FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 10, 2009, at which time the complainant and the respondents appeared 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, by letter dated June 29, 2009, the complainant requested from the respondents copies of the following police incident reports:

 

            (a)  #09-0105-135913 (Officer DeMarco)

            (b)  #09-0417-160353 (Officer Perrotti)

            (c)  #09-0422-190647 (Detective Roche)

            (e)  #09-0427-110811 (Officer Perrotti)

 

In addition, the complainant requested “any and all other information regarding me or my affairs which may be in the possession of the OSPD and which has not already been provided.”

 

3.  It is found that, on July 9, 2009, the respondent chief, who, at that time was newly appointed to his position, met in person with the complainant and provided copies of the four police incident reports described in paragraph 2, above (the “July 9 meeting”).  It is also found that the respondent chief, in a genuine effort to try to understand the complainant’s request, spent time during the July 9 meeting discussing such request with the complainant, showed the complainant how the police department’s computer system worked, and printed out a list from the computer which showed each instance, since 1997, in which the complainant’s name appeared in the respondent department’s records.  It is further found that the respondent chief gave the complainant a copy of such print-out free of charge, during such meeting.  It is further found that, at the time of the July 9 meeting, both the complainant and the respondents believed that all records responsive to the request described in paragraph 2, above, had been provided to the complainant.   

 

4.  It is found that, after the July 9 meeting, the complainant reviewed the four incident reports, described in paragraphs 2 and 3, above, and, after reading such reports, believed the respondents retained additional records, responsive to his request that had not been provided to him. 

 

5.  It is found that, by letter to the respondents dated July 14, 2009, the complainant specifically described the records he believes are retained by the respondents that are responsive to the request described in paragraph 2, above, and which have been withheld from him.  It is found that such letter consists of forty-six (46) numbered paragraphs in which the complainant asks questions regarding the existence of certain records. 

 

6.  By letter of complaint dated July 30, 2009, and filed July 31, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to fully respond to the request described in paragraph 2, above.

 

            7.  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.

 

8.  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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

            9.   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.”

 

10.  It is found that, to the extent that they exist, the records described in paragraphs 2 and 5, above, are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

11.  At the hearing in this matter, the complainant testified that, by the request described in paragraph 2, above, he was seeking not just the incident reports, but also all records related to the incident reports that might be kept in the case files associated with such incident reports.  The respondent chief testified at the hearing that he interpreted the request, described in paragraph 2, above, as a request for the police incident reports only, and that he did not search for, or through, the related case files for additional records.

 

12.  It is found that a genuine misunderstanding on the part of the respondent chief existed as to the scope of the request and that there was no intent on the part of the respondent chief to withhold records from the complainant.  In fact, it is found that the chief made extra-ordinary efforts to meet with the complainant, in person, to attempt to ensure that the complainant had all the records he was seeking.

 

13.  At the hearing in this matter, the hearing officer ordered the respondents to conduct an additional search for records in light of the testimony, described in paragraph 11, above, and further ordered that if such search revealed additional records responsive to the request described in paragraphs 2 and 5, above, that the respondents provide a copy of such records to the complainant and to the Commission, along with an affidavit concerning the nature of the search, on or before December 4, 2009. 

 

14.  By letter dated December 4, 2009, the respondents provided the complainant and the Commission with an affidavit of the respondent chief, stating that an additional search for records had been conducted, and that all responsive records have been provided to the complainant; a written response to each of the forty-six (46) numbered paragraphs described in paragraph 5, above; and a copy of the additional records revealed by the search, consisting of the contents of the case files corresponding to the four incident reports described in paragraph 2, above.  Such documents will be marked as an after-filed exhibit and identified as Respondents’ Exhibit 2.

 

15.  It is found that the respondents’ position, as summarized in Respondents’ Exhibit 2, is that the officers involved in the investigations at issue, did not tape record any conversations or communications they had with any individuals they interviewed during the course of such investigations; rather all notes and information gathered during the course of such investigations were written and made part of the corresponding case files, copies of which were provided to the complainant.  It is further found that, with regard to the complainant’s request for copies of voice mail messages, the respondents’ position, as stated in Respondents’ Exhibit 2, is that they are “not required to transcribe, tape or record voice mail messages by any other means.”    

 

16.  By letter dated December 23, 2009, the complainant objected to Respondents’ Exhibit 2, described in paragraph 15, above, stating his belief that the respondents’ compliance is “flawed” and “not carried out in good faith.” 

 

17.  It is found that, as a basis for such belief, the complainant points to the fact that the search for records was conducted by the respondent chief, and not the individual officers who created the police reports at issue, and, that such officers did not “attest” to the information contained in such reports.  In addition, it is found that the complainant believes the respondents acted in “bad faith” because they failed to acknowledge, in Respondents’ Exhibit 2, the specific statement, written by Officer Perrotti, in an incident report, dated April 22, 2009, that Officer Perrotti “taped [the complainant’s] voice mail message he had left for me on April 20, 2009…” and further failed to disclose such tape recording. 

 

18.  Taking into consideration all of the facts and circumstances in this case, it is found that the respondents’ additional search for records responsive to the request described in paragraphs 2 and 5, above, was diligent, and made in good faith, in an effort to fully comply with such request.  It is found that the respondents provided the complainant with all of the requested records, with the exception of a copy of the tape recording of the complainant’s voice mail message created by Officer Perrotti, described in paragraph 17, above.  It is found that, although the respondents’ failure to disclose such record to the complainant, to the extent such record still exists, violates the disclosure provisions of the FOI Act, the Commission further finds that the respondents’ failure to disclose such record was not intentional.  It is also found that the respondents did not violate the FOI Act in refusing to transcribe, tape or record voice mail messages that may exist on the respondents’ voice mail system. 

 

19.  Based upon the foregoing, it is concluded that the respondents violated the provisions of §§1-210(a) and 1-212(a), G.S. by failing to comply with the request for a copy of the tape created by Officer Perrotti, described in paragraph 17, 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 provide the complainant with a copy of the tape recording created by Officer Perrotti, described in paragraph 17 of the findings, above, free of charge, if such tape still exists. 

 

2.  In the alternative, if the respondents no longer maintain the tape recording described in paragraph 17 of the findings, above, they shall so inform the complainant by letter forthwith.

 

3.  The respondents shall make a diligent search for tape recordings of any additional voice mail messages and shall provide an affidavit to the complainant indicating the results of such search and shall also provide the complainant with a copy of any additional tape recordings it finds.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

____________________________

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:

 

Lamberto Lucarelli  

21 Howard Street

Old Saybrook, CT 06475

Chief, Police Department, 

Town of Old Saybrook; and

Police Department, Town of

Old Saybroook

C/o Michael E. Cronin, Jr., Esq.

201 Main Street

P.O. Box 454

Old Saybrook, CT 06475

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-445FD/sw/4/19/2010