FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 17, 2011, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that by email dated July 27, 2010, the complainants made a request for a copy of the following records: “the case file, investigative documents and reports concerning the state police investigation numbered 1000044775 that included allegations by Tracy Swain of Stonington against Stonington First Selectman Edward Haberek.”

 

3.       It is found that, by letter dated August 11, 2010, the respondents acknowledged the complainants’ request.  It is further found that in their acknowledgement letter, the respondents informed the complainants that the requested records were exempt from disclosure pursuant to 1) §1-210(b)(2), G.S.; 2) §1-210(b)(3)(B), G.S.; and 3) §1-210(b)(3)(G), G.S., and that accordingly the complainants’ request for records was denied. 

 

4.      By letter dated August 31, 2010 and filed September 1, 2010, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying their request for the records.  

 

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 . . . (3) receive a copy of such records in accordance with section 1-212.

 

7.      Section 1-212(a)(1), 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 the respondents maintain the records described in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

9.      At the hearing on this matter, the complainants testified that the requested records pertain to an investigation which began when Tracy Swain alleged that the First Selectman of the Town of Stonington sent her a pornographic photograph.  The complainants further testified that this photograph was sent to Ms. Swain by the First Selectman in the course of Ms. Swain’s and the First Selectman’s Facebook relationship.  The complainants testified that Ms. Swain brought her allegations to the Stonington Police Department, which department in turn requested that the State Police conduct the investigation. 

 

10.  The respondents testified that the requested records consist of uncorroborated allegations of criminal conduct; signed witness statements; and records that if disclosed would be invasive of personal privacy. 

 

11.  On March 3, 2011, the respondents submitted the records described in paragraph 2, above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  The in camera records submitted consist of the following three categories of records:  1) Facebook communications; 2) telephone company records, including such information as the time, place and duration of certain telephone calls; and 3) State Police investigative reports, including applications for search warrants.  Such in camera records shall be identified at IC-2010-549-01 through IC-2010-549-420. 

 

12.  The respondents contend that all of the in camera records submitted in this case—to wit, IC-2010-549-01 through IC-2010-549-420, are exempt pursuant to §1-210(b)(3)(G), G.S.  

 

13.  Section 1-210(b)(3)(G), G.S., provides that nothing in the FOI Act shall require disclosure of the following:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of a crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

14.  Section 1-216, G.S., provides as follows:

 

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. 

15.  After a 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 records were compiled in connection with the detection or investigation of crime.

 

16.   It is also found that disclosure of the in camera records would not be in the public interest because it would result in the disclosure of uncorroborated allegations subject to destruction pursuant to §1-216, G.S. 

17.  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 #FIC 2006-049, 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.).

 

18.   More specifically, in this case it is found that, subsequent to Ms. Swain reporting what she believed to be a crime to the Stonington Police Department, the Stonington Police Department requested that the State Police conduct a criminal investigation into the allegations.

 

19.  It is found that the State Police investigated the allegations made by Ms. Swain.  It further found that, as part of the investigation, the State Police obtained search warrants for the First Selectman’s town computer and town Blackberry.  It is further found that the State Police obtained a search warrant for certain Facebook communications. 

 

20.  It is found that the in camera records submitted in this case resulted solely from the criminal investigation into Ms. Swain’s criminal allegations.    

 

21.  It is further found that, while the records have not been destroyed, the respondents’ criminal investigation has been closed for approximately one year.  It is found that, when this case was closed, there was no indication that a crime had been committed.  It is further found that this indication has not changed.  It is therefore found that the in camera records are subject to the destruction provisions of §1-216, G.S.

 

22.  Based on the forgoing, it is concluded that the respondents did not violate the FOI Act by withholding the in camera records from the disclosure. 

 

23.  Given the conclusion in paragraph 22, above, it is unnecessary to address the respondents’ additional contentions that the requested records are exempt from disclosure pursuant to §§1-210(b)(2) and 1-210(b)(3)(B), G.S.

 

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

            1.  The complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 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:

 

Joe Wojtas and the

New London Day 

203 North Main Street

Stonington, CT 06378

 

Commissioner, 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

110 Sherman Street

Hartford, CT 06105

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-549FD/sw/7/15/2011