrative notice of the fact that the term “arrest report” is ordinarily synonymous with the term “incident report,” and that an arrest report contains written biographical information and written information concerning the factual circumstances of an arrest.  See, e.g., Hopkins v. O’Connor, 282 Conn. 821, 841 (2007); Demers v. State, 209 Conn. 143, 149 (1998); State v. Clinkscales, 21 Conn. App. 411, 418 (1990).

 

28.  It is concluded that no reasonable reading of either §1-215(b), G.S., or Gifford, above, suggests that either a recording of a 911 call, or the police broadcasts related to that call, are the “record of arrest” or an “arrest report.”

 

29.  The Commission notes that it has recently ruled that a violation of the FOI Act which lacks any reasonable statutory basis is without reasonable grounds within the meaning of §1-206(a), G.S.  Hartford Courant v. Nasto, Docket #FIC 2007-165; affirmed, Nasto v. FOIC, Docket No. CV 08-4016400-S, Superior Court, Judicial District of New Britain, Memorandum of Decision dated July 23, 2008 (Cohn, J.).  The Court concluded in Nasto that pure reliance on advice or a directive from a State’s Attorney was not reasonable grounds for withholding a public record, in the absence of any statutory authority.

 

30.  It is therefore concluded that the respondent’s violation of the FOI Act was without reasonable grounds. 

 

31.  However, under the facts and circumstances of this case, the Commission is reluctant to find that the respondent is the official directly responsible for the denial of the complainant’s rights under the FOI Act.  Although the respondent is certainly responsible for the acts of his lieutenant, the lieutenant was acting on the advice of an inspector assigned to the Hartford State’s Attorney’s Office, who in turn was relying on a 2002 memorandum issued by the Hartford State’s Attorney.   The lieutenant had no legal training, the inspector was not experienced in FOI Act matters, and no evidence was presented that either was acting in bad faith.  While the complainant was delayed two months in obtaining the requested record, he did not claim at the hearing that he was prejudiced by that delay in this particular case.  Further, the Commission believes that an alternative remedy, as described below, will better address any future delays in the disclosure of requested recordings of 911 calls and police broadcasts.

 

32.  Consequently, the Commission in its discretion declines to impose a civil penalty in this matter.

 

33.  With respect to future requests for copies of 911 or broadcast recordings, §1-210(a), G.S., provides in relevant part: “Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.”

 

34.  It is found that the August 16, 2002 Thomas memorandum described in paragraph 11, above, to the extent that it is relied upon by the respondent to deny requests for 911 and police broadcast recordings without any evidence of exemption, and purely on the objection of the State’s Attorney’s Office, diminishes and curtails the rights granted by subsection 1-210(a), G.S.

 

35.  Also, §1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. 

 

36.  In addition to the authority granted under §1-210(a), G.S., the Commission also believes that vacating the August 16, 2002 memorandum, to the extent that it is relied upon to deny access to records in the absence of evidence of a statutory exemption and purely upon the objection of the State’s Attorney’s Office, is relief appropriate to rectify the denial of the complainant’s right of prompt access to the requested records, within the meaning of §1-206(b)(2), G.S.

 

 

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 requested record to the complainant free of charge.

 

            2.  The August 16, 2002 Thomas memorandum described in paragraph 11 of the findings, above, is declared null and void to the extent that it is used by the respondent to deny requests, upon the request of directive of the Hartford State’s Attorney’s Office, in the absence of evidence of a statutory exemption that would satisfy the requirements of Department of Public Safety v. FOIC, above.  The respondent is expressly prohibited from relying on that memorandum in the future to deny requests for 911 and police broadcasts recordings merely because a representative of the State’s Attorney’s Office objects to disclosure on the grounds that the case is still pending.

 

3.  Nothing in this Final Decision shall be construed to prohibit the respondent from consulting with the Hartford State’s Attorney’s Office to determine whether a requested records falls within any statutory exemption from disclosure.

 

4.  The respondent shall mail copies of this Final Decision to each municipal police department in the Hartford Judicial District.

 

5.  Henceforth the respondent shall strictly comply with the promptness 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 September 10, 2008.

 

 

____________________________

S. Wilson

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:

 

Jon Schoenhorn  

108 Oak Street

Hartford, CT 06106

 

Chief, Police Department,

Town of Farmington

c/o John W. Bradley, Jr., Esq. 

Rome McGuigan, PC

One State Street

Hartford, CT 06103

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-520FD/sw/9/13/2008