FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 10 and 22, 2008, at which times the complainant and respondents 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.). 

           

                For purposes of hearing, the above captioned matter was consolidated with Docket #FIC 2008-057; Luis Salaman v. Chief, Police Department, City of New Haven; and Police Department, City of New Haven.

 

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), G.S.

 

2.      By letter dated November 29, 2007 and filed on December 4, 2007, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his November 19, 2007 records request.  The complainant requested the imposition of a civil penalty against the respondent.

 

3.      By letter dated November 19, 2007, to the respondents, the complainant resubmitted requests dated July 7, September 24, and November 19, 2007 for copies of:

 

a.       any and all records related to the investigation of the death of Domingo Rodriguez including any records on the two suspects, a Patrick Mimms and a John Williams, who were arrested in connection with the death, including any and all warrants of their arrest;

 

b.      any and all records with respect to the investigation of the death of a Larry Mabery and any color mug shot photos of him that may be on file with the respondents;

 

c.       the respondent department’s policy, rules, regulations or standard operating procedures related to interrogating suspects;

 

d.      color photos of shell casings that were found in the door jamb of a certain blue Cadillac in case #03-44764;

 

e.       color copies of photos taken by a Sergeant Esposito in case #03-44764 on August 30, 2003 along with related photo logs; and

 

f.       photos of the victim’s vehicle in case #03-44764.

 

 

4.      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.

 

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.      It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that the respondents compiled a little over 200 pages of records responsive to the complainant’s requests including: incident reports, forensic reports, witness statements, photographs, a form JD-CR-18, and the mug shots of Mimms and Williams. 

 

9.      However, with respect to the complainant’s request in paragraph 3a, above, it is found that arrest warrants are not maintained by the respondents and therefore they do not maintain any records responsive to that portion of his request.

 

10.   It is also found that the respondents do not maintain any record responsive to the complainant’s request described in paragraph 3c, above.

 

11.   It is found that after some discussion at the October 10, 2008 hearing the respondents agreed to conduct a search specifically for the records described in paragraph 3d through 3f, above.  It is found that at the October 22, 2008 hearing, the respondents indicated that they had located the requested photos which included Polaroid photos taken by Sergeant Esposito, color photos of shell casings, and a number of other photos taken by the State Prosecutor’s office.  It is found, however, that the respondents do not maintain a photo log of any of the photos described herein.

 

12.   It is found that the records described in paragraph 11, above, were maintained and in the custody of the State Prosecutor’s office and after an inquiry and a request for the records, the respondents were provided with a copy of them on a CD by that office which copy the respondents are willing to provide to the complainant.

 

13.   It is found that the records, as described in paragraphs 8 and 11, above, constitute all the records responsive to the complainant’s requests maintained by the respondent.

 

14.   It is also found that the respondents do not claim any exemption with respect to the records described in paragraphs 8 and 11, above; however, some of the records contain redactions to which the complainant has no objection.

 

15.   With respect only to the records described in paragraph 8, above, it is found that, on or about October 7, 2008, the respondents, pursuant to their understanding of the requirements of §1-210(c), G.S., provided those records via e-mail to the FOI Liaison at the Connecticut Department of Correction (hereinafter “DOC”), who, at the time of the October 10, 2008 hearing in this matter, had not provided the records to the complainant nor had she informed him that she had received the records.

 

16.   It is found that the respondents’ belief that they had complied with §§1-210(a), 1-212(a), and 1-212(c), G.S., by providing the requested records to the DOC’s FOI Liaison was mistakenly affirmed by certain members of this Commission’s staff.

 

17.   It is found that the respondents reasonably believed that they had fulfilled the requirements of the law under §§1-210(a), 1-212(a), and 1-212(c), G.S., and made no further contact with the complainant.

 

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

 

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility.

 

19.   Notwithstanding paragraph 16, above, it is concluded that §1-210(c), G.S., requires a public agency to provide all records responsive to an inmate’s records request, for which no exemption is being claimed by that public agency, directly to that inmate after the public agency has notified the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services of the inmate’s records request.  It is concluded that §1-210(c), G.S., does not require a public agency to consult with or provide the responsive records to the Commissioner prior to complying with the inmate’s request. 

 

20.   It is concluded, therefore, that notwithstanding any action taken by the Commissioner of DOC to intercept the complainant’s receipt of the requested records once they were delivered at the correctional institution or facility, the respondents were required to provide the records described in paragraph 8, above, to the complainant directly.

 

21.   It is further found, in addition, that the respondents did not provide the records to the DOC until three days prior to the hearing in this matter.

 

22.   At the hearing in this matter the respondents claimed that respondent Young, who is in charge of the Records Divisions of the respondent police department, did not receive the complainant’s request until July when it received this Commission’s order to show cause and notice of hearing in this matter dated July 23, 2008. 

 

23.   It is found that while it took at least nine hours to locate, compile and redact the records described in paragraph 8, above, the respondents offered no explanation for why it took two months to attempt to provide the complainant with such records.

 

24.  It is found that the respondents failed to prove that they complied with the promptness provisions of §§1-210(a) and 1-212(a), G.S.

 

25.   It is found, therefore, that with respect to the records described in paragraph 8, above, the respondent failed to promptly comply with the complainant’s request.

 

26.   It is concluded, therefore, that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to promptly comply with the complainant’s request.

 

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

 

…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.

 

28.   It is found that the respondent’s failure to promptly comply with the complainant’s request, pursuant to §§1-210(a) and 1-212(a), G.S., was without reasonable grounds.

 

29.   It is also found that the respondent chief, Francisco Ortiz, is the official directly responsible for the violation described in paragraph 26, above.

 

30.   However, in light of the misinformation provided by the Commission as described in paragraph 16, above, and the respondents’ willingness to obtain records that they did not have in their physical custody in order to facilitate the complainant’s access to the records he requested, this Commission, in its discretion, declines to impose a civil penalty in this matter.

 

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

 

1.  The respondents shall mail a paper copy of the records described in paragraphs 8 and 11, of the findings, above, to the complainant, at his place of incarceration, free of charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 2008.

 

 

________________________________

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:

 

Luis Salaman, #262626

Carl Robinson Correctional Institution

PO Box 1400

Enfield, CT 06082-1400

 

Francisco Ortiz, Chief, Police Department,

City of New Haven; Sergeant Roger Young,

Police Department, City of New Haven;

and Police Department, City of New Haven

c/o Kathleen M. Foster, Esq.

Office of the Corporation Counsel

165 Church Street, 4^th Floor

New Haven, CT 06510

 

Commissioner, State of Connecticut,

Department of Correction

c/o Steven R. Strom, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-658FD/paj/11/18/2008