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 respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2007-165, 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  It is found that, by email, dated March 29, 2007 (the March 29 email), the complainants requested that respondent Nasto “make available/provide copies of … [a]ll documents, including all emails, turned over to the Chief State’s Attorney’s Office as a result of that office’s requests to the city made on or after February 3, 2007” (the requested records).

 

3.  By letter dated April 4, 2007, respondent Nasto 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 April 16, 2007, the complainants appealed to the Commission, alleging that the respondents 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 respondents. 

 

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 respondents, 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, respondent Nasto conducted a search for the requested records, and that such search revealed approximately 50 to 100 records responsive to the request.  It is also found that one such record consists of a letter, dated March 14, 2007, from John Rose, Corporation Counsel for the City of Hartford, to Michael Sullivan, an investigator for the Office of the Chief State’s Attorney, responding to a February 22, 2007 email request by Mr. Sullivan for twelve “items relative to my investigation” (the March 14 letter).

 

10.  It is found that the remainder of the requested records consist of the records requested by, and provided to, Mr. Sullivan, in response to his February 22 email, including certain emails, correspondence, contracts, invoices, phone records, and the like.  At the hearing in this matter, the respondents conceded, and it is further found, that all of the requested records are maintained by the respondents, and that the respondents would have provided the complainants with copies of such records had Mr. Sullivan not previously requested and been provided with copies of such records. 

 

11.  It is found that, at the hearing in this matter, the respondents produced the March 14 letter, and that the portion of such letter that lists or describes the records being provided to Mr. Sullivan, was redacted in its entirety.  It is also found that, at the hearing in this matter, the respondents did not produce any of the other requested records. 

 

12.  Respondent Nasto contends he is required to withhold the requested records, including the description of such records in the March 14 letter, based on his belief that the Chief State’s Attorney’s Office was conducting a criminal investigation of “political corruption” in City Hall. 

 

13.  Specifically, the respondents claim that the requested records are exempt from disclosure under §§1-201, 1-210(b)(3)(A), (B), (C), and (G), G.S.

 

14.  Although the respondents offered evidence at the hearing in this matter that they 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. 

 

15.  With respect to the §1-201, 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.”

 

16.  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 requested records are not records of the Division of Criminal Justice, but rather, are records maintained by the respondents.  It is further found that the request for such records was made to respondent Nasto, 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 requested records from the complainants. 

 

17.  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[.]

 

18.  It is found that the requested records are not, in the first instance, records of a law enforcement agency, but rather, as noted in paragraph 10, above, are records maintained by the respondents.  Moreover, it is found that the respondents offered no evidence at the hearing in this matter, and therefore failed to prove, that the requested records are not otherwise available to the public, or that disclosure of the requested records 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 requested records from the complainants. 

 

19.  It is therefore concluded that §1-210(b)(3), G.S., is inapplicable in this matter and does not provide a basis upon which to withhold the requested records from the complainants. 

 

                20.  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.

 

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

 

            22.  For purposes of the municipal indemnification statute, it is also found that, though respondent Nasto’s failure to comply with the FOI Act was without reasonable grounds, it was not willful, wanton or malicious.

 

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

1.  Forthwith, the respondents shall provide the complainants with a copy of the requested records, described in paragraphs 9 and 10 of the findings, above, free of charge.  In complying with this order, the respondents shall not redact any portion of such records.

           

2.  In as much as attorney Nasto was acting in his official capacity as an employee of the respondent City, the respondent City of Hartford shall remit forthwith a civil penalty in the amount of $200 to the Commission.

 

3.  Henceforth, the respondents 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 January 14, 2009.

 

 

 

________________________________

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:

 

Daniel Goren and the Hartford Courant

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

Paul Guggina, Esq. 

Hinkley, Allen & Snyder LLP

185 Asylum Street

Hartford, CT 06103

 

Carl Nasto, Deputy Corporation Counsel,

Office of the Corporation Counsel,

City of Hartford; and City of Hartford

c/o John Rose, Jr.

Corporation Counsel

City of Hartford

550 Main Street, Room 303

Hartford, CT  06103

 

And also

 

c/o Richard F. Wareing

Pepe and Hazard

225 Asylum Street

Hartford, CT 06103

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-226/SecondFD/paj/1/15/2009