FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 7, 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.      It is found that on February 26, 2007, the complainants submitted a written request to the respondents for “all police reports and statements made by James Thomas” in the criminal investigation that resulted in his conviction for murder.

 

3.      It is found that the respondents failed to respond to the complainants’ request.

 

4.      It is found that on September 4, 2007, the complainants renewed their request for the records described in paragraph 2.

 

5.      It is found that the respondents again failed to respond to the complainants’ request.

 

6.      It is found that the complainant Toddy called the respondents by phone on September 28, 2007, and spoke with an employee of the respondents who worked in the Records Room.  It is found that the employee told Ms. Toddy that the records she requested were “in archives.”

 

7.      It is found that, after speaking with the respondents’ employee, the complainants again renewed their request for the James Thomas records, and added a request for “all police reports and statements made by Luis Sostre” in the criminal prosecution that resulted in his conviction for murder.  It is found that the complainants made their request in writing on September 28, 2007.

 

8.      It is found that the complainants received no response from the respondents until October 9, 2007, when the respondents’ employee told complainant Toddy that the respondents were waiting for the Detective Bureau’s consent to release the records.  It is found, however, that the prosecutions of Thomas and Sostre were not pending at the time of the complainants’ requests.  It is found that the Connecticut appellate courts affirmed the convictions of Thomas and Sostre in 2006 and 2002, respectively. 

 

9.      It is found that on October 18, 2007, the complainants received only a single page incident report noting the service of the arrest warrant on Thomas and a five-page arrest warrant application for Luis Sostre. 

 

10.   It is found that, upon Toddy’s protest that the respondents’ compliance with her request for records was incomplete, the respondents’ employee informed Toddy that she should contact the respondents’ attorney. 

 

11.   It is found that by letter received and filed on November 14, 2007, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by refusing to disclose all of the records described in paragraph 7, above.  The complainants requested the imposition of a civil penalty against the respondent chief.

 

12. Section 1-200(5), G.S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

13. 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. 

 

14.   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 . . . .”

 

15.   It is found that in subsequent communications, the respondents told Toddy first, that the Thomas records had been sealed by the court; next, that copies of all the records would be provided with redactions; then, that the Thomas file was lost; and finally, on March 14, 2008, that the complete Thomas file had been provided to the State’s Attorney and that the respondents no longer maintained a copy of any of the records.

 

16.   It is found that, in order to comply with the complainants’ September 28, 2007 requests, the Supervisor of Records for the respondents searched the archived records, which search produced some records concerning the Sostre prosecution, but nothing concerning the Thomas prosecution.  It is also found that such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.  It is found that the respondents provided the copies of Sostre-related records to the complainants by early March 2008.

 

17.   It is found that the copies of Sostre-related records do not comprise the entirety of the records that were created during the investigation and prosecution of the murder case against Sostre. Nevertheless, it is found that the respondents cannot locate the remainder of the file of records concerning Sostre.

 

18.   It is found that, in order to comply with the complainants’ September 28, 2007 requests for records, the Supervisor of Records, after having little success with the archived files, asked all the investigators and prosecutors involved in the Thomas and Sostre matters for copies of any records they retained.  It is found that the search produced no additional records relating to Sostre, and only a copy of the detective’s arrest warrant affidavit in the Thomas matter.

 

19.   It is found that by mid-March 2008, the respondents learned that the paper Thomas records were located in the State’s Attorney’s office.

 

20.   It is found that the respondents gave the Thomas-related file of paper records to the State’s Attorney prior to the complainants’ request for copies.  It is found that, while the respondents no longer physically maintain or keep on file such records, such records are still the property of the respondents, who “prepared, owned [or] used” the records, within the meaning of §1-200(5), G.S.

 

21.   It is found that, although counsel for the respondents attempted to facilitate the complainants’ access to the paper records at the office of the State’s Attorney, the respondents did not submit a request to the State’s Attorney for the return of the records, nor did they request that the State’s Attorney make a copy of the records and provide them to the respondents.

 

22.   It is found that the Thomas-related paper records located at the office of the State’s Attorney are public records of the respondents within the meaning of §§1-200(5), 1-212(a) and 1-210(a), G.S.  It is further found that the respondents failed to prove they are not required to keep on file or maintain such records.

 

23.   It is found that, although the respondents performed a thorough search for the paper Thomas and Sostre files, they failed to perform a search for the records that may have been maintained in digital files.

 

24.   Based on the facts and circumstances of this case, it is concluded that the respondents violated the promptness requirements of the FOI Act, by taking at least five months from the date of the complainants’ September 28, 2007 request, and more than one year from the date of the complainants’ original request in February 2007, to partially comply with the complainants’ request for copies of records.  It is further concluded that the respondents violated §§1-212(a) and 1-210(a), G.S., by failing to fully comply with the complainants’ request.

 

25.   It is found that the respondents’ response to the complainants’ requests for records was inadequate.  It is found that the respondents at first failed to respond at all to the complainants’ requests, and then provided inaccurate and inconsistent information, before finally acknowledging that the paper records that they created and used were no longer in their custody or accessible to the public under the FOI Act.  

 

26.  With respect to the complainants’ request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

27.  An employee in the Administrative Services Division of the respondent Police Department was directly responsible for the denial of the complainants’ right to receive copies of public records promptly upon request.  It is further found that the denial of the complainants’ right by the employee of the Administrative Services Division was without reasonable grounds.

          

 

 

 

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

1.  The respondents shall forthwith undertake a diligent search for digital copies of the requested records. If the requested records are located, the respondents shall forthwith provide a copy to the complainants.  If no requested records are found, the respondents shall provide the complainants with an affidavit detailing the scope, duration, and results of the search.

2.   The respondents shall forthwith retrieve, or otherwise obtain a copy of, the records described in paragraphs 2 and 19, above, and provide a copy to the complainants, free of charge.

3. With respect to the complainants’ allegation that the respondents’ policy of giving copies of records to the State’s Attorney without maintaining a duplicate copy contravenes the mandates of the FOI Act, the Commission notes that the complainants may pursue any allegations of violations of records retention requirements with the State Public Records Administrator, who has jurisdiction over such matters.

4.  The respondents are ordered to comply henceforth with the promptness requirements of the FOI Act.  The respondents are admonished that their inconsistent and often-changing responses to the complainants’ requests for records were unsatisfactory and unprofessional.

5.  The officer in charge of the Administrative Services Division of the respondent Police Department shall forthwith remit to the Commission a civil penalty in the amount of $500.00.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 14, 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:

 

Melissa Toddy and State of Connecticut,

Office of the Chief Public Defender

2275 Silas Deane Highway

Rocky Hill, CT 06067

 

Bryan T. Norwood, Chief, Police Department,

City of Bridgeport; and Police Department,

City of Bridgeport

C/o Melanie J. Howlett, Esq.

Office of the City Attorney

999 Broad Street

Bridgeport, CT 06604

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-615FD/sw/10/15/2009