FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 6, 2009, at which time the complainant and the respondents appeared 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, 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 May 19, 2009, the complainant made a request to the respondents Chief, Police Department, City of Hartford, and Police Department, City of Hartford (the “Hartford respondents”) for “production of documents and copies of the entire file for case no. 04-25934.”

 

3.  It is found that, by letter dated May 19, 2009, the complainant made a request to the respondents Chief, Police Department, Town of Wethersfield, and Police Department, Town of Wethersfield (the “Wethersfield respondents”) for “production of documents and copies of the entire file for case no. 04-11182.”

 

4.  It is found that, by letter dated July 2, 2009, the Hartford respondents informed the complainant that “after an extensive search, it was determined that … Case 04-25934 was not prosecuted, and that nine pages of documents exist.”  It is further found that the Hartford respondents provided the complainant with a copy of the arrest warrant application in case no. 04-25934, consisting of nine pages, with the identities of the victims of sexual assault redacted.

 

5.  By letter dated July 21, 2009, the Wethersfield respondents informed the complainant that case no. 04-11182 “has been erased,” but in such letter provided the complainant with certain information regarding such case, including the name of the subject of the arrest, the date of arrest, the charges, and the date of disposition. 

 

6.  By letter of complaint dated July 2, 2009, and received and filed July 7, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the requests described in paragraphs 2 and 3, 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 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 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 the respondents maintain the records described in paragraphs 2 and 3, above, such records 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.  Section 1-210(b)(3)(F), G.S., provides, in relevant part, that the name and address of the victim of a sexual assault under sections 53a-70, 53a-71, or 53-21 are not required to be disclosed.

 

12.  It is found that the complainant was arrested in 2004, and convicted, after a jury trial in 2008, of 28 counts of sexual assault in the first degree, sexual assault in the second degree, and risk of injury to a minor, stemming from incidents that occurred from approximately 1998 through approximately 2002, in the towns of Hartford, Wethersfield, Vernon, West Hartford, and Windsor Locks.  It is further found that the arrest warrant application issued by the Hartford respondents charged the complainant with a total of eight counts, which are identical to counts one through eight of the information charging the complainant with crimes committed in the city of Hartford.  It is found that counts 25 and 26 of the information charged the complainant with crimes committed in the town of Wethersfield.  It is also found that the complainant is presently incarcerated as a result of the conviction on all 28 counts listed in the information.  

 

13.  It is found that both the Hartford respondents and the Wethersfield respondents conducted an investigation regarding the incidents described in paragraph 12, above. 

 

14.  It is found that, upon receipt of the request described in paragraph 2, above, the Hartford respondents conducted a search for records responsive to such request.  At the hearing in this matter, a witness for the Hartford respondents testified that her computer search revealed that such case was “not prosecuted.” 

 

15.  It is found that, upon receipt of the request described in paragraph 3, above, the Wethersfield respondents conducted a search for records responsive to such request, and that such search revealed that such records are “erased.”   

   

16.  Both the Hartford respondents and the Wethersfield respondents claim the records described in paragraphs 2 and 3, above, are exempt from disclosure pursuant to §54-142a(c), G.S.  That section provides, in relevant part: 

 

“Whenever any charge in a criminal case has been nolled in the Superior Court…if at least thirteen months have elapsed since such nolle, all police and court records and records of any state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased…” 

 

17.  Section 54-154a(e), G.S., further provides in relevant part:

 

“…any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of such record…information pertaining to any charge erased under any provision of this section…”

 

18.  Both the Hartford respondents and the Wethersfield respondents offered the records, described in paragraphs 2 and 3, above, for an in camera review.  Such records shall be identified herein as IC 2009-395-001A through IC 2009-395-051A (Wethersfield) and IC 2009-395-001B through IC 2009-395-009B (Hartford).  It is found that such records consist of the records of the Wethersfield respondents’ and the Hartford respondents’ investigations into the crimes described in paragraph 12, above, for which the complainant was convicted and is presently serving a 46 year sentence, suspended after 36 years, twenty-one months mandatory minimum, twenty years probation.  It is further found that such records are responsive to the requests described in paragraphs 2 and 3, above.

 

19.   At the hearing in this matter, the complainant asked the respondents to explain their position that the charges in his case have been nolled when he is in fact sitting in prison having been tried and convicted of those very charges.

 

20.  It is found that neither the Hartford respondents nor the Wethersfield respondents offered credible evidence at the hearing in this matter that the requested records, described in paragraphs 2 and 3 above, pertain to criminal charges which have been nolled in Superior Court and erased.

 

21.  It is found that the Hartford respondents and the Wethersfield respondents failed to prove that the records, described in paragraphs 2 and 3, above, are exempt from disclosure by virtue of §§54-154a(c), or 54-154a(e), G.S.  “The burden of establishing the applicability of an exemption clearly rests on the party claiming the exeption.”  Perkins v. Freedom of Information Commission, 228 Conn. 158, 167 (1993). 

 

22.  The Hartford respondents additionally claim that certain of the in camera records, specifically IC 2009-395-006B through 008B (Hartford) are exempt from disclosure pursuant to §53a-251(e)(1), G.S.  That section provides that “a person is guilty of the computer crime of misuse of computer system information when…as a result of his accessing or causing to be accessed a computer system, he intentionally makes or causes to be made an unauthorized display, use, disclosure or copy, in any form, of data residing in, communicated by or produced by a computer system….” 

 

23.  The Hartford respondents offered no evidence or argument at the hearing in this matter in support of such claim.  It is found that §53a-251(e)(1), G.S., does not constitute the basis for an exemption to the disclosure requirement of the FOI Act.  Accordingly, it is found that the Hartford respondents failed to prove that IC 2009-395-006B through 008B (Hartford) are exempt from disclosure on the basis of such statute. 

 

24.  Based upon the foregoing, it is concluded that the Hartford respondents and the Wethersfield respondents violated the FOI Act as alleged in the complaint.

 

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

 

1.  The Hartford respondents and the Wethersfield respondents shall forthwith provide the complainant with a copy of the in camera records, free of charge.

 

2.  In complying with paragraph 1 of the order, above, the Hartford respondents and the Wethersfield respondents may redact only all identifying information and address of the victim contained in such records, in accordance with §1-210(b)(3)(F), G.S. 

 

3.  Henceforth, the Hartford respondents and the Wethersfield respondents shall strictly comply with the provisions of §§1-210(a), and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 2010.

 

 

 

____________________________

Petrea A. Jones

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:

 

Constantinos Antonaras, #322751

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT 06470

 

Chief, Police Department,

City of Hartford; and Police Department,

City of Hartford

c/o Nathalie Feola-Guerrieri, Esq.

Office of the Corporation Counsel

City of Hartford

550 Main Street, Room 303

Hartford, CT 06103

 

Chief, Police Department,

Town of Wethersfield; and Police

Department, Town of Wethersfield

c/o Jonathan R. Chappell, Esq.

Rome McGuigan, P.C.

One State Street

Hartford, CT 06103

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-395FD/paj/5/13/2010