FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 11, 2008, and February 24, 2009, at which times the complainant and the respondents appeared, 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, 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 March 4, 2008, the complainant made a request to the respondents for a copy of the following records related to Case No. 01-33684:

 

“Police Dispatcher Report—Initial Police Report/Supplemental Reports/State Police Report Major Crime Scene Supervisor Report—Crime Scene Securing Officer Report—Crime Scene Witnesses/Interviews Report—Crime Scene Vehicle Convass [sic] Report—Forensic Science Processed Evidence Report—Any Forensic Science Lab Request Submitted with Result from Analysis testing—Evidence Collection Report—Original typed /Handwritten Statements along with all related Records on this case.”

 

3.  It is found that, by letter dated March 11, 2008, the complainant made a request to the respondents for a copy of the following records related to Case No. 01-33684:

 

“Police Dispatch Written Log Report—Initial Police Report—All Supplemental Police Reports—Shift Commander Written Report—Crime Scene Supervisor Written Report—Crime Scene Securing Area rom [sic] Contaminating it—Crime Scene Witness/Interviews Log Report—Crime Scene Technician Processing the Evidence—Evidence Processed Arrival Log Report—Evidence Collection Forms—Evidence Handling and Processed with Tag Number and Property/Evidence Receipts forms along when evidence get submitted [sic] and Receiving Evidence Officer Duties—Unusual Occurrence Written Report—Crime Scene Convass [sic] Report—Crime Scene Vehicle Convass [sic] Report—Statement typed of Handwritten done by Policy/Procedure—Notary List Authorized per Protocol and Pursuant to C.G.S.  Evidence Request for Forensic Analysis Testing and Results per Protocol, Policy/Procedure—Evidence Transfer to Forensic Laboratory Log Report per protocol, Policy/Procedure along with forms submitted—Accuser Interview/Interrogation Policy/Procedure.”

 

4.  It is found that, by letter dated March 28, 2008, the respondents notified Joan Ellis, FOI Liaison Officer, Department of Correction (“DOC”), of the requests described in paragraphs 2 and 3, above, in accordance with §1-210(c), G.S.[1]

 

5.  It is found that, by letter dated April 2, 2008, the respondents hand-delivered to Ms. Ellis, copies of certain records, relating to Case No. 01-33684, some of which were redacted by the respondents pursuant to §54-142a(c), G.S.  It is also found that certain other records relating to Case. No. 01-33684 were withheld from disclosure pursuant to §1-210(b)(3)(b), G.S.

 

6.  It is found that, by letter dated April 2, 2008, Ms. Ellis informed the respondents that the records described in paragraph 5, above, do not “fall within the parameters of C.G. §1-210(b)(18) and [have] been released to the requester.”

 

7.  It is found that, by letter dated April 8, 2008, the complainant informed the respondents that “[y]our agency did not comply entirely with my request made under the FOIA and state agency regulations.  I need arrest warrant, including all annexed supporting affidavit/statements for the probable cause determination for the arrest warrant.  Also, the copies of all annexed supporting affidavit/statements for the determination of probable cause for the search warrant with proper execution return of service.”

 

8.  It is found that, by letter dated April 18, 2008, the respondents denied the complainant’s request for the warrants, described in paragraph 7, above, stating that such warrants “were sealed by the judge who heard the case”; that they “cannot be unsealed without prior approval of that judge” and that therefore, “they cannot be released.”

 

9.  By letter dated April 24, 2008, and received by the Commission on May 6, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the requests described in paragraphs 2 and 3, and 7, above.

 

            10.  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.

11.  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. 

 

            12.  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.” 

 

13.  It is found that the records described in paragraphs 2, 3, and 7 above, 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. 

 

14.  On January 30, 2009, the hearing officer in this matter issued an order requiring the respondents to submit the records being claimed exempt to the Commission for an in camera inspection (hereinafter “in camera records”).   Such records, which have been designated pages IC 2008-318-01 through IC 2008-318-47, were submitted to the Commission for in camera review on February 24, 2009, and it is found that such records are responsive to the requests described in paragraphs 2 and 3, above.   

 

15.  With respect to the §1-210(b)(3)(B), G.S., claim of exemption, such provision permits the nondisclosure of “[r]ecords 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…”

 

16.  After careful review of the in camera records, it is found that pages IC 2008-318-01 through IC 2008-318-43 are records of a law enforcement agency not otherwise available to the public, compiled in connection with the investigation of crime.  It is also found that such records are signed statements of witnesses, within the meaning of §1-210(b)(3)(B), G.S., and that disclosure of such records would not be in the public interest.

 

17.  Accordingly, it is concluded that pages IC 2008-318-01 through IC 2008-318-43 are exempt from mandatory disclosure, and that the respondents did not violate the FOI Act by denying the complainant copies of such records.

 

18.  With respect to the §54-142a(c), G.S., claim of exemption, such provision states, in relevant part, that “[w]henever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records…pertaining to such charge shall be erased….”

 

19.  Section 54-142a(e), G.S., further provides, in relevant part, that “any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record…information pertaining to any charge erased under any provision of this section…”

 

20.  After careful review of the in camera records, it is found that the information redacted in pages IC 2008-318-44 through IC 2008-318-47 of such records, is information pertaining to charges in a criminal case that have been nolled, and that, at the time of the request for such records, at least 13 months had elapsed since such nolle.

 

21.  Accordingly, it is concluded that the information redacted in pages IC 2008-318-44 through IC 2008-318-47 is exempt from mandatory disclosure, and that the respondents did not violate the FOI Act by withholding such information from the complainant.

 

22.  With respect to the warrants described in paragraph 7, above, at the request of the hearing officer, during the first hearing in this matter, the respondents contacted the New Haven State’s Attorney’s office and determined, and it is found that, such warrants are no longer sealed.  

 

23.  It is found that the respondents’ file relating to Case No. 01-33684 contained four sealed envelopes marked as follows:  (a) “Sealed Search Warrant for Arrestee Eddie Schmidt”; (b) “Sealed Search Warrant for Arrestee Kenyon Joseph”; (c) “Sealed Search Warrant for Arrestee Kashon Pearson”; and (d) Court Erasure on Eddie Schmidt only.”   It is further found that, after determining such warrants were no longer sealed by the court, the respondents unsealed all such envelopes, copied all of the records contained therein, and forwarded such copies, without redactions, to Ms. Ellis at the DOC, in accordance with §1-210(c), G. S.[2]

 

24.  It is found that the records contained in envelopes (a), (b), and (c), described in paragraph 23, above, are responsive to the request for search warrants, described in paragraph 7, above.  It is found, however, that the respondents do not retain any arrest warrants in their file relating to Case No. 01-33684.  

 

25.  It is found that, on January 21, 2009, the complainant received the records contained in envelopes (a), (b) and (c), described in paragraph 23, above, although some of the information in such records was redacted.[3]

 

26.  Although the respondents are to be commended for their diligent efforts to provide the complainant with copies of records responsive to the requests described in paragraphs 2 and 3, above, it is found that the respondents failed to make any effort to comply with the request described in paragraph 7, above, until eight months later, and only at the request of the hearing officer during the hearing.  Thus, it is found that the complainant did not receive, promptly, copies of the records described in paragraph 7 and 23, above, as required by the FOI Act.

 

27.  Accordingly, it is concluded that the respondents violated the promptness provision 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.  Henceforth, the respondents shall strictly comply with the promptness requirements contained in §§1-210(a) and 1-212(a), G.S.

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 8, 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:

 

Eddie Schmidt #289675

MacDougall-Walker C I

1153 East Street, South

Suffield, CT 06080

 

Chief, Police Department,

City of Meriden; Internal Affairs Unit,

Police Department, City of Meriden; and

Police Department, City of Meriden

C/o John H. Gorman, Esq.

Office of Corporation Counsel

City of Meriden

142 East Main Street, Suite 240

Meriden, CT 06450

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-318FD/sw/4/16/2009