FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

            The above-captioned matter was heard as a contested case on January 26, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Sandra Truex, Keith Truex and Richard Rothholz, the subjects of the requested records described in paragraph 3 of the findings below, were, at their request, and over the objection of the complainant, made intervening parties.  The respondents submitted the contested records, as described in paragraph 11 of the findings, below, for an in camera inspection, and those records have been identified as IC exhibits 2008-522-1 through 2008-522-9.

 

            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 August 7, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying her request for copies of public records involving Sandra Truex, Keith Truex and Richard Rothholz. 

 

3.   It is found that, by letter dated July 3, 2008, the complainant requested access to and copies of “any contact or complaints, correspondence in any form and MSR’s[1] that involve or were initiated by the following: Sandra Truex, Keith Truex or Richard Rothholz acting personally or allegedly on behalf of the Chesterfield Fire Department”. 

 

4.  It is found that, by letter dated July 8, 2008, the respondent mayor denied the complainant’s request, citing §1-210(b)(3), G.S., together with his concern that individuals are entitled to a certain level of protection when seeking assistance concerning potentially criminal activity.

 

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 (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.

 

            7.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

           

            8.  It is found that the requested records relate to a feud between the complainant and the three intervening parties, arising out of the expulsion of the complainant and another individual from the Montville fire department.  Specifically, the three intervening parties allege that they have been subject to retaliation from the complainant and the other individual because of the intervening parties’ role in the expulsion.          

 

            9.  It is found that the respondents conducted a diligent search for the requested records.

 

10.  It is found that the respondents provided all of the requested records except for the records described in paragraph 11, below.

 

11.  The withheld records consist of:

 

IC 2008-523-1:           03/25/2002 MSR;

IC 2008-523-2:           06/17/2006 MSR;

IC 2008-523-3:           05/26/2007 MSR;

IC 2008-523-4:           11/04/2003 MSR;

IC 2008-523-5-6:        09/17/2007 report of ongoing investigation of property damage;

IC 2008-523-7:           05/06/2008 report of an investigation of a motor vehicle incident;

IC 2008-523-8:           06/17/2008 report of an investigation of a motor vehicle incident; and

IC 2008-523-9            08/09/2005 MSR.

 

12.  The respondents contend that IC 208-523-1 through 9 are exempt from disclosure pursuant to §1-210(b)(3), G.S.

 

13.  Section 1-210(b)(3), G.S., provides in relevant part 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 (A) 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action … or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

14.  It is found that IC 2008-523-1 through 9 are records of a law enforcement agency not otherwise available to the public, which records were compiled in connection with the detection or investigation of crime, all within the meaning of §1-210(b)(3)(G), G.S.

 

15.  The respondents contend that IC 2008-523-1 through 4 are records of uncorroborated allegations of criminal activity and are therefore permissibly exempt from disclosure pursuant to §§1-210(b)(3) and 1-216, G.S.

 

16.  Section 1-216, G.S., provides:

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records. 

 

17.  It is also found that disclosing IC 2008-523-1 through 4 would not be in the public interest because it would result in the disclosure of uncorroborated allegations subject to destruction pursuant to §1-216, within the meaning of §1-210(b)(3)(G), G.S.

.

18.  It is therefore concluded that 2008-523-1 through 4 are permissibly exempt from disclosure pursuant to §1-210(b)(3)(G), G.S.

 

19.  The respondents also contend that IC 2008-523-5 and 6 are records of an ongoing criminal investigation, the disclosure of which would be prejudicial to a prospective law enforcement action, and are therefore exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.

 

20.  It is found that IC 2008-523-5 and 6 are records of a criminal investigation of property damage, and the records do not indicate that the investigation has been closed.

 

21.  It is also found, however, that the duration of the investigation was essentially one day, September 17, 2007, and that no further investigation since that date is documented in IC 2008-523-5 and 6.

 

22.  It is therefore concluded that no prospective law enforcement was proven.

 

23.  It is therefore concluded that IC-2008-523-5 and 6 are not permissibly exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.

 

24.  The respondents finally contend that IC 2008-523-5 through  9 are records that reveal the identity of witnesses not otherwise known and that would be subject to threat or intimidation if their identity were made known, and therefore are permissibly exempt from disclosure pursuant to §1-210(b)(3)(A), G.S.

 

25.  Specifically, both the respondents and the three intervening parties fear an escalation of the feud between the intervening parties and the complainant, and of the possibility of threat and intimidation from the complainant.

 

26.  The record in this case demonstrates that the three intervening parties have been subject to various forms of substantial harassment and significant property damage.  The record also supports an inference that the complainant and the other individual expelled from the fire department were the source of at least some, if not all, of that harassment and property damage.

 

27.  It is also found, however, that none of the witnesses identified in IC 2008-523-5 through 9 are not otherwise known, especially to the complainant.

 

28.  It is therefore found that disclosing IC 2008-523-5 through  9 would not result in the disclosure of the identity of witnesses not otherwise known, within the meaning of §1-210(b)(3)(G), G.S.

 

29.  It is therefore concluded that 2008-523-5 through 9 are not permissibly exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., and that the respondents violated the FOI Act by withholding those records from disclosure.

 

 

             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 to the complainant, at the statutory fee, copies of IC 2008-523-5 through 9.

 

2.  With respect to IC 2008-523-1 through 4, the complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 22, 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:

 

Alison Wickson Sylvia

P.O. Box 783

Waterford, CT 06385

 

Mayor, Town of Montville; and

Police Department, Town of Montville

C/o Matthew D. Ritter, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103

 

Intervenors

 

Sandra Truex and

Keith Truex

1046 East Lake Road

Oakdale, CT 06370

 

Richard Rothholz

16 Hickory Drive

Oakdale, CT 06370

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-522FD/sw/7/24/2009