FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Jamar Boyd, | |||
| Complainant | |||
| against | Docket #FIC 2008-386 | ||
|
James M. Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven, |
|||
| Respondents | May 13, 2009 | ||
The above-captioned matter was heard as a contested case on January 9 and February 3, 2009, 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. By letter dated June 3, 2008 and filed on June 5, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly comply with his records requests. The complainant requested the imposition of a civil penalty against the respondents.
3. It is found that by certified letter, return receipt requested, dated August 5, 2007, the complainant made a request to the respondents for a copy of the “taped statement from Thomas Lopez [taken] by Det. Vasquez on October 26, 2004 in its entirety.”
4. It is found that by certified letter, return receipt requested, dated August 5, 2007, the complainant resubmitted a request, which he originally made by letter dated February 7, 2007, for a copy of the “one page police report of Officer Rivera dated January 12, 2005” and “a complete copy of Detective Dadio’s notes from interviewing Zulma Munez on October 21, 2004” to the respondents.
5. It is found that by letter dated January 31, 2008, the complainant received a form letter from the respondent department captioned “In Response To Your Information or Record Request” which includes a hand written statement that there is “no statement on file.”
6. It is found that by letter dated May 12, 2008, the complainant repeated his request to the respondents for a copy of the “taped statement from Thomas Lopez taken by Det. Vasquez on October 26, 2004. (A transcript of the tape will be fine) In its entirety.”
7. It is found that by letter dated June 9, 2008, the complainant received a form letter from the respondent department captioned “In Response To Your Information or Record Request” which includes a hand written statement that “No interview w/ Thomas Lopez on File” with the name “Melissa” handwritten on the line for records clerk.
8. It is found that by letter dated November 5, 2008, the complainant received a form letter with a handwritten note stating “interview statement of Zulma Munez was not taken by the agency.”
9. It is found that notwithstanding the correspondence received by the complainant described in paragraphs 5, 7 and 8, above, the complainant is in the possession of two documents that suggested otherwise:
a. A one page document dated November 9, 2004 that states that a Detective Martin Dadio received “a phone call from a Zulma Munez…”
b. A one page document dated February 1, 2005 that “at 6:54 p.m., Detective Vazquez took a taped statement from Thomas Lopes . . .”
10. It is found that the respondents’ records division is responsible for responding to all records and information requests to the respondent department.
11. It is found that the head of the records division is Lieutenant Roger Young, who became aware of the complainant’s request described in paragraph 4, above, only after receiving notice from this Commission of the complaint in this matter.
12. It is found that Lieutenant Young, thereafter, personally conducted the search for the requested records which included searching the records of the records division, the detective bureau of the respondent department and making an inquiry to the State’s Attorney’s office.
13. It is found that the one page document dated November 9, 2004, described in paragraph 9a, above, is captioned “New Haven Department of Police Service Case Incident Report (Narrative)” and includes the name, date of birth and address of a Zulma Munez.
14. It is found that the document described in paragraph 13, above, is the only record maintained by the respondents that is responsive to the complainant’s request described in paragraph 4, above.
15. It is found that it was only at the hearing on this matter that Lieutenant Young became aware of the complainant’s requests for the Lopez tape described in paragraphs 3 and 6, above, and therefore, the hearing was continued to provide Lieutenant Young an opportunity to conduct a search for such records.
16. It is found that, between the January 9, 2009 hearing and the February 3, 2009 continued hearing, Lieutenant Young conducted a similar search as that described in paragraph 12, above, for the taped interview of Thomas Lopez and located a transcription of the taped interview in the investigative services unit of the respondent department.
17. Section 1-200(5), G.S., provides in relevant part that:
“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.
18. 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 . . . receive a copy of such records in accordance with section 1-212.
19. 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 . . . .”
20. It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.
21. It is found that the respondents are willing to provide the complainant with a copy of the transcription described in paragraph 16, above, free of charge.
22. With respect to the complainant’s allegation that the respondents failed to comply promptly with his request, it is found that while Lieutenant Young may not have been personally aware of the complainant’s request, there is no contention by the respondents that they did not receive the letters of request described in paragraphs 3, 4, and 6, above.
23. It is found that nearly 5 months elapsed after the complainant’s August 5, 2007 letters of request before he received any response; nearly a month elapsed after the complainant’s May 12, 2008 letter before he received any response; and another five months elapsed from that point to receive the November response.
24. Moreover, it is found that, had it not been for the complainant’s knowledge and persistence, the transcription of the interview with Thomas Lopez would not have been located and made available to him.
25. At the hearings on this matter, the respondents explained that the records division is the division that responds to all records and information requests for the respondent department, which requests are in the hundreds during any given week. The respondents also explained that the records division was experiencing staffing shortages over the past several years which staffing shortage caused the respondents to respond to many requests later than might have been expected. The respondents further explained that even with the increased staff that it now enjoys, there is still a lag in its response to requests because the new staff is still acquiring the experience necessary to respond to requests accurately and in a manner that might be considered timely.
26. Nonetheless, it is concluded that the respondents failed to comply promptly within the meaning of §§1-210(a) and 1-212(a), G.S. It is further concluded that the respondents thereby violated the promptness provisions of §§1-210(a) and 1-212(a), G.S.
27. It is also found, however, that in light of the staffing issues described in paragraph 25, above, and the efforts of Lieutenant Young, the Commission declines to consider the imposition of a civil penalty in this case.
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 provisions of §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May l3, 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:
James M. Lewis, Chief, Police
Department, City of New Haven;
and Police Department, City of
New Haven
C/o Kathleen M. Foster, Esq.
Office of Corporation Counsel
City of New Haven
165 Church Street
New Haven, CT 06510
____________________________
S. Wilson
Acting Clerk of the Commission
FIC/2008-386FD/sw/5/18/2009