FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 3, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts 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), G.S.

 

2.  By letter of complaint filed August 7, 2008, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for records concerning a woman’s suicide that occurred in the Enfield Street Cemetery on Wednesday, July 16, 2008.  The complainants alleged that town officials had declined even to provide the name of the woman who died by suicide.   

 

            3.  It is found that by letter dated July 21, 2008, the complainants requested “the name of the woman who was the victim of an untimely and violent death in the Enfield Street Cemetery in Enfield on Wednesday July 16, 2008.”

 

            4.  It is found that the respondents denied the complainants’ request by letter dated July 23, 2008, on the asserted grounds that the record sought was part of an open criminal investigation.  The letter indicated that “[u]pon the completion of the investigation, and dependent upon its outcome, the appropriate records will be released.”

 

5. It is found that the deceased was discovered and identified by the Enfield Police Department on Wednesday, July 16, 2008.

 

6.  It is found that the respondent Chief stated to the complainant Journal Inquirer on or about July 18, 2008 that a young woman had committed suicide by shooting herself in the head at the Enfield Street Cemetery.  The Chief declined to identify the woman, saying he did so in deference to her family, and because the investigation into her death hadn’t been completed, and the Journal Inquirer published that news on July 18, 2008. 

 

7.  It is found that the Office of the Chief Medical Examiner conducted a post mortem examination of the deceased on July 17, 2008, and certified the cause of death as “gunshot wound of head” and “circumstances pending further investigation.”

 

8.  It is found that the Medical Examiner’s conclusions were, initially without the complainants’ knowledge, filed with the Town Clerk of Enfield as a death certificate on July 18, 2008.

 

9.  It is found that the complainants obtained the death certificate from the town clerk’s office on or about July 30, 2008.

 

10.  It is found that the complainants, by letter dated July 30, 2008 to the respondents, requested:

 

      a.   a copy of any record of the name of the woman who died, allowing for any investigative information other than the woman’s name to be redacted;

      b.   an opportunity to inspect the full texts of any records that then existed on the suicide; and

      c.   the opportunity to inspect the full report of the suicide once it was completed.

 

11.  It is found that the respondents did not reply to the July 30, 2008 request.

 

12.  It is further found that, unknown to the complainants at the time, the Medical Examiner also filed a “Notification to Police” dated July 22, 2008 with the respondents, reciting the name of the deceased and the cause of death as certified on the death certificate, and requesting a report of the investigation conducted by the respondents into the circumstances of death.

 

13.  It is found that the bulk of the respondents’ investigation was conducted on July 16 and 17, 2008, and was completed on or about August 4, 2008.  The earliest portions of the investigative records, dated July 22, 2008, characterized the investigation as one into a suicide.  The final report of the investigation concluded that all indications pointed to suicide death by self-inflicted gunshot wound, and recommended that the case by closed.

 

14.  It is found that the respondents forwarded the report of their investigation to the Medical Examiner, and the Medical Examiner certified the manner of death as suicide on August 25, 2008.

 

15.  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.

 

            16.  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. 

 

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

 

18.  It is concluded that all of the records described in paragraphs 7, 12, 13 and 14, above are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S. 

 

19.  It is found that the respondents knew the name of the deceased soon after they discovered the body on July 16, 2008, based on the registration of a vehicle parked nearby, and an identification by the deceased’s mother at the scene.

 

20.  It is found that records in the respondents’ custody, including the investigative records dating back to July 22, 2008, and the July 22, 2008 medical examiner’s report, both named the deceased.

 

21.  At the hearing, the complainants limited their complaint to the issue of whether records identifying the deceased had been provided in a timely manner, based on the facts recited in paragraphs 8, 19 and 20, above.

 

22.  The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

23.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.        

 

24.  It is found that the volume of records requested was very small; that the time and personnel required to comply with the request were minimal; that the time by which the Journal Inquirer needed the records was immediate, based on publication deadlines; that the respondents offered no evidence concerning the time constraints under which they must complete their other work; that the records were very important to the complainants, based on their need to report news accurately; and that the respondents offered no evidence to show the importance to the public of completing other agency business with the minimal loss of personnel time that would have been required to comply with the request.

 

25.  The respondents contend, however, that the records were exempt at the time of the requests pursuant to §1-210(b)(3)(C), 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action ….

 

            26.  The respondent’s burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).          

 

27.  The respondents offered no evidence that the requested records were in fact to be used in a prospective law enforcement action, other than to assert that the investigation was still “open,” notwithstanding that no evidence pointed to any conclusion other than suicide by the deceased, and that there was the “potential” for a law enforcement action.

 

28.  The respondents also offered no evidence to prove that disclosure of merely the name of the deceased would have been prejudicial to any law enforcement action, other than to speculate through counsel along the following lines:

 

In terms of not disclosing the name: if, for example, because I understand under the Department of Public Safety case, that there needs to be some sort of showing as to what is it that could have some sort of showing that this is going to prejudice things; if, let’s say, I were to give a knife to my brother, and leave it there, and just say, “hold on to this,” and the next thing you know, my poor husband is found somewhere, and my brother says, “I better get rid of this knife,” if he finds out, if the identity of my husband, I mean, if something is disclosed that this person has met with foul play, in terms of the name, if the name, if it’s still confidential and it’s still a secret, then nobody can know what’s going on, in terms of some potential criminal investigation.

 

I recognize there has to be some kind of nexus there, but it’s more than just discretion.  The prosecutor’s ultimately going to have to say “we need to track down these weapons, we know that Maria was hoarding knives somewhere.”  You’re going to want to have some sort of ability to track things or, by the same token, not worry about compromising a potential investigation.  So the name is important. …  There were some questions about her marital situation in the background here.

 

29.  While the hypothetical situation presented by the respondents’ attorney could conceivably occur, no evidence was presented that such a situation was connected to the actual suicide being investigated in this case—that there was, in the respondents’ words, any nexus between the hypothetical and the actual suicide investigation.  Such a nexus would seem necessarily to include, for example, some reason for the respondents to believe that the death was something other than a suicide, or some reason to believe that another individual was involved.  Although the respondents’ attorney adverted to the deceased’s “marital situation,” the deceased’s husband was cleared as a suspect by July 21, 2008, when the respondents determined that he was incarcerated at Hartford Community Correctional Center at the time of his wife’s death.

 

30.  Although secrecy about the respondents’ investigations might theoretically aid those investigations by keeping all involved persons in the dark, Department of Public Safety, above, makes it clear that police departments may not draw a curtain of secrecy around all investigations until the investigations are closed, absent some evidence that

the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  The legislature has determined, through enactment of the FOI Act, that a law enforcement agency’s need for secrecy is to be balanced against the public’s right to know, through the strict application of the specific exemptions in §1-210(b)(3), G.S.

 

31.  It is concluded that the respondents’ speculation concerning a “potential” prospective law enforcement action, and general concerns about the destruction of evidence, fail to satisfy the respondents’ burden of proof under §1-210(b)(3)(C), G.S. 

 

32.  It is further concluded that the records were not provided promptly within the meaning of §1-212(a), G.S.

  

            33.  It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., when they refused to provide a record containing the name of the deceased suicide victim before the investigation was closed, and promptly after the complainants’ request.

 

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

 

            1.  The respondents shall henceforth strictly comply with the requirements of §§1-210(a) and 1-212(a), G.S.  Specifically, the respondents shall not withhold records in an effort to conceal the identity of a deceased individual in the absence of specific evidence of a prospective law enforcement action, evidence that the records are in fact to be used in such prospective law enforcement action, and evidence that disclosure of the records would be prejudicial to such action.

 

 

 

 

 

 

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:

 

Alexander Wood, Doreen Guarino,

Laura F. Alix and the Manchester

Journal Inquirer

306 Progress Drive

P.O. Box 510

Manchester, CT 06045

 

Chief, Police Department,

Town of Enfield; and

Police Department,

Town of Enfield

293 Elm Street

Enfield, CT 06082

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-523FD/sw/7/23/2009