FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 29, 2008, October 23, 2008, and December 23, 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, 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.).

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 letter dated January 16, 2008, the complainant made a request to the respondents for a copy of the following records:  “each and all items [of] inventory evidence in the case of Jose A. Ayuso, dated June 5, 2003. . . [criminal case number] 03-25694.”  The complainant further stated that he was particularly interested in receiving copies of the following:

 

a.       All photographs of the investigation numbered 1 through 195;

b.      All diagrams produced during and subsequent to the investigation;

c.       Any and all forensic science records, including laboratory reports and results;

d.      Dispatcher transcripts or tapes of recorded 911 calls;

e.       All police officers’ reports, affidavits, and other notes;

f.       Any records of misconduct concerning the following officers: John Koch, William Siemionko, Tishay Johnson, Victor Otero, Gerardo Pleasant, Edward Jachimocitz, Timothy Shaw, and Gustavo Rodriguez; and

g.      Inter-departmental memoranda or notes between any of the following agencies:  Hartford Police Department, the State Police Department, the Prosecutor’s Office, the Public Defender’s Office, the FBI and the ATF. 

 

3.      By letter of complaint dated January 28, 2008, and filed January 30, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with his request for records.  The complainant also requested the imposition of civil penalties against the respondents.

 

4.      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.

 

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 . . . (3) 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 that the respondents maintain the records described in paragraph 2, above, such records are “public records” and must be disclosed promptly in accordance with §§1-210(a) and 1-212(a), unless they are exempt from disclosure. 

 

8.      At the July 29, 2008 hearing, the complainant testified that he did receive a package of records responsive to his request from the respondents.  However, the complainant contended that the package did not contain photographs numbered 196 through 239.  He also contended that certain police reports were missing pages and that he did not receive the “diagrams” that were used during his criminal case, identified in paragraph 2.b, above. 

 

9.      The complainant also requested that the hearing officer conduct an in camera inspection of the personnel files of the police officers identified in paragraph 2.f., above, so that the Commission could independently determine whether the respondents had produced all of the requested disciplinary records. 

 

10.  In response to the complainant’s request, the respondents stated their position that none of the records requested by the complainant were exempt from disclosure and that all records in the respondents’ possession had been provided to the complainant.  With respect to the photographs that the complainant alleged were missing from the records he received, the respondents pointed out that the complainant had only requested photographs numbered 1 through 195.  The respondents agreed to provide any pages that were missing from any of the reports previously provided to the complainant. 

 

11.  It was found that, because the respondents were not claiming that any of the requested records were exempt from disclosure, an in camera inspection of the personnel files was not necessary. 

 

12.  At the conclusion of the July 29, 2008, the respondents agreed to provide the complainant with an affidavit addressing every record requested by the complainant in the January 16, 2008 request, re-send the records in their possession to the complainant, and identify in the affidavit those records that they did not have in their possession. 

 

13.  At the October 23, 2008 hearing, the respondents represented that they had sent the complainant the affidavit, as well as re-sent to the complainant all of the records that were responsive to the January 16, 2008 request. 

 

14.  The respondents also provided the Commission with a five page, detailed index of the records that they had provided to the complainant.  The respondents’ index broke down the production of records into 111 categories, described the nature of the records, stated the number of pages in each category and indicated the bate-stamp number for each record.  The records were bate-stamped from number 1 through number 241. 

 

15.  Based on the evidence presented at the October 23, 2008 hearing, it is found that the respondents provided the complainant with a total of 241 pages of records responsive to his request.  It is further found that the respondents provided these records to the complainant on two separate occasions.  It is further found that the respondents waived the fee for these records.

 

16.  It is further found, that while it initially took the respondents a considerable amount of time to provide the records to the complainant, the request in this case sought a voluminous amount of records, which required the respondents to search for records in different locations and review a multiple of files.  It is further found that, once the responsive records were compiled, the respondents made a considerable effort to present the records to the complainant in an organized and comprehensive manner, including providing an index that facilitated understanding the nature and content of the records. 

 

17.  Therefore, it is concluded that the respondents’ response to the complainant’s request for records was “prompt” within the meaning of §§1-210(a) and 1-212(a), G.S.

 

18.  At the October 23, 2008 hearing, the complainant contended that certain records were missing from the second package of records that he received from the respondents.  Because the complainant did not have the second package of records with him at the start of the hearing, a recess was called so that the complainant could retrieve the records.  When the hearing reconvened, the complainant contended that the first 12 pages of records, which corresponded to the index identified in paragraph 14, above, were missing from the second package.  Later, the complainant contended that pages 1 through 27 were missing from the second package.  Finally, the complainant contended that pages 1 through 11 and pages 13 through 26 were missing from the second package.  The complainant further contended that other records should exist because these records were used at his criminal trial.  Specifically, the complainant contended that certain diagrams, 911 tapes and the disciplinary records of Officer Timothy Shaw and Officer Gerardo Pleasant should have been provided to him. 

 

19.  In response to the complainant’s numerous contentions, the respondents agreed that they would contact the Office of the State’s Attorney, examine all of the documents in the State’s Attorney’s possession, and retrieve a copy of any document they discovered that was responsive to the complainant’s request. 

 

20.  At the close of the October 23, 2008 hearing, the hearing officer ordered the respondents to submit the personnel files of the police officers identified in paragraph 2.f., above, to the Commission for an in camera inspection. 

 

21.  At the December 23, 2008 hearing, the respondents represented that they went to the State’s Attorney’s Office and reviewed all of the records relevant to the complainant’s criminal case identified in paragraph 2, above.  The respondents further represented that the only records they found that had not already been provided to the complainant were the 911 tapes and the dispatcher tapes. 

 

22.  It is further found that the respondents arrived at the December 23, 2008 hearing with copies of the 911 tapes, the dispatcher tapes, and pages 1 through 11 and 13 through 26 that the complainant claimed were missing from the second package of records, referred to in paragraph  18, above.  It is found that the respondents also brought with them a copy of the disciplinary records of Officer Shaw, which they had previously sent to the complainant, as well as a copy of a document entitled “Hartford Police Department, Policy and Procedure, General Order,” concerning the maintenance and control of public safety public dispatch center master tapes, and a document entitled “Scheduled M2-Personnel/Labor Relations Records,” concerning the retention schedule for personnel records. 

 

23.  It is further found that the respondents arrived at the hearing with a prepaid Federal Express overnight, envelope addressed to the complainant. The respondents represented that it was their intention to immediately send the records referred to in paragraph 22, above, to the complainant, free of charge. 

 

24.  The respondents also submitted an affidavit identifying the records that were not provided to the complainant and attesting to facts concerning why the records were not provided to the complainant. 

 

25.  In the affidavit, the respondents averred that disciplinary records concerning Officer Pleasant were not previously provided to the complainant due to an oversight.  The respondents represented that it was their intention to send these records to the complainant along with the records identified in paragraph 22, above.  It is found that the respondents arrived at the December 23, 2008 hearing with copies of these records.

 

26.  In the affidavit, the respondents further averred that any other record that was not being provided to the complainant at this time did not exist.

 

27.  It found that the respondents’ failure to provide Officer Pleasant’s disciplinary records to the complainant was unintentional and due, in large part, to the large number of  records requested by and produced to the complainant, and difficulty the complainant had organizing the records he received from the respondents in advance of the hearings. 

 

28.  At the close of the December 23, 2008 hearing, the respondents submitted copies of the seven officers’ personnel files to the Commission for an in camera inspection (hereinafter the “in camera records”).  Such in camera records will be identified as IC-2008-064-1 through IC-2008-064-1198. 

 

29.  The in camera records consist of the personnel files of the police officers identified in paragraph 2.f., above, with the exception of the personnel file of Edward Jachimocitz.

 

30.  It is found that Mr. Jachimocitz is not an employee of the Hartford Police Department, and accordingly the respondents do not have Mr. Jachimocitz’s personnel file in their possession.

 

31.  After a careful review of the in camera records, it is found that there are no disciplinary records in the personnel files of Tishay Johnson, John Koch, William Siemionko, Gustavo Rodriguez, or Victor Otero. 

 

32.  It is further found that the disciplinary records in the personnel files of the Timothy Shaw and Gerardo Pleasant have already been provided to the complainant.

 

33.  Accordingly, it is concluded that the respondents did not violate the FOI Act.

 

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

 

1. The complaint is dismissed.

 

                                   

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 2009.

 

 

____________________________

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:

 

Jose A. Ayuso, #156239

MacDougall-Walker C I

1153 East Street, South

Suffield, CT 06080

 

Daryl K. Roberts, Chief, Police Department,

City of Hartford; and Police Department,

City of Hartford

c/o Andrew R. Crumbie, Esq.

Crumbie Law Group

1 Linden Place

Suite 106

Hartford, CT  06106

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-064FD/sw/1/26/2009