FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 21, 2010 at which time the complainant 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.  By letter of complaint dated December 22, 2009 and filed December 28, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his requests described in paragraphs 4 and 6, below.

 

3.  It is found that, in March of 2009, the complainant was contacted by an employee of the respondents, who stated that the complainant was the subject of computer crime allegations.  It is also found that an investigation related to such allegations was initiated by the Stratford Police Department with subsequent assistance from the respondents’ Western District Major Crimes Unit.

 

4.  It is found that, by letter dated November 18, 2009, the complainant made a request to the respondents for a copy of any and all documents and/or police reports regarding the complainant and any and all information from Connecticut State Police Incident Report CFG-08-00590992.

 

5.  It is found that, on or about December 1, 2009, the respondents notified the complainant that his request had been received and was being processed.  The respondents also stated that pursuant to §29-10b, G.S., the fee for a search/copy of each investigative report is $16.00.

 

6.  It is found that, on or about December 5, 2009, the complainant provided the respondents with a check for the sixteen dollar fee, renewed his request for the records described in paragraph 4, above, and specified that he wished to also include the arrest warrant affidavit and arrest warrant pertaining to his original requests (hereinafter the “investigation report” or “report”).

 

7.  It is found that, by letter dated December 23, 2009, the respondents informed the complainant that the investigation, which is the subject of his request, was still pending and that the related report would be forwarded as soon as it became available and its public discloseability had been determined.

 

8.  It is found that, by letter dated February 24, 2010, the respondents denied the complainant’s requests for records, stating that the investigative report is not subject to disclosure pursuant to §1-210(b)(3), G.S., since it consists of uncorroborated allegations of criminal activity.

 

9.  Section 1-200(5), G. S., defines public records to mean:

 

… 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.

 

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

 

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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

 

11.  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.”

 

12.  It is found that the respondents maintain the requested records and that such records are public records, which must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

13.  At the hearing on this matter, the respondents contended that the requested records contain uncorroborated allegations within the meaning of §1-210(b)(3)(G), G.S. In support of their argument, the respondents also contended that the State’s Attorney’s decision to deny the warrant and to close the criminal investigative files is evidence that the allegations contained in such files are uncorroborated. The respondents also agreed to submit the investigation report for an in camera inspection.

 

14.  After the hearing on this matter and at the hearing officer’s request, the respondents submitted the report for an in camera inspection.  Such records consist of 185 pages, which have been designated IC#2009-782-1 through IC#2009-782-185. 

 

15.  It is found that the in camera records were compiled as a result of a criminal investigation conducted by the Stratford police department and the Connecticut State Police into allegations of computer crimes involving the complainant, Douglas O’Meara.  Such records consist of reports, signed witness statements, and other related documents compiled during various stages of the criminal investigation.

 

16.  On the index to records submitted for in camera inspection, the respondents claim that all of the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(G), G.S.  In addition, the respondents claim that various portions of the in camera records are exempt from disclosure pursuant to §§1-210(b)(3)(B), 1-217, 1-210(b)(2), 29-164(f), G.S., and 42 USC §14616.

 

17.  With respect to the respondents’ claim that the in camera records are exempt from disclosure pursuant to §1-210(b)(3)(G), G.S., such provision states, in relevant part, that nothing in the FOI Act shall require the disclosure of:

 

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 . . . uncorroborated allegations subject to destruction pursuant to section 1-216 . . . .

 

            18.  In turn, §1-216, G.S., provides:

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

19.  After careful review of the in camera records, it is found that such records are records of a law enforcement agency, not otherwise available to the public, which were complied in connection with the detection or investigation of crime, and which contain uncorroborated allegations subject to destruction pursuant to §1-216, G.S.  It is further found that disclosure of the in camera records would not be in the public interest.

 

20.  The Commission has consistently concluded that the entirety of the record of an investigation of uncorroborated allegations of criminal activity is exempt from disclosure, pursuant to §1-210(b)(3)(G), G.S.  See, e.g., Docket #FIC2006-049, Otto v. Chief, Police Department, Town of Greenwich (all 48 pages of police report exempt from disclosure under §1-210(b)(3)(G), G.S.); Docket #FIC 2005-031, Bosco v. Chief, Police Department, Town of Wethersfield (all 22 pages of investigation report comprised of incident report; supplemental reports; statements of the complainant, the suspect and another individual; case closure report exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 2003-462, Kosinski v. Department of Public Safety (all 25 pages of investigation report exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 2003-218, Chalecki v. Department of Public Safety (entirety of investigation report exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 2000-291, Damato v. Records Supervisor, Police Department, Town of Glastonbury (all four pages of investigation report exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 1999-493, Peruta v. Chief, Police Department, Town of Wethersfield et al. (all three pages of investigation exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 1999-296, Hartford Courant et al. v. Chief, Police Department, City of Torrington et al. (all 317 pages of investigation report exempt under §1-210(b)(3)(B) and (G), G.S.).

 

21.  It is therefore concluded that the respondents did not violate the FOI Act by withholding the entire in camera records, described in paragraphs 4, 6, 14 and 15, above, from disclosure.

 

22.  Given the conclusion in paragraph 21, above, it is unnecessary to address the respondents’ additional contentions that the requested records are exempt from disclosure under §§1-210(b)(3)(B), 1-217, 1-210(b)(2), 29-164(f), G.S., and 42 USC §14616.

 

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

 

1.      The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2010.

 

 

__________________________

Cynthia A. Cannata

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:

 

Douglas O’Meara

c/o Benjamin G. Blake, Esq.

The Quinn Law Firm, LLC

204 South Broad Street

Milford, CT  06460

 

Legal Affairs Unit, State of Connecticut,

Department of Public Safety; and

State of Connecticut, Department of Public Safety

c/o Terrence M. O’Neill, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-782/FD/cac/11/1/2010