FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 30 and December 8, 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.).  This matter was consolidated for hearing with docket #FIC 2008-328, Bryan Jordan v. James M. Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven; and docket #FIC 2008-518, Bryan Jordan v. James Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven.

 

            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 of complaint filed September 29, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for a copy of the records of the internal investigation of Detective Clarence Willoughby.     

 

            3.  It is found that by letter dated September 22, 2008 the complainant requested a copy of the entire internal affairs case file on Detective Clarence Willoughby, any file detailing any and all complaints filed against Detective Willoughby, and all disciplinary action taken by the New Haven Police Department against Detective Willoughby, and any and all investigative reports done on any homicide cases, relating to the internal investigation of Detective Willoughby. 

 

4.  It is found that the respondents did not provide the requested records. 

 

5.  It is found that the respondents opened two investigation report files concerning Detective Willoughby. 

 

6.  It is found that one investigation file was initiated by a civilian complaint, designated as 041-05-C, and consists of four pages.  This file was submitted to the Commission for an in camera inspection.

 

7.  It is found that the second investigation file, designated as 164-07-I, regards the use of confidential informant files and funds, and was initiated by then Chief of Police Ortiz in December 2007.  This file was not submitted to the Commission for an in camera inspection.[1]

 

8.  It is found that file number 164-07-I began as an internal investigation of a 2006 homicide investigated by Detective Willoughby, because the New Haven State’s Attorney became concerned that a confidential informant had been used in the case, but that the use of the informant was not reflected in the paperwork of the homicide file.

 

9.  It is found that internal investigation 164-07-I was conducted in cooperation with the New Haven State’s Attorney’s office.

 

10.  It is found that, during the course of the internal investigation, the officer in charge of the investigation determined that there was reason to believe that Detective Willoughby had engaged in criminal conduct through the misuse of informants and informant funds.

 

11.  It is found that the officer in charge then opened a parallel criminal investigation, but not a separate physical file; that is, a single file contains the respondent’s investigation of both internal rules violations and criminal violations. 

 

12.  It is found that the respondents charged Detective Willoughby with rules violations, including conduct unbecoming an officer, lowering morale, and entering into a criminal act, and intended to take action to terminate his employment; but that Detective Willoughby subsequently retired, avoiding the imposition of discipline.

 

13.  It is found that Detective Willoughby was arrested in February of 2008, and that the combined file was turned over to the State’s Attorney’s office for use in prosecuting Detective Willoughby.

 

14.  The complainant seeks the combined file in order to discover whether Detective Willoughby also misused informants in the investigation of the charge of homicide for which the complainant was incarcerated.

 

15.  The respondents are willing to turn over the combined file to the complainant, free of charge, when Detective Willoughby’s trial is concluded, but object to disclosure before that time because of their fear that Detective Willoughby would be “tried in the media” and therefore be unable to get a fair and unbiased trial.

 

16.  The respondents are not concerned with prejudice to the prosecution’s case by disclosure of the combined file, because the file has already been shared in discovery.

 

17.  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.

 

            18.  Section 1-210(a), G.S., provides in relevant part:           

 

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. 

 

19.  Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

20.  It is concluded that the records described in paragraphs 6 and 7, above, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

21.  The respondents maintain that the record of the civilian complaint investigation described in paragraph 6, above, is exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., which provides that disclosure is not required of:

 

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 … the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known….

 

22.  It is found that the record of the civilian complaint investigation described in paragraph 6, above, was not compiled in connection with the detection or investigation of crime, and that the respondents offered no evidence to prove that the civilian complainant’s safety would be endangered or that the civilian complainant would be subject to threat or intimidation if his or her identity were made known.

 

23.  It is therefore concluded that the record of the civilian complaint investigation is not permissibly exempt from disclosure pursuant to §1-210(b)(3)(A), G.S.

 

24.  Without reference to any specific records or how they would be used, the respondents maintain that they cannot disclose the combined internal investigation/criminal investigation file described in paragraph 7, above, because of the potential for tainting the jury with extra-evidential materials.  For example, the respondents fear that information in the investigatory records might not be offered by either the state or the defendant, but, if read by a juror, might affect the result of the jury’s deliberations.  

 

            25.  In essence, the respondent’s argument is that records not offered into evidence must be withheld from the public at large, because disclosure might result in publication that could taint the jury with extra-evidential information.

 

26.  The Commission takes administrative notice of the fact that, in the ordinary course of the criminal trial of Detective Willoughby, the respondents should reasonably expect that the state and the defendant will have conducted individual voir dire of jurors, that the court will have instructed jurors not to read newspapers or any other extra-evidential materials, or to discuss the case with other jurors, and that the court will check on the jurors at the commencement of the presentation of evidence to determine whether they have read or been influenced by any extra-evidential materials.

 

            27.  It is concluded that the court has existing safeguards against the juror misconduct such as reading newspaper reports of, or discussing, extra-evidential records, and that the Commission should not attempt to inject itself into those protective procedures by withholding the requested records from the general public.  Just as the rights of the public to inspect or copy public records are not limited by court discovery rules and orders, the rights of the public should not be limited by the court-ordered restrictions on jurors’ access to records.  See Chief of Police v. FOIC, 252 Conn. 377 (2000).

 

28.  It is concluded that the respondent’s speculation concerning the tainting of the jury with extra-evidential investigatory records fails to satisfy the respondent’s burden of proof under §1-210(b)(3)(C), G.S.  See Docket #FIC 2004-029, Michelle Tuccitto and The New Haven Register v. State of Connecticut, Department of Public Safety, Division of State Police; reversed on other grounds, Department of Public Safety v. Freedom of Information Commission et al., 103 Conn App. 571 (2007).

 

29.  It is therefore concluded that the respondents violated §1-210(a), G.S., by failing to provide the records described in paragraphs 6 and 7, above.

 

           

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 mail or deliver to the complainant, free of charge, at his institutional address, a copy of the records described in paragraphs 6 and 7 of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of June 25, 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:

 

Bryan Jordan, #218810

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT 06470

 

James Lewis, Chief, Police Department,

City of New Haven; and

Police Department, City of New Haven

c/o Kathleen Foster, Esq.

Office of the Corporation Counsel

City of New Haven

165 Church Street

New Haven, CT 06510

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-649FD/paj/6/29/2009