FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 28, 2008, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that by letter, dated April 26, 2008, the complainant made a request to the respondents for copies of “all records pertaining to the ‘investigation’ of my wife, Sally Rungee” from late January 2008 (the “requested records”), including:

 

a)      records compiled by Detective Sean McMahon and/or any other town police officer in the course of the investigation of Mrs. Rungee;

 

b)      records compiled by any Town of Berlin employee, be they employed by the Police Department, any other Town of Berlin department, or affiliated with any town fire department, or other third parties related to the investigation;

 

c)      an audio copy of the voice message left by Mrs. Rungee on the telephone of the town Fire Marshall and a transcribed copy of that voice message; and

 

d)     records of all conversations concerning the telephone message referred to at paragraph 2c) above.

 

3.  It is found that by letter dated May 1, 2008 the respondent Chief, Police Department acknowledged the complainant’s request and stated that “no records will be provided,” because the requested records are exempt as uncorroborated allegations pursuant to §1-210, G.S.

 

4.  By letter dated May 12, 2008 and filed with the Commission on May 14, 2008, the complainant appealed to the Commission, alleging that the respondents’ failure to provide the requested records violated the Freedom of Information Act.

 

5.  Section 1-200(5), G.S., states:

 

“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.

 

6.  Sections 1-210(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 person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

7.  It is concluded that the requested records, to the extent that they exist, are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.  Sections 1-210(b) and 1-216, G.S., state, respectively, in relevant parts:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

(3) 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 … (G) uncorroborated allegations subject to destruction pursuant to section 1-216;

 

….

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

9.  At the hearing, the respondents agreed to submit the requested records for an in camera inspection. The respondents submitted ten records.  On the index to the in camera records, the respondents claimed the exemption at §1-210(b)(3)(G), G.S., for the entirety of each record. Such records are hereby identified as IC-2008-342-1 through IC-2008-342-10.

 

10.  It is found that the complainant and his wife, Mrs. Rungee, were in a protracted dispute with a neighbor, Michael Rogin. Mr. Rogin had previously been arrested for criminal impersonation of the complainant. Between Thanksgiving 2007 and New Year 2008, Mr. Rogin directed an emergency responder’s strobe light exclusively at the home of the complainant and Mrs. Rungee for sixteen to eighteen hours per day. It is also found that Mrs. Rungee suffered serious, chronic cardiac disease.

 

11.  It is further found that Mr. Rogin made a complaint against Mrs. Rungee concerning a recorded telephone message she had left on January 29, 2008 for the town Fire Marshall, Steven Waznia. Mr. Rogin alleged that Mrs. Rungee’s allegations in the message damaged his standing, effectiveness and credibility with his supervisors in the Town of Berlin (where he is a volunteer firefighter) and others in the firefighter community. (Mr. Rogin is a paid firefighter in Hartford). Based upon Mr. Rogin’s complaint, the respondent Department brought an affidavit to the prosecutor alleging that Mrs. Rungee had criminally harassed Mr. Rogin pursuant to §53a-183(a), G.S., but the prosecutor declined to issue a warrant for the arrest of Mrs. Rungee.   

 

12.  It is also found that no copy or transcript of the voice message referred to in paragraph 2.c), above, exists. Fire Marshall Waznia erased the recorded message on January 29, 2008.

 

13.  It is further found that the requested records are the records of a law enforcement agency, that they are not otherwise available to the public, and that they were compiled in connection with the investigation of crime.                  

 

14.  The American Heritage Dictionary (2^nd College Ed. 1976) defines corroborate to mean: “To support or confirm by new evidence; attest the truth or accuracy of.”

 

15.  Black’s Law Dictionary (5^th Ed. 1979) defines “corroborate” to mean:

 

To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.  The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.

 

16.  Based upon the in camera inspection, it is found that, while the prosecutor determined that there was a lack of probable cause to support a claim of criminal harassment, the contents of Mrs. Rungee’s January 29, 2008 telephone message for the town Fire Marshall, Steven Waznia, were, in fact, corroborated in two specific ways:

 

a) Deputy Fire Marshall Matthew Odishoo entered Fire Marshall Waznia’s office on January 29, 2008 during a playback of the recorded message and heard the substance of Mrs. Rungee’s message (see in camera record IC-2008-342-2, page 3, lines 19 to 23; in camera record IC-2008-342-6, page 3 of affidavit, lines 11 to 15; and in camera record IC-2008-342-9, page 1, lines 8 to 11); and

 

b) Detective Sean McMahon telephoned Mrs. Rungee on February 5, 2008, and without prompting, she repeated the allegations of her January 29, 2008 telephone message for Fire Marshall Waznia (see in camera record IC-2008-342-3, page 1, lines 4 to 12; in camera record IC-2008-342-4, page 2, lines 12 and 13; and in camera record IC-2008-342-6, page 4 of affidavit, lines 27 to 33).  

 

 17. Based upon the corroboration detailed in paragraph 16, above, it is concluded that the requested records are not exempt from mandatory disclosure pursuant to §1-210(b)(3)(G), G.S. See Michael Thibault v. Chief, Police Department, City of New London, Docket #FIC 2006-344; Bona v. Freedom of Information Commission; Rowland v. Freedom of Information Commission, 44 Conn. App. 622 (1997); Bona v. Freedom of Information Commission; Rowland v. Freedom of Information Commission, CV94-0123208S, CV94-0123411S (1995).  

 

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

 

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

 

1.  The respondents shall forthwith provide the requested records to the complainant without any copying charge.

 

 

 

            Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 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:

 

Robert C. Rungee

c/o Jon L. Schoenhorn, Esq.

Jon L. Schoenhorn & Associates, LLC

108 Oak Street

Hartford, CT 06106

 

Chief, Police Department,

Town of Berlin; and Police Department,

Town of Berlin

c/o Robert F. Weber, Jr., Esq.

Weber & Carrier, LLP

24 Cedar Street

New Britain, CT 06052

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-342FD/sw/10/28/2008