FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 2, 2009, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint.

 

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)(A), G.S.

 

2.  It is found that by letters dated June 18, 2008, June 23, 2008 and September 5, 2008,  the complainant Jon Papaioannou made requests to the respondents for copies of “any and all information, complaints, pictures (actual color photos not photocopies) that pertain to myself my wife Marie Papaioannou and our canines residing at 272 Oak Hill Drive, Southbury, CT 06488… includ[ing] a complaint that I called in July 2007 on or about the 25^th” (the “requested records”).

 

3.  By letter dated October 4, 2008 and filed with the Commission on October 9, 2008, the complainants appealed to the Commission, alleging that the respondents’ failure to provide the requested records violated the Freedom of Information Act (“FOIA”). The complainants also requested that civil penalties be assessed against the respondents.

 

4.  Section 1-200(5), G.S., states:

 

“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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

6.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

7.  It is found that on June 21, 2008, the respondents provided the complainants with the following records: a) Animal Control Report 74C-08, including related witness statements and photocopies of five photographs; b) Animal Control Report 104R-07; and c) Canine Report 51-0-07, including two photographs.

 

8.  It is found that by letter dated June 26, 2008 the respondents acknowledged the complainants’ request, stating that a “good faith effort to locate the information related to the subject matter of your inquiry will be made.”

 

9.  It is also found that on December 12, 2008, the respondents provided the complainants with the following additional records: a) Animal Control Report 21F-08 dated September 8, 2008; b) Southbury Animal Control Dispatch Report dated June 17, 2008; and c) Southbury Police Department Incident Report dated June 17, 2008.

 

10.  It is also found that on August 26, 2008, counsel for the respondents forwarded by email eleven photographs to Liberty Mutual Insurance Company, the insurer of the complainants. While the complainants received all of these photographs from their insurer, the respondents did not disclose six of the photographs directly to the complainants.

 

11.  It is found that criminal infraction charges of roaming and nuisance were pending against the complainants from June 17, 2008 until January 5, 2009, when the charges were resolved in favor of the complainants, but with the complainants paying a $75.00 fine. A civil lawsuit against the complainants remained pending on the date of the hearing, as a result of the death of a neighbor’s dog.

 

 12.  It is further found that, at the January 5, 2009 proceedings on the criminal infraction, a new copy of Animal Control Report 74C-08 was disclosed, which included some handwritten notes that tended to exclude the possibility that other dogs in the neighborhood caused the death of the neighbor’s dog. 

     

13.  Finally, it is found that the requests of the complainants were the first FOIA requests for records received by the respondent Animal Control Officer. It is found that the pending infraction action, combined with inexperience with the FOIA, caused the respondents to be cautious concerning the disclosure of records to the complainants.       

 

14.  At the hearing, the counsel for the respondents underscored that infraction charges were pending at all times relevant to the FOIA complaint.  

 

15.  Section 1-210(b)(3), G.S., in relevant part 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action….

 

16.  The respondents’ burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records were compiled in connection with the detection or investigation of crime. 

 

17.  It is concluded that the records were compiled in connection with the detection or investigation of an infraction, and not in connection with the detection or investigation of crime.

 

18.  It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide the following records promptly:

 

a)      the six photographs described in paragraph 10, above;

 

b)     the records described in paragraph 9, above; and

 

c)      the handwritten notes described in paragraph 12, above.

 

19.  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.

 

20.  Based on the findings in paragraph 13, the Commission finds that the respondents’ failure to comply with the FOIA was not without reasonable grounds, and therefore that a civil penalty is not warranted.

 

           

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

 

1.  Henceforth, the respondents shall provide all non-exempt requested records promptly. 

 

2.  If the respondent Animal Control Officer receives FOIA requests in the future, she shall consult with the Public Education Officer at the Commission in conjunction with her response to the request.

 

 

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

Jon Papaioannou and Marie Papaioannou

272 Oak Hill Drive

Southbury, CT 06488

           

Marilyn Muratori, Animal Control Officer,

Town of Southbury; and Town of Southbury

c/o Robert Nastri, Jr., Esq. and

Jeffrey J. Tinley, Esq.

Tinley, Nastri, Renehan & Dost, LLP

60 North Main Street, 2nd Floor

Waterbury, CT 06702

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-663FD/paj/4/16/2009