FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on April 27, 2010, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

A Report of Hearing Officer was issued on July 13, 2010.  The Commission considered such report at its regular meeting of September 8, 2010.  At that time, the Commission voted to remand the above-captioned matter to the hearing officer for further consideration.

 

After the remanded hearing on this matter on September 29, 2010, pursuant to §1-21j-38 of the Regulations of Connecticut State Agencies, the respondents filed one after-filed exhibit that is marked as follows:  Respondents’ Exhibit 4, Letter from State’s Attorney John C. Smriga, dated October 1, 2010, to Attorney Melanie Howlett.

 

            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 September 3, 2003, Luis Rivera, an inmate in the custody of the State of Connecticut Department of Correction, made a request to the Office of the City Attorney for the City of Bridgeport for several records, including a booking photograph regarding an August 18, 1989 incident, resulting in the arrest of Mr. Rivera for an alleged murder.  It is also found that, by letter dated March 8, 2004, the complainant, on behalf of Mr. Rivera, made a request to the City Attorney’s Office for such records. 

 

3.      It is found that, approximately five and a half years later, by letter dated September 18, 2009 (“September 18^th request”), the complainant made a request to the respondents for “a color copy of the booking photograph” described in paragraph 2, above, stating:  “This letter is a follow-up to a letter sent on September 3, 2003 by Mr. Rivera and to one sent by me on March 8, 2004 to Associate City Attorney Melanie J. Howlett….”

 

4.      It is found that, by letter dated October 3, 2009 (“October 3^rd request”), the complainant extended his September 18^th request to the respondents to include “a copy of the police report for the cited incident of August 18, 1989 regarding Mr. Rivera.”

 

5.      It is found that on or about October 16, 2009, Sergeant James Kirkland with the City of Bridgeport Police Department, informed the complainant via telephone that he had located Mr. Rivera’s file and that he needed to consult with the City Attorney’s Office before releasing such file.

 

6.      It is found that, by letter dated October 17, 2009 (“October 17^th request”), the complainant extended his September 18^th and October 3^rd requests to the respondents to include copies of “documentation which would evidence the date when the respective Department case file was transferred to the Office of the State’s Attorney….” 

 

7.      It is found that, by letter dated October 22, 2009, the respondent, through counsel, acknowledged the complainant’s October 17^th request, described in paragraph 6, above, stating:  “The request has been forwarded to this office for a response.  We will contact you again by October 30, 2009, regarding whether or not the documents you seek are available as well as the copying costs.”

 

8.      By letter dated November 4, 2009, and filed on November 9, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the requests described in paragraphs 2, 3, 4 and 6, above. 

 

9.      It is found that at the hearing the complainant did not address the portion of his complaint regarding the transfer of the respondent Police Department’s file on Mr. Rivera to the Office of the State’s Attorney, as described in paragraph 6, above.  Accordingly, only the booking photograph and incident report, described in paragraphs 2, 3 and 4, above, will be addressed herein. 

 

10.  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, 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.

 

11.  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.

 

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

 

13.  It is found that the records requested by the complainant, to the extent that they exist, 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.

 

14.  At the April 27^th hearing, the respondents, through counsel, claimed that at the time of the complainant’s requests described in paragraphs 3 and 4, above, the respondents did not maintain or keep on file copies of the booking photograph at issue. 

 

15.  It is found that the respondents conducted a diligent search for the booking photograph at issue.  It is further found that such search involved a thorough review of any and all records in the police department files, including archived records, pertaining to Mr. Rivera, as well as inquiries to the Connecticut State’s Attorney’s Office and the State of Connecticut Department of Correction, who informed the respondents that they do not have copies of such booking photograph.

 

16.  It is found that, at the time of the complainant’s requests described in paragraphs 3 and 4, above, the respondents did not maintain or keep on file a copy of the booking photograph at issue.

 

17.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S, as alleged in the complaint, with respect to the requests for the booking photograph described in paragraphs 3 and 4, above.

 

18.  It is found that on March 30, 2010, the respondents provided the complainant with a redacted copy of the requested incident report described in paragraph 4, above.  The respondents claim that portions of the requested incident report are exempt from disclosure pursuant to §§1-210(b)(3)(B) and 54-82t(j), G.S.

 

19.  After the April 27^th hearing in this matter, the respondents submitted unredacted copies of the incident report described in paragraph 4, above, for in camera inspection, which pages shall be identified herein as IC-2009-678-1 and IC-2009-678-2. 

 

20.  With respect to the §1-210(b)(3), G.S., claim of exemption, that provision states, in relevant part:

 

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... (B) signed statements of witnesses....

 

21.  It is found that in camera records IC-2009-678-1 and IC-2009-678-2, described in paragraph 19, above, constitute records of a law enforcement agency not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G.S.  However, after careful review of such records, it is found that they are not signed statements of witnesses, within the meaning of §1-210(b)(3)(B), G.S.

 

22.  It is therefore concluded that IC-2009-678-1 and IC-2009-678-2 are not exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

23.  The respondents also claim that in camera documents IC-2008-678-1 and IC-2008-678-2 are exempt from mandatory disclosure pursuant to §54-82t(j), G.S.

 

24.  Section 54-82t, G.S., provides, in relevant part:

 

(b) In any investigation or prosecution of a serious felony offense, the prosecutorial official shall review all witnesses to the offense and may identify any witness as a witness at risk of harm. Upon such identification, the prosecutorial official shall then determine whether a witness at risk of harm is critical to a criminal investigation or prosecution. If the witness at risk of harm is determined to be critical to such investigation or prosecution, the prosecutorial official may (1) certify that the witness receive protective services…

(c) When a witness is certified as provided in subsection (b) of this section, the Chief State's Attorney shall provide appropriate protective services to such witness. The Chief State's Attorney shall coordinate the efforts of state and local agencies to provide protective services to a witness…

 

(j) Any record of the Division of Criminal Justice or other governmental agency that, in the reasonable judgment of the Chief State’s Attorney or a state’s attorney, would disclose or would reasonably result in the disclosure of the identity or location of any person receiving or considered for the receipt of protective services under this section … shall be confidential and not subject to disclosure under the Freedom of Information Act….

 

25.  It is found that, by letter dated October 1, 2010, the Office of the State’s Attorney notified the respondents that they believe the names and addresses of any witnesses are protected under §54-82t(j), G.S., and that they do not believe it is appropriate to release such names and addresses due to safety concerns. 

 

26.  It is found, however, that the respondents failed to provide any evidence that the witnesses identified in IC-2009-678-1 and IC-2009-678-2 were certified as provided in subsection (b) of §54-82t.  It is also found that the respondents failed to provide any evidence that the witnesses were considered for such certification.

 

27.  It is found, therefore, that the respondents failed to prove that the witnesses are “receiving or considered for the receipt of protective services” under §54-82t, G.S.

 

28.  It is concluded that §54-82t, G.S., does not prohibit disclosure of the records referred to as IC-2009-678-1 and IC-2009-678-2. 

 

29.  It is further concluded that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with unredacted copies of IC-2009-678-1 and IC-2009-678-2. 

 

 

            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 unredacted copies of the in camera records at issue herein, at no cost. 

 

2.      The respondents shall forthwith continue to search for a copy of the booking photograph described in paragraphs 2 and 3 of the findings, above.   Should such search yield a copy of such photograph, the respondents shall forthwith provide the complainant with a copy thereof, at no cost.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 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:

 

Ethan Book, Jr.

PO Box 1385

Fairfield, CT 06825

 

Chief, Police Department,

City of Bridgeport; and Police Department,

City of Bridgeport

c/o Melanie J. Howlett, Esq.

Associate City Attorney

Office of the City Attorney

999 Broad Street, 2^nd Floor

Bridgeport, CT 06604                                                                                                                                                                                                               

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-678FD/paj/10/28/2010