FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Edward A. Peruta,

 

                                Complainant

 

                against                   Docket #FIC 94-118

 

Philip Dunn, Chief of Police, Rocky Hill Police Department,

 

                                Respondent                          October 12, 1994

 

                The above-captioned matter was heard as a contested case on June 7, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for purposes of hearing with Docket #FIC 94-40, Edward A. Peruta v. Curtis Roggi, Rocky Hill Town Attorney.

 

                After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

                1.  The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

                2.  By letter dated and filed April 12, 1994, the complainant appealed to this Commission alleging that on several occasions after March 28, 1994 he requested from and was denied by the respondent access to journals created by former Rocky Hill Police Chief (hereinafter "Schnabel") and investigative files on Schnabel.  The complainant also requested that the Commission impose a civil penalty upon the respondent "and/or" refer the matter to the state's attorney's office for criminal investigation.

 

                3.  At the hearing in this matter the complainant indicated that his complaint was limited to his allegation that the respondent denied him access to the journals created by Schnabel and that he is seeking access to all of the journal entries covering the period when Schnabel was Chief of the Rocky Hill Police Department (hereinafter "journals").

 

                4.  It is concluded that the requested journals constitute public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

Docket #FIC 94-118                                             Page 2

 

                5.  The Commission takes administrative notice of the case files, records and final decisions in docket #s FIC 92-213, Peruta against Shew, et al. and FIC 93-308, Peruta against Shew, et al. (hereinafter "FIC 93-308").

 

                6.  It was found in FIC 93-308 that the subject journals were previously in Schnabel's possession and were turned over by him to the town attorney sometime prior to the hearing in FIC 93-308 at the request of the town manager, following a records request for the journal covers from the complainant; and that the town attorney subsequently placed the journals in a safety deposit box leased in the town attorney's name, in violation of 1-19(a), G.S

 

                7.  It is found that on or about May 18, 1994, approximately three weeks after the date of the notice of final decision in FIC 93-308, the town attorney turned over the subject journals to the Rocky Hill Police Department where they have been maintained in the "evidence lockup" until the date of the hearing in this matter.

 

                8.  It is also found that Schnabel still has in his possession a journal containing information relating to his tenure as Chief of the Rocky Hill Police Department, from May of 1982 through January of 1984, which has yet to be turned over to the respondent.

 

                9.  The respondent has not provided the complainant with access to the requested journals, maintaining that they are exempt from disclosure pursuant to the provisions of 1-19(b)(1) 1-19(b)(2), 1-19(b)(3), 1-19(b)(4), 1-19(b)(9) and 1-19(b)(10) (a/c rel.).

 

                10.  Section 1-19(b)(1), G.S., permits the withholding of:

 

                "preliminary drafts or notes provided the public agency has determined that the public interest in witholding such documents clearly outweighs the public interest in disclosure."

 

                11.  Section 1-19(b)(2), G.S., permits the withholding of:

 

                "personnel or medical files, and similar files the disclosure of which would constitute an invasion of personal privacy."

 

                12.  Section 1-19(b)(3), G.S., permits the withholding of certain categories of law enforcement records.

 

Docket #FIC 94-118                                             Page 3

 

                13.  Section 1-19(b)(4), G.S., permits the withholding of:

 

                "records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled."

 

                14.  Section 1-19(b)(9), G.S., permits the withholding of:

 

                "records, reports, and statements of strategy or negotiations with respect to collective bargaining."

 

                15.  In relevant part, 1-19(b)(10), G.S., permits the withholding of "...communications privileged by the attorney-client relationship."

 

                16.  It is found however, despite the respondent's claims concerning the exemptions set forth in paragraphs 10 through 15, above, that as of the date of the hearing in this matter, neither the respondent nor his counsel personally reviewed the subject journals.

 

                17.  In support of his denial of access to the requested journals, the respondent relied solely upon the testimony of Schnabel who, at the hearing on this matter, conceded that portions of the journals were not exempt from disclosure. Schnabel also stated that he had no objection to any counsel for the town of Rocky Hill conducting a review of the requested journals, redacting those portions falling within the exemptions claimed in paragraph 9, above, and then disclosing the non-exempt portions to the complainant.

 

                18.  It is found that the respondent, having failed to review the subject journals in a good faith attempt to reasonably assess their disclosability, either personally or through his counsel, failed to prove the applicability of the exemptions claimed in paragraph 9, above.

 

                19.  It is therefore concluded that the respondent violated the disclosure provisions of 1-19(a), G.S., by failing to provide the complainant with access to the requested journals.

 

                20.  It is further found that the respondent's violation of the rights conferred by 1-19(a), G.S., was without reasonable grounds.

 

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

 

                1.  The respondent shall forthwith provide the complainant with access to the requested journals, described in paragraphs 2 and 3, of the findings, above.  This order is limited to

 

Docket #FIC 94-118                                             Page 4

 

disclosure of those journals containing information relating to Schnabel's tenure as the Chief of the Rocky Hill Police Department, from May of 1982 until January 3, 1992, when Schnabel was placed on administrative leave.

 

                2.  Prior to providing the complainant with the access described in paragraph 1 of the order, above, the respondent shall provide Schnabel an opportunity to review the requested journals and redact only those portions constituting communications privileged by the attorney-client relationship, that were from a client of his, while acting in his capacity as an attorney at law.

 

                3.  In complying with paragraph 1 of the order, above, the respondent may redact any medical information pertaining to Schnabel and any information that would reveal: the identities of confidential informants, information to be used in a prospective law enforcement action if prejudicial to such action, investigatory techniques not otherwise known to the general public, names and addresses of any victims of sexual assault, uncorroborated allegations subject to destruction pursuant to 1-20c, G.S. and strategy with respect to collective bargaining.

 

                4.  The Commission imposes a civil penalty against the named respondent in the amount of two hundred dollars ($200.00).  The aforementioned civil penalty shall be remitted to the Commission within thirty days of the date of the mailing of the notice of final decision in this matter.

 

Approved by Order of the Freedom of Information Commission at its special meeting of October 12, 1994.

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission

 

Docket #FIC 94-118                                             Page 5

 

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:

EDWARD A. PERUTA

38 Parish Road

Rocky Hill, CT 06067

 

PHILIP DUNN, CHIEF OF POLICE, ROCKY HILL POLICE DEPARTMENT

c/o Michael J. Gustafson, Esq.

Halloran & Sage

225 Asylum Street

Hartford, CT 06103

 

                                                                             

                                                Debra L. Rembowski

                                                Clerk of the Commission