FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on December 21, 2010, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above captioned matter was consolidated with Docket # FIC 2010-359; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; Docket # FIC 2010-387; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; and Docket # FIC 2010-460; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety.  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.      It is found that, on or about January 11, 2010 (“January 11^th request”), the complainant requested records from the respondent Department of Public Safety pertaining to File No. 10-014, addressing such request to “Cars,” “Public Safety,” “Troop I” and “Records.”

 

3.      It is found that, by letter dated January 19, 2010, the Legal Affairs Office for the respondents acknowledged the complainant’s request, described in paragraph 2, above, and informed him that his request had been referred to their office for review and response.  It is also found that the respondents informed the complainant that the fee for a search/copy of each investigative report was $16.00, and upon receipt of such payment or documentation of indigency pursuant to the Department of Public Safety’s Policy Regarding FOI Act Indigency Determinations, the respondents would commence the search for records responsive to the complainant’s January 11^th request.  

 

4.      It is found that, by letter dated March 3, 2010 (“March 3^rd request”), the complainant requested the following from the respondents:

 

[a] complete copy of State and Prospect accident report in case number A0700161350, together with all investigative reports, statements, tests, warrants, inspections, maps, measurements and consent for;

 

[b] complete copy of toxicology request, logs, consent forms, sample logs, results, and findings;

 

[c] complete copy of Officer Norman J. George IC32, reports, notes, statements, and interviews pertaining to case A0700161350;

 

[d] complete copy of Officer Douglas Fairchild IC34, reports, notes, statements, and interviews pertaining to case A0700161350;

 

[e] complete copy of Sgt. Mark D. Grasso #131, reports, notes, statements, and interviews pertaining to case A0700161350;

 

[f] complete copies of photos drawings, and tapes;

 

[g] complete copy of protocol, operation manual, and procedures in effect at the time governing automobile accident investigation, review of field sobriety testing, and testing for the use of drugs and alcohol;

 

[h] all documentation of the review of David G. Weaving motor vehicle operator’s license, driving history, and license status; and

 

[i] all documentation of the review, of the motor vehicle registration and history of the vehicle involved.

 

5.      It is found that, by letter dated March 11, 2010, the respondents acknowledged the complainant’s March 3^rd request, and informed him that, believing that the March 3^rd request to be substantially identical to his January 11^th request pertaining to File No. 10-014, described in paragraph 2, above, they combined both requests, and expected to have the search and review for such requests completed shortly.  It is also found that the respondents denied the complainant’s indigency request for the waiver of copying fees associated with his records requests.

 

6.      By letter dated April 12, 2010, and filed on April 13, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records, described in paragraphs 2 and 4, above. 

 

7.      At the hearing in this matter, the complainant stated that the records described in paragraphs 4.h and 4.i, above, are no longer at issue in this matter.  Accordingly, only the records, described in paragraphs 4.a, 4.b., 4.c, 4.d, 4.e, 4.f and 4.g, above, will be addressed herein.  

 

8.      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.

 

9.      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.

 

10.  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.”

 

11.  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.

 

12.  It is found that, by letter dated April 29, 2010, the complainant forwarded payment of $16.00 in the form of a money order to the respondents for the search and copy of records responsive to his requests, described in paragraphs 2 and 4, above.

 

13.  It is found that on or about May 5, 2010, the respondents provided the complainant with all records responsive to his requests described in paragraphs 4.a, 4.c, 4.d, and 4.e, above, except for six pages of signed witness statements and a one page medical examiner’s report.

 

14.  The respondents claim that the signed witness statements are exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

15.  Section 1-210(b)(3)(B), G.S., 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...signed statements of witnesses....

 

16.  It is found that the signed witness statements are 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.

 

17.  It is concluded that the signed witness statements are permissively exempt from disclosure, and therefore, the respondents did not violate §1-210(a), G.S., with respect to such records. 

 

18.  The respondents claim that the medical examiner’s report is exempt from disclosure pursuant to §19a-411, G.S. 

 

19.  Section 19a-411, G.S., states, in relevant part:

 

(b)  The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the  [Commission on Medicolegal Investigations] (emphasis added).

 

20.  It is found that the copy of the medical examiner’s report retained by the respondents constitutes a record of the chief medical examiner within the meaning §19a-411, G.S.  Because the request for such records was made to the respondents and not to the Office of the Chief Medical Examiner, as required by §19a-411, G.S., it is found that the respondents may not provide such records to the complainant.  See Docket #FIC 2006-374, Burton Weinstein v. Commissioner, State of Connecticut, Department of Public Safety.

 

21.  Consequently, it is concluded that the respondents did not violate the FOI Act when they withheld the medical examiner’s report from the complainant.

 

22.  With respect to the request described in paragraph 4.b, above, it is found that the respondents do not maintain or keep on file copies of the records described therein.  Therefore, it is concluded that the respondents did not violate the disclosure provisions of §1-210(a), G.S., with respect to the request described in paragraph ­4.b, above.

 

23.  With respect to the request described in paragraph 4.f, above, the respondents contend that they attempted to provide the complainant with a CD disk containing photographs on several occasions.  At the hearing, the respondents stated that one copy of the photo CD disk was directly sent to the complainant, which was returned to the respondents by the Department of Correction, and two copies were sent to the complainant’s attorney.  The respondents were informed by the complainant’s attorney that the first disk was unreadable, and therefore, they again sent the photographs to his attorney a second time.  The respondents have not heard anything further from the complainant’s attorney regarding the disk or photographs. 

 

24.  It is found that the respondents provided the complainant with records responsive to the complainant’s request described in paragraphs 4.f, above, and therefore, it is concluded that the respondents did not violate §1-210(a), G.S., with respect to such request. 

 

25.  With respect to the request described in paragraph 4.g., above, the respondents contend that they attempted to provide the complainant with copies of the requested records on several occassions.  At the hearing, the respondents stated that copies of such records were sent once to the complainant directly, which were returned to the respondents by the Department of Correction, and twice sent to the complainant’s attorney.  The respondents have not heard anything further from the complainant’s attorney regarding such records.

 

26.  It is found that the respondents provided the complainant with records responsive to the complainant’s request described in paragraph 4.g, above, and therefore, it is concluded that the respondents did not violate §1-210(a), G.S., with respect to such request.

 

 

            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 March 23, 2011.

 

__________________________

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:

 

David Weaving #161065

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT  06080

 

Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of Public Safety

c/o Stephen R. Sarnoski, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-238/FD/cac/3/28/2011