FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 15, 2010 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A continued hearing was held on August 3, 2010, at which time only the complainant appeared and presented additional 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 et al, 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.      By letter dated January 19, 2010, the complainant made a request to the respondents for a copy of records related to case number 96D-2600.

 

3.      It is found that the complainant was arrested on March 10, 1997, and the records related to case number 96D-2600 comprise the investigation file of the respondent police department related to his arrest and subsequent felony murder convictions.  It is found that the investigation file includes at least one report from the medical examiner’s office, and records generated by the Connecticut Department of Public Safety.

 

4.      By letter dated January 26, 2010 and filed on February 3, 2010, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request.  The complainant requested the imposition of a civil penalty.

 

5.      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. 

 

6.      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 . . . receive a copy of such records in accordance with section 1-212. 

 

7.      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.”

 

8.      It is found that, to the extent the requested records exist, such records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that the investigation file was not destroyed by the respondents but rather archived.  While three searches had been conducted for the file, it could not be located.

 

10.   At the April 15, 2010 hearing, the respondents explained that while the investigation file had not been located, they were not willing to represent that it no longer existed and requested an opportunity to continue their search.  Thus, the hearing was continued.

 

11.   It is found, however, that as of the August 3, 2010 continued hearing on this matter, the respondents still had not located the file. 

 

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

 

. . . each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place. . . .

 

13.  It is found that the respondent police department is the “regular office or place of business” of the respondents, and therefore, the respondents’ public records, which include those requested by the complainant, must be kept and maintained at that location and must be in an accessible place pursuant to §1-210(a), G.S.

 

            14.  Based on the findings in paragraphs 9 and 11, above, it is concluded that the respondents violated §1-210(a), G.S., by failing to maintain the requested records at its “regular office or place of business in an accessible place,” as required by that provision.

 

15.  Although the respondents cannot locate the file, it is found that some of the records contained in the file were only copies of records that originated from other agencies and therefore, the file could be recreated to the extent the other agencies maintain those original records.

 

16.  Notwithstanding the conclusion in paragraph 15, above, the Commission declines to consider the complainant’s request for a civil penalty in this matter. 

 

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

 

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

 

2.  The respondents shall forthwith conduct a diligent search for any records that were generated by the respondents, the medical examiner, or the Connecticut Department of Public Safety in connection with the complainant’s March 10, 1997 arrest and subsequent conviction.  Such search shall include, but not be limited to, requesting a copy of any related records directly from the medical examiner’s office, the Connecticut Department of Public Safety, and any officers or detectives of the respondent department who participated in the investigation.  The respondents shall thereafter provide the complainant with a copy of any non-exempt records located as a result of such search, free of charge.  If no records are found, the respondents shall provide the complainant with an affidavit detailing the scope, duration, and results of the search for such records.  Further, if any of the requested records do not exist, the respondents shall provide the complainant with an affidavit attesting to that fact.  The respondents shall comply with this order within 60 days of the Notice of the Final Decision in this matter.

 

3.  The respondents shall recreate the file described in paragraph 3 of the findings, above, and provide such recreated record to the complainant within 30 days of the Notice of the Final Decision in this mater.

 

Approved by Order of the Freedom of Information Commission at its special meeting of January 13, 2011.

 

 

__________________________

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:

 

Norman Gaines, #249779

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT 06470

and

c/o Arnold V. Amore, Esq.

1948 Chapel Street

PO Box 3106

New Haven, CT 06515

 

Joseph Gaudett, Chief, Police

Department, City of Bridgeport;

and Police Department, City of

Bridgeport

c/o Edmund Schmidt, Esq.

Office of the City Attorney

999 Broad Street

Bridgeport, CT 06604

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-067FD/paj/1/14/2011