FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 3, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the matter was consolidated with Docket #FIC 2008-532; Jeffrey Cohen and The Hartford Courant v. Eddie A. Perez, Mayor, City of Hartford; John Rose, Jr., Corporation Counsel, City of Hartford; and City of Hartford.  At the hearing, the Division of Criminal Justice (the “Division”) moved to intervene as a party respondent.  The respondents did not object to the Division’s motion.  The complainants did not object to the Division being granted intervenor status, but did object to the Division being granted party status.  Pursuant to §1-21j-31(a) of the Regulations of Connecticut State Agencies, the Division was granted intervenor status. 

 

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 July 8, 2008, the complainants made a request to the respondents for copies of the following records:

 

a.       All requests for information or subpoenas for information/records sent to or made of Diggs Construction by law enforcement agencies on or after January 1, 2006 to the present;

b.      All subpoenas for Diggs Construction employees or officials to appear made of the Diggs Construction by law enforcement agencies on or after January 1, 2006 to the present; and

c.       All documents including all e-mails and other electronic documents, turned over to such law enforcement agencies by Diggs Construction from January 1, 2006 to the present in response to such subpoenas or requests for information. 

 

3.      It is found that, by letter dated July 16, 2008, the respondents acknowledged the complainants’ request for records, and stated that “to the extent that [the complainants] seek the production of any part of the record of an ongoing grand jury investigation, including subpoenas issued by the grand jury, the City of Hartford denies your request. . . .”   The respondents further stated that, with respect to the complainants’ request for records other than those records related to an ongoing grand jury investigation, the City had already produced all responsive information to The Harford Courant.  The respondents further stated that they had inquired with Diggs Construction and had been informed that, other than records relating to an ongoing grand jury investigation, Diggs Construction (“Diggs”) had no records responsive to the complainants’ request. 

 

4.      By letter dated and filed August 13, 2008, the complainants appealed to the Commission, alleging that the respondents’ failure to produce the requested records violated the Freedom of Information Act (the “FOI Act”).  The complainants further requested that the Commission issue a civil penalty against the respondents for their failure to comply with the FOI Act. 

 

5.      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.

 

6.      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.

 

7.      Section 1-218, G.S., provides:

 

Each contract in excess of two million five hundred thousand dollars between a public agency and a person for the performance of a governmental function shall (1) provide that the public agency is entitled to receive a copy of records and files related to the performance of the governmental function, and (2) indicate that such records and files are subject to the Freedom of Information Act and may be disclosed by the public agency pursuant to the Freedom of Information Act.  No request to inspect or copy such records or files shall be valid unless the request is made to the public agency in accordance with the Freedom of Information Act.  Any complaint by a person who is denied the right to inspect or copy such records or files shall be brought to the Freedom of Information Commission in accordance with the provisions of sections 1-205 and 1-206.

 

8.      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.”

 

9.      It is found that to the extent the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

10.  It is found that, upon receipt of the request described in paragraph 2, above, the respondents conducted a search for the requested records.  Based on the testimony of respondent Rose, it is found the respondents’ search for records included a review of the files in the possession of the City of Hartford.  It is also found that the respondents’ search included contacting Diggs to determine what documents were in its possession.  It is further found that, other than the grand jury subpoenas served on city employees and Diggs employees, and the documents produced to the grand juror in response to the grand jury subpoenas, the City and Diggs have disclosed all responsive records. 

 

11.  It is therefore concluded that the only records at issue in this case are grand jury subpoenas served on Diggs employees and the records produced by said employees in response to the grand jury subpoenas. 

 

12.  It is found that the City, the Hartford School Building Committee (“HSBC”) and Diggs entered into a contract in excess of two million five hundred thousand dollars, whereby Diggs was to perform “certain program management services on behalf of the City and HSBC.”  It is further found that all parties to the contract acknowledged and agreed that the records and files related to the performance of said contract would be subject to the provisions of the FOI Act.

 

13.  Pursuant to the provisions of §1-218, G.S., it is concluded that the requested records are subject to the disclosure provisions of the FOI Act, and are required to be disclosed by the respondents unless otherwise exempt from disclosure. 

 

14.  With regard to the records described in paragraph 11, above, Attorney Rose testified that he instructed his counsel to contact the Chief State’s Attorney, Kevin T. Kane, and inquire as to whether the respondents could disclose these records to the complainants. Attorney Rose further testified that his counsel informed him that Chief State’s Attorney Kane advised that disclosure of any and all subpoenas issued by the grand jury, as well as any documents produced in response to said subpoenas, is prohibited by law and would be prejudicial to the ongoing grand jury investigation that may be in progress.  Attorney Rose further testified that, based on the advice of the Chief State’s Attorney concerning disclosure, and his own reading of the grand jury statutes, he denied the complainants’ request with regard to the records described in paragraph 10, above. 

 

15.  The respondents claim that the records are exempt from disclosure pursuant to Connecticut’s Grand Jury Statutes, §54-47a, et seq., G.S.  The respondents claim that because there are provisions in the Grand Jury Statutes that set forth  procedures which are followed when a request for information is made to the grand juror, such language should be construed as an exemption to disclosure pursuant to the “[e]xcept as otherwise provided by any. . . state statute” language of §1-210(a), G.S.  The respondents further claim that it is the practice of the judges sitting as investigatory grand jurors to advise the witnesses who appear pursuant to a subpoena that their appearance and testimony before the grand jury will be confidential unless and until it is needed in the prosecution of a criminal case. 

 

16.  Section §54-47e, G.S., provides as follows:

 

Any order authorizing the investigation into the commission of a crime or crimes and any application filed with the panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed.  The panel shall submit to the Chief Court Administrator a summary of the scope of the investigation, any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard and the finding and record of the investigation are to be filed.  Such summary shall be public unless the panel determines, by majority vote, that such summary be sealed for purposes of (1) ensuring the public safety of any individual, (2) ensuring that the investigation would not be adversely affected or (3) complying with any other provision of the general statutes or rules of court which prohibit the disclosure of such information.  Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest. 

 

17.    Section 54-47g, G.S., provides in relevant part that:

 

 (a) . . . . Except as otherwise provided in this section, any part of the record of the investigation not disclosed with the finding pursuant to subsection (b) shall be sealed, provided any person may file an application with the panel for disclosure of any such part of the record.  Upon receipt of such application, the panel shall, after notice, hold a hearing and the panel, by a majority vote, may disclose any such part of the record when such disclosure is deemed by the panel to be in the public interest, except that no part of the record shall be disclosed which contains allegations of the commission of crime by an individual if the investigatory grand jury failed to find probable cause that such individual committed such crime unless such individual requests the release of such part of the record. . . .

 

(b)  The finding of the investigation shall be open to public inspection and copying at the court where it has been filed seven calendar days after it has been filed, unless within that period the Chief State’s Attorney or a state’s attorney with whom the finding was filed files a motion with the investigatory grand jury requesting that a part or all of such finding not be so disclosed. . . .

 

(c) Within fifteen calendar days of the filing of such motion, the investigatory grand jury shall conduct a hearing. . . . Within five calendar days of the conclusion of the hearing, the investigatory grand jury shall render its decision. . . .  It shall deny any such motion unless it makes specific findings of fact on the record that there is a substantial probability that one of the following interests will be prejudiced by publicity that nondisclosure would prevent, and that reasonable alternatives to nondisclosure cannot adequately protect that interest:  (1) The right of a person to a fair trial; (2) the prevention of potential defendants from fleeing; (3) the prevention of subornation of perjury or tampering with witnesses; or (4) the protection of the lives and reputation of innocent persons which would be significantly damaged by the release of uncorroborated information.  Any order of nondisclosure shall be drawn to protect the interest so found. 

 

                        . . . .

 

(f) Notwithstanding the existence of an order of nondisclosure under this section, any witness may apply in writing to the presiding judge of the criminal session of the court of the judicial district wherein the record of investigation has been filed, or his designee, for access to and a copy of the record of his own testimony.  Any witness shall be allowed access, at all reasonable times, to the record of his own testimony and be allowed to obtain a copy of such record unless said judge or his designee finds after a hearing and for good cause shown that it is not in the best interest of justice to allow the witness to have access to and a copy of the record of his testimony.

 

(g) Notwithstanding the existence of an order of nondisclosure under this section, the presiding judge of the criminal session of the court. . . shall grant any written request of a person accused of a crime as a result of the investigation to have access, at all reasonable times, to the record of his own testimony and to obtain a copy of such record. 

 

18.  It is found that the statutory authority cited in paragraphs 16 and 17, above, sets forth a variety of procedures that the grand jury follows when responding to requests made for information in its possession.  It is found that these statutes do not, however, provide the clear, affirmative statement of confidentially required to shield the records at issue from public disclosure under the FOI Act.  See, e.g., Chief of Police v. FOIC, 252 Conn. 377, 399 (stating that the “except as otherwise provided by any federal law or state statute” language of §1-210(a) of the FOI Act was “intended to refer to other federal and state laws that by their terms shield specific information from disclosure”); cf. Comm’r, Dep’t of Public Safety v. FOIC, 204 Conn. 609, 621 (1987) (holding statutory language at issue (“the state-wide organized crime investigation task force may disseminate such information by such means and to such extent as it deems appropriate”) evidenced a clear and unambiguous legislative intent that the requested records would not be subject to the general disclosure requirements of the FOI Act).

 

19.  Section 1-2z, G.S., the “Plain meaning rule,” provides:

 

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. 

 

20.  After examining the text of statutory authority cited in paragraphs 16 and 17, above, it is concluded that the meaning of the statutes is plain and unambiguous, and that the procedures set forth in the Grand Jury Statutes were meant to apply to requests for information made to the grand jury.  It is further concluded that had the legislature intended, by enacting the Grand Jury Statutes, to conceal the records at issue in this case, wherever located, it would have done so explicitly.  See, e.g., §17a-101k(a), G.S. (“The Commissioner of Children and Families shall maintain a registry of the reports [of the commissioner’s findings of abuse or neglect of children]. . . . The information contained in the reports and any other information relative to child abuse, wherever located, shall be confidential. . . .”) (Emphasis supplied). 

 

21.  Accordingly, it is concluded that because the requests for records in this case were directed to the respondent Mayor of Hartford and the respondent City of Hartford, and not to the grand jury, the statutory procedures set forth in paragraphs 16 and 17, above, are not implicated in the determination of whether the records in this case are exempt from disclosure. 

 

22.  It is further found that the assurances of confidentiality provided to potential grand jury witnesses, as described in paragraph 15, above, are not statutory in nature and therefore do not fall within the “except as otherwise provided by any . . . state statute” language of §1-210(a), G.S.

 

23.  It is further found that there was no evidence produced at the hearing to show that the grand jury subpoenas themselves contain a prohibition directing the witnesses who are summoned by the grand jury not to disclose the fact they have been summoned, or any other prohibition against making duplicates of the records that the witnesses have provided to the grand jury.  In fact, Attorney Rose testified that he believed that the subpoenas contained no such prohibition. 

 

24.  It is further found that no evidence was produced at the hearing to show that disclosure of the records described in paragraph 11, above, would in any way prejudice any proceedings being conducted by the grand jury. 

 

25.  It is therefore concluded that the records described in paragraph 11, above, are not exempt from disclosure and that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by denying the complainants’ request for a copy of these records. 

 

26.  Upon the conclusion of the testimony at the contested hearing, the complainants withdrew their request that the Commission consider the imposition of a civil penalty against the respondents.

 

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 complainants with a copy of the records described in paragraph 11, above, free of charge. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 11, 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:

 

Jeffrey Cohen and

The Hartford Courant

c/o Paul Guggina, Esq.

Hinckley Allen & Snyder, LLP

CityPlace, 35^th Floor

185 Asylum Street

Hartford, CT 06103

 

Eddie A. Perez, Mayor,

City of Hartford; and

City of Hartford

c/o John Rose, Jr., Esq.

Corporation Counsel

550 Main Street

Hartford, CT 06103

And

Richard F. Wareing, Esq.

Pepe & Hazard LLP

225 Asylum Street

Hartford, CT 06103

 

State of Connecticut,

Division of Criminal Justice

c/o Judith Rossi, Esq. and

Kevin T. Kane, Esq.

Office of the Chief State’s Attorney

300 Corporate Place

Rocky Hill, CT 06067

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2008-531FD/paj/3/16/2009