FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 18, 2010, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondents’ Motion to Dismiss is denied for the reasons stated below.

 

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 May 10, 2010, and filed with the Commission on May 11, 2010, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with their request for records described in paragraph 7, below.

 

3.  The respondents contend that the Commission lacks subject matter jurisdiction to hear the complainants’ appeal for the following reasons:

 

a.       “[The respondents have] provided complainants…. with copies of all electronically-stored information within their possession and responsive to complainants’ underlying, May 3, 2010 FOI request;” and

 

b.      “[N]o other practical relief is available to complainants in this matter under the provisions of the Connecticut Freedom of Information Act, General Statutes §§ 1-200 et seq., to which the jurisdiction of this Commission is confined.”[1]

 

4.  Section 1-206(b)(1), G.S., provides, in relevant part:

 

Any person denied the right to inspect or copy records under section 1-210 or …. denied any other right conferred by the Freedom of Information Act may appeal there from to the Freedom of Information Commission, by filing a notice of appeal with said commission.

 

5.  It is found that the complaint in this matter alleges a denial of the right to obtain electronic copies of records under the FOI Act.

 

6.  It is concluded that the complainants have alleged a denial of a right conferred by the FOI Act, within the meaning of §1-206(b)(1), G.S., and therefore, the Commission has jurisdiction to entertain the complaint.

 

7.  It is found that, by letter dated May 3, 2010, the complainants renewed their December 3, 2009 request to the respondents for copies of the following records related to an automobile accident involving an officer of the respondents and the complainants’ son:

 

a.  “All messages sent by or received, including personal mobile telephones, any medium, radio, telephone, text, computer, email, by any employee of the police department between the hours 11:00 p.m. on June 12, 2009 and 3:00 a.m. June 13, 2009;” and

 

b.  “Any videos in the possession of the police department showing usage of police department vehicles from June 12, 2007 through June 12, 2009 including any images taken from computer websites such as facebook.”

 

8.  It is found that the respondents provided the complainants with records responsive to their request described in paragraph 7.a., above.

 

9.  At the hearing on this matter, the parties stipulated that the only records that remain at issue in this complaint are electronic video records described in paragraph 7.b., above (“the requested records”).

 

10.  The complainants maintain that the respondents violated the FOI Act by failing to disclose the requested records.  The complainants also maintain that the respondents “acted in a negligent manner” when they intentionally destroyed portions of requested records and failed to take reasonable precautions to “preserve and protect” such records.  The complainants further maintain that the FOI Commission “retains jurisdiction to impose sanctions for the [respondents’] failure to produce materials, which existed at the time the request was made.”  The complainants requested that the respondents be “sanctioned, to the maximum extent permissible by law,” for their intentional destruction of the requested records.

 

11.  The respondents maintain that while portions of the requested records were provided to the complainants, “approximately 2,463 of once responsive records were not produced [to the complainants] due to their inadvertent deletion,” which occurred after the complainants’ made their May 3, 2010 request described in paragraph 7, above.  The respondents also maintain that the complainants were provided with all electronic video records responsive to their request that are currently maintained by the respondents.  The respondents requested that their Motion to Dismiss dated October 18, 2010 be reconsidered since the FOI Commission does not have jurisdiction over the deleted records, which all parties stipulate no longer exist; therefore, no practical relief is available to the complainants.

 

12.  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.

 

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

 

[e]xcept 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 the provisions of section 1-212.

 

14.  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 . . . .”

 

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

 

16.  Section 1-211(a), G.S., provides:

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made…. 

 

17.  It is found that the requested records are electronic video records captured from a front-facing dashboard surveillance camera mounted in a police vehicle issued by the respondent department.  It is also found that the requested records are stored and maintained by the respondents on their ICOP video server and such records are managed using the respondents’ ICOP digital management system (“ICOP video database”). [2]  It is further found that the ICOP video database stores files containing metadata (data about data) and additional information specific to each video file stored on the respondents’ video server.  It is found, therefore, that the data stored on the respondents’ ICOP video server are public records maintained in a computer storage system, within the meaning of §1-211(a), G.S.

 

18.  It is found that, on December 7, 2009, the respondent Chief met with his senior staff, including the supervisors directly responsible for the ICOP video server, and reminded them of their obligation to preserve all records responsive to the complainants’ request described in paragraph 7, above.  It is also found that, by memorandum dated December 9, 2009, the respondent chief issued an order to his senior staff that all responsive records requested by the complainants in this matter be preserved prior to being purged from the respondents’ video server.  The respondent chief further assigned Captain Tracy Mooney, head of the respondents’ records division, with the task of reviewing responsive records retrieved from the video server, for information exempt from disclosure under the FOI Act.

 

19.  It is found that the respondents conducted a diligent search of their ICOP video server and identified 2,607 video records responsive to the complainants’ request described in paragraph 7.b., above.

 

20.  It is found that, on or about, June 18, 2010, the respondents’ part-time Local Area Network (“LAN”) Coordinator deleted all ICOP video records for 2008 and 2009, from the respondents’ ICOP video server.  It is also found that portions of the requested records were among some of the records deleted by the respondents’ LAN Coordinator on such date (“the deleted records”).

 

21.  It is found that, in August 2010, the respondents discovered that portions of the requested records described in paragraph 20, above, were deleted from the ICOP video server when Captain Mooney instructed the respondents’ Management Information Systems (“MIS”) Liaison, Lieutenant Daniel Bothwell, to download ICOP video records from 2009.  It is also found that Lieutenant Bothwell informed Captain Mooney that the requested “icop files [had] been deleted from the [ICOP] server.”

 

22.  If is found that the respondent chief credibly testified that the investigation into the deleted video files revealed that the respondents’ LAN Coordinator, in response to a server alert notifying him that the video server was nearing capacity, was instructed by the respondents’ MIS Liaison, Lieutenant Daniel Bothwell, “to delete the video folder and leave three months of video” records on the ICOP video server.  The respondent chief also testified that the LAN Coordinator misunderstood the instructions given to him by Lieutenant Bothwell and deleted all video records for 2008 and 2009, in direct violation of the respondent chief’s order described in paragraph 18, above.

 

23.  It is found that the requested records consist of large amounts of electronic data requiring an exceptional amount of computer storage space on the ICOP video server.  It is also found that it is the practice of the respondents’ computer staff to delete video files stored on the ICOP video server after ninety days, unless instructed to do otherwise by the supervising staff of the respondent department.  It is also found that the respondents do not backup video records stored on their ICOP video server.

 

24.  It is found that video records deleted from the respondents’ ICOP video server, can sometimes, by means of computer forensic methodologies, be recovered from the video server.

 

25.  It is found that, by letter dated September 27, 2010, the respondents informed the complainants that the “majority of the archived video files from the Department’s servers were inadvertently deleted.”  The respondents also stated that they “had a computer forensic examiner attempt to locate and recover the deleted material; however, we are not optimistic that the files can be restored.”  The respondents further invited the complainants to have their own consultant or computer expert inspect the ICOP video server, to assess whether the requested video files could be restored.

 

26.  It is found that, at the time of the hearing on this matter, the respondents had provided the complainant with 144 video records of the 2,607 responsive records described in paragraph 19, above. 

 

27.  It is found, however, that there is no evidence in the record to support a finding that the requested records were destroyed in order to deliberately prevent the complainants from obtaining electronic copies of the requested video records.

 

28.  It is found, therefore, that, based upon the credible testimony at the hearing on this matter, the respondents have provided the complainants with copies of all records responsive to the request described in paragraph 7.b., above, that they maintain, with the exception of the deleted records described, above.

 

29.  However, it is also found that the respondents failed to maintain the records at issue, which records were first requested on December 7, 2009 and again on May 3, 2010, and failed to provide them promptly, to the complainant, while they still existed.

 

30.  It is therefore concluded that the respondents violated Sections 1-210(a) and 1-212(a), G.S.

 

 

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 promptness and disclosure 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 April 27, 2011.

 

 

____________________________

S. Wilson

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:

 

Susan Servin and Frank Servin

C/o R. Bartley Halloran, Esq.

Law Offices of R. Bartley Halloran

74 Batterson Park Road

P.O. Box 887

Farmington, CT 06034

 

Chief, Police Department,

City of Milford; and

Police Department, City of Milford

C/o James N. Tallberg, Esq.

Karsten, Dorman & Tallberg, LLC

8 Lowell Road

West Hartford, CT 06119

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-300FD/sw/5/2/2011