FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 16, 2008 and October 21, 2008, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant 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 respondents are public agencies within the meaning of §1-200(1), G. S.

 

2.      It is found that, by application dated December 16, 2007, the complainant requested that the respondents provide him with copies of all records related to a 1991 criminal case arising out of his 1987 arrest, including but not limited to, evidence room log books, photographs, 911 tapes, police reports, hospital records, tape recordings, and witness statements. 

 

3.      By letter dated December 19, 2007, postmarked December 28, 2007, and filed on December 31, 2007, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the records request described in paragraph 2, above. 

 

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, to the extent they exist and are maintained by the respondents, the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G. S.

 

8.      At the July 16, 2008, hearing in this matter, the parties agreed that the respondents would provide the complainant with the requested records that they keep on file or maintain, absent witness statements and any name of a victim of sexual assault, and that the parties would communicate in writing to the Commission after the complainant’s receipt of such records, as to whether there were any outstanding issues. 

 

9.      Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the Commission on its own motion admits as an added exhibit a July 18, 2008 letter and attachments sent by the respondents to the complainant.  It is found that, by such letter, the respondents informed the complainant that two requested records were records of the superior court, that the 911 tapes had been destroyed pursuant to retention schedules approved by the State Public Records Administrator, and that a witness statement was being withheld pursuant to §1-210(b)(3), G. S.  It is also found that, under cover of such letter, the respondents sent to the complainant 49 pages of requested records and informed the complainant that the requested photographs, numbering 41, would be developed and sent to him.  

 

10.  Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the Commission on its own motion admits as an added exhibit a letter sent by the complainant to the Commission, dated July 24, 2008, in which the complainant contends that tapes or other evidence used in his trial should not have been destroyed, pursuant to a court order.  As an attachment to such letter, the complainant included a copy of a 1987 court order to preserve evidence for the complainant’s trial.  It is found that the complainant’s trial was in 1991, and that the 911 tapes described in paragraph 9, above, were destroyed in 1994.  The complainant also attached a 1999 motion to the court from his attorney to further preserve evidence related to his criminal conviction; however, no ruling on such motion was presented to the Commission.

 

11.   Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the Commission on its own motion admits as an added exhibit an August 6, 2008, letter from the complainant to the Commission, complaining about alleged professional misconduct of his trial attorney and alleged misconduct on the part of New Haven Police officers.  The complainant also informed the Commission that he had received only 32 photographs from the respondents. 

 

12.   Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the Commission on its own motion admits as an added exhibit an August 29, 2008, letter from the complainant to the Commission, in which he stated his belief that his mail is being intercepted. 

 

13.   Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the Commission on its own motion admits as an added exhibit a September 10, 2008 letter from the complainant to the Commission, again asking for copies of all 41 photographs. 

 

14.   It is found that the respondents conducted a diligent search for all requested records

kept on file at the police department, including a search of the property room, the records room, and investigative services division.  It is also found that the respondents have provided the complainant with all requested records located within the physical confines of the police department, with the exception of a witness statement. 

 

15.   The respondents provided a copy of the witness statement for in camera review.

 Such copy shall be referenced as IC -2007-713-1 through IC-2007-713-9.

 

16.  The respondents contend that the in camera document is exempt pursuant to §1-

210(b)(3)(B), G. S.

 

17.   Section 1-210(b)(3)(B), G. S., exempts from mandatory disclosure:

 

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 …signed statements of witnesses….

 

18.   Upon careful review of in-camera document IC-2007-713-1 through IC-2007-713-9,

it is found that such document constitutes a signed statement of a witness, which is not otherwise

available to the public, and which was compiled by a law enforcement agency in the

investigation of crime.  Accordingly, it is concluded that such record is exempt from

mandatory disclosure by virtue of §1-210(b)(3)(B), G. S.  It is further concluded that the

respondents did not violate the FOI Act by withholding such record from the complainant. 

 

19.   With respect to the missing photographs, at the October 21, 2008, hearing in this

matter, the respondents pledged to again send to the complainant copies of all 41 photographs.

 

20.   At the October 21, 2008, hearing in this matter, the respondents also pledged to

contact the Office of the State’s Attorney to determine what records that office may have taken

from the respondents with respect to the requested records related to the complainant’s 1987

arrest and 1991 trial, and further, to attempt to either retrieve or copy any such records, and

provide such copies to the complainant.  

 

21.  It is concluded that the respondents violated the promptness provisions of §§1-210(a)

and 1-212(a), G.S.

 

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

 

1.      If they have not already done so, forthwith, the respondents shall provide the complainant with copies of all 41 photographs described in paragraph 9 of the findings, above. 

 

2.      If they have not already done so, the respondents shall forthwith contact the Office of

the State’s Attorney to determine what responsive records that office may have taken from the

respondents, and further, to retrieve or copy any such records, and provide such copies to the

complainant.  

 

3.       In the event that the Office of the State’s Attorney does not maintain any records

described in paragraph 20 of the findings, above, the respondents shall so notify the complainant

in an affidavit.   

 

4.      Henceforth, the respondents shall strictly comply with the promptness 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 December 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:

 

Raymond J. Cerilli

MacDougall-Walker C I

1153 East Street, South

Suffield, CT 06080

 

Chief, Police Department, City

of New Haven; and Police

Department, City of New Haven

c/o Kathleen M. Foster, Esq.

Office of Corporation Counsel

165 Church Street, 4^th Floor

New Haven, CT 06510

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-713FD/sw/12/15/2008