FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 24, 2009, at which time 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.      It is found that by letter dated June 10, 2008, the complainant requested “any and all internal affairs complaint(s)” against Lt. J.H. Miller and Officer Jay Malley.

3.      With respect to Lt. Miller, it is found that on June 18, 2008, the respondents provided the complainant with a copy of a single record.  It is found that the respondents gave the complainant a copy of Lt. Miller’s Professional Standards History, which is a single-page document stating the history of citizen complaints or internal investigations against Miller and their dispositions.  

4.      With respect to Officer Malley, it is found that on June 18, 2008, the respondents told the complainant that they previously gave the complainant a copy of Officer Malley’s history, on January 23, 2007, in response to an earlier request for records that is not a part of this matter.

5.      It is found that by letter dated June 24, 2008, the complainant informed the respondents that they had not fully complied with his request for records, described in paragraph 2, above.  It is found that the complainant specified that his request encompassed copies of investigation reports and investigation disposition classifications, not simply the Professional Standards History.  It is further found that, with respect to the request for records concerning Officer Malley, the complainant told the respondents that his request included records of any complaints since January 23, 2007.

6.      It is found that by letter dated July 2, 2008, the respondents instructed the complainant to direct all requests for records to town counsel.  

7.      It is found that by letter dated July 3, 2008, the respondents’ town counsel instructed the complainant to direct all requests for records from the respondents to her office during the pendency of civil litigation filed by the complainant against the respondents. 

8.      It is found that the complainant, having received no further communication from the respondents or town counsel in response to his letter of June 24, 2008 in which he elaborated his request for records, sent a letter to town counsel on September 4, 2008, and enclosed a copy of all correspondence with the respondents concerning the records at issue in this matter.

9.      It is found that neither the respondents nor town counsel communicated further with the complainant until well after the complainant appealed to this Commission.

10.   By letter dated October 1, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records he requested, described in paragraph 2, above.

11.     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.

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

 

[e]xcept 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 the provisions of section 1-212. 

 

13.   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 . . . .”

 

14.    It is found that on April 14, 2009, the respondents provided to the complainant some of the copies of records he requested.

 

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

 

16.    At the hearing in this matter, the complainant testified that the respondents had satisfied his request for records with the exception of:

a.       Investigation and disposition files on Internal Affairs Case 97-09 against Lt. Miller; and

 

b.      Findings and disposition records on an Internal Affairs investigation in 2007 against Officer Malley.

 

17.    With respect to the records described in paragraph 16.a, above, the respondents claimed that because Lt. Miller was exonerated of all allegations in I.A. 97-09, all investigative records were destroyed after 10 years, pursuant to the state’s record retention schedule.  The respondents testified that there were no records in the relevant file.

18.    It is found, however, that by cover letter dated May 4, 2009, the respondents informed this Commission and the complainant that subsequent to the hearing in this matter, they discovered and produced copies of “electronically stored drafts” of the investigative summary report and a letter relating to the disposition of I.A. 97-09. 

19.    It is found that on May 4, 2009, the respondents sent the records described in paragraphs 16.a, and 18, above, to the complainant, by U.S. mail.

20.    With respect to the records described in paragraph 16.b, above, the respondents claimed that the matter was resolved through a negotiated union settlement, and the respondents claimed they did not understand the complainant’s request to include such records.  Nevertheless, the respondents agreed at the hearing in this matter to provide such records to the complainant. 

21.    It is found that, by cover letters dated May 4, 2009, and May 15, 2009, the respondents provided by U.S. mail the records described in paragraph 16.b, above, to the complainant.  It is found that the May 4, 2009 letter included one copy each of two settlement agreements concerning Officer Malley and Officer Freeman, and two identical copies of the resulting personnel order for Officer Freeman.  It is found that the May 15, 2009 letter enclosed a copy of Officer Malley’s resulting personnel order, which had been inadvertently omitted from the mailing on May 4, 2009.

22.    It is found that the respondents were unable to explain the 10-month delay, from June 2008 to April 2009, in providing some of the copies of records to the complainant, especially in light of the complainant’s articulate request for records and his letter to town counsel.  It is further found that the records provided after the hearing in this matter should have been found and provided sooner. 

23.    It is found, therefore, that the respondents failed to promptly provide copies of records to the complainant.

24.    It is concluded that the respondents violated the promptness provisions of §1-212(a), G.S.

25.    The complainant requested that the Commission impose a civil penalty if the respondents failed to provide the records he requested before the hearing in this matter.  It is found that the respondents partially complied before the hearing in this matter, and provided the remainder of the records approximately two weeks after the hearing (with the exception of the Malley personnel order, described in paragraph 21, above).  It is further found that the respondent Chief of Police delegated the issue of compliance to town counsel, who failed to respond to the complainant’s correspondence.  However, such town counsel is not a respondent in this matter.

26.    The Commission declines to consider the complainant’s request for the imposition of a civil penalty against the respondents.

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 comply with the promptness requirements of the FOI Act.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 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:

 

Michael Daly #14102

MacDougall-Walker C I

1153 East Street South

Suffield, CT 06080

 

Mark Sirois, Chief, Police Department,

Town of East Hartford; and Police Department,

Town of East Hartford

C/o Frank N. Cassetta, Esq.

Assistant Corporation Counsel

Town of East Hartford

740 Main Street

East Hartford, CT 06108

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-662FD/sw/9/15/2009