FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Richard Armstrong and The Norwich Bulletin,

 

                                Complainants

 

                against                   Docket #FIC 95-123

 

Colchester Police Commission and State of Connecticut,

Department of Public Safety, Division of State Police,

 

                                Respondents                        February 28, 1996

 

                The above-captioned matter was heard as a contested case on October 23 and November 28, 1995, at which times the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearings on this matter, Charles Scott Thomas, James Nardella and Mark Gendron, the subjects of the records at issue, were made parties to this complaint, and Tracy Fox and The Hartford Courant were permitted to participate as intervenors.

 

                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 1-18a(a), G.S.

 

                2.  By letter dated October 6, 1994, the complainants requested that the respondent Department of Public Safety, (hereinafter "DPS"), provide them with access to and copies of the state police internal affairs investigation records into written complaints filed by Colchester residents Phillip Inkel, Richard and Linda Verrill, and Amelia Scavetta against Colchester police officers and/or the Connecticut State Police.

 

                3.  By letter dated March 16, 1995, the respondent DPS advised the complainants that the records of two unspecified internal affairs investigations were not subject to disclosure because the investigations were still open, but that the records of two other unspecified closed investigations would be provided once reviewed by counsel.

 

#FIC 95-123                                           Page 2

 

                4.  By letter dated March 20, 1995, the respondent DPS denied the complainants' requests for the internal affairs investigation records into the Verrill and Scavetta complaints pursuant to 1-19(b)(2) and 1-19(b)(3)(G), G.S.

 

                5.  By letter dated March 14, 1995, the complainants requested that the respondent Colchester Police Commission (hereinafter "CPC") provide them with access to and copies of the state police internal affairs investigation records into complaints filed against Colchester police officers and/or the state police during the 1994 calendar year, including, but not limited to complaints filed by Richard Murzin, Phillip Inkel, Richard and Linda Verrill and Amelia Scavetta.

 

                6.  By letter dated April 3, 1995, the respondent CPC informed the complainants that it was reviewing their requests and would respond to them shortly.

 

                7.  On April 5, 1995, the respondent CPC filed a petition for a declaratory/advisory ruling with the Commission concerning the complainants' requests, which was denied by the Commission at its May 10, 1995 regular meeting.

 

                8.  By letter dated April 12, 1995, and filed April 13, 1995, the complainants appealed to the Commission and alleged that the respondents DPS and CPC violated the Freedom of Information ("FOI") Act by denying them access to the requested internal affairs investigation records.

 

                9.  It is found that in 1994 the respondent CPC received a number of civilian complaints against certain Colchester police officers, which were forwarded to the state police for internal affairs investigations.

 

                10.  It is found that the following eight internal affairs investigations were conducted by the respondent DPS as a result of the complaints referenced in paragraph 9, above:  IA# 94-042 (Murzin); IA# 94-059 (Verrill); IA# 94-060 (Inkel); IA# 94-063 (Gardner); IA# 94-064 (Scavetta); IA# 95-004 (Inkel); IA# 95-014 (Saunders); IA# 95-015 (Inkel).

 

                11.  It is found that the requested internal affairs investigation reports are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                12.  It is found that the respondent DPS provided the complainants with a copy of the IA# 95-004 records on April 7, 1995, and that the complainants withdrew that portion of their appeal as to both respondents.

 

#FIC 95-123                                           Page 3

 

                13.  It is found that to date neither respondent has provided the complainants with any of the other requested records.

 

                14.  The respondent DPS claims that only the records of the investigations conducted in response to complaints filed by Inkel, Verrill and Scavetta are responsive to the complainants' request as made to it.

 

                15.  It is found that although only the records in IA# 94-059, IA# 94-060, IA# 94-064 and IA# 95-015 are responsive to the complainants request made to the respondent DPS, all the internal affairs investigation records identified in paragraph 10, above, are responsive to the complainants' request made to the respondent CPC.

 

                16.  It is found that the respondent DPS had completed all of the subject internal affairs investigations by the date of the complainants' request, and had forwarded the requested records in stages to the CPC, with the last one, IA# 94-042, being received by the respondent CPC on March 23, 1995.

 

                17.  It is found that by letter dated March 23, 1995, the respondent CPC notified officer Thomas, officer Nardella and officer Gendron's counsel of the complainants' request.

 

                18.  It is found that by letter dated March 28, 1995, officers Thomas, Nardella and Gendron notified the respondent CPC that they objected to the disclosure of the requested reports pursuant to 1-19(b)(3)(F), G.S., because they contain uncorroborated allegations subject to destruction pursuant to 1-20c, G.S.  Apparently the reference to 1-19(b)(3)(F), G.S., is to the exemption found in 1-19(b)(3)(G), G.S.

 

                19.  It is found that the respondent CPC has no objection to the disclosure of the records but did not release them to the complainants because the subject officers had filed objections to disclosure.

 

                20.  The other respondents contend that the requested records are exempt from disclosure under 1-19(b)(2) and 1-19(b)(3)(G), G.S.  The respondent DPS also contends that although the records in IA# 94-042 were not requested of it, they are nonetheless exempt from disclosure because disciplinary proceedings against certain state police troopers had not taken place.

 

                21.  It is found that as a partial result of the requested internal affairs investigation records, officers Nardella and Thomas were suspended without pay, and resigned from their employment on April 25, 1995, while disciplinary hearings before the CPC were ongoing.

 

#FIC 95-123                                           Page 4

 

                22.  Section 1-19(b)(2), G.S., permits the nondisclosure of "personnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy."

 

                23.  It is found that the requested internal affairs investigation records constitute "similar" files within the meaning of 1-19(b)(2), G.S.

 

                24.  It is also found that the requested records, which concern alleged police misconduct, pertain to a legitimate matter of public concern.

 

                25.  It is further found that the disclosure of the requested records, some of which exonerate the subject officers, would not be highly offensive to a reasonable person.

 

                26.  It is therefore concluded that disclosure of the requested records would not constitute an invasion of personal privacy as to officers Thomas, Nardella or Gendron; and consequently, the records are not exempt from disclosure pursuant to 1-19(b)(2), G.S.

 

                27.  Section 1-19(b)(3)(G), G.S., provides that:

 

                "Nothing in [the FOI Act] shall be construed to require disclosure of (3) 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 (G) uncorroborated allegations subject to destruction pursuant to section 1-20c."  (Emphasis added.)

 

                28.  Based upon an in camera review of the requested records, it is found that they were compiled not in connection with a criminal investigation, but rather in connection with the investigation of employment-related charges brought by certain civilians against the subject officers in their capacity as police officers.

 

                29.  It is therefore concluded that the requested internal affairs investigation records are not exempt from disclosure pursuant to 1-19(b)(3)(G), G.S.

 

                30.  It is also concluded that the pendency of employment- related disciplinary proceedings against certain state police troopers does not provide an exemption to the disclosure of the requested records.

 

#FIC 95-123                                           Page 5

 

                31.  It is further concluded that the respondent CPC responded to the complainant's request in accordance with 1-20a(b) and (c), G.S., and is therefore not in violation of the FOI Act for failing to disclose the requested reports prior to the final decision in this matter, but that the respondent DPS failed to provide prompt access to the records requested of it, in violation of 1-15(a) and 1-19(a), G.S.

 

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

 

                1.  The respondent DPS shall forthwith provide the complainants with copies of the records contained in IA# 94-059, IA# 94-060, IA# 94-064 and IA# 95-015, without charge.

 

                2.  The respondent CPC shall forthwith provide the complainants with copies of the records contained in IA# 94-042, IA# 94-059, IA# 94-060, IA# 94-063, IA# 94-064, IA# 95-014 and IA# 95-015, without charge.

 

                3.  In complying with paragraph 2 of the order, the respondent CPC may redact:  the full names of minors; medical reports and references to medical reports; the dates of birth, home addresses and telephone numbers of non-parties; fingerprinting reports; and detailed polygraph reports setting forth questions and answers.

 

                4.  Henceforth, the respondent DPS shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 28, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-123                                             Page 6

 

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:

Richard Armstrong and Norwich Bulletin

66 Franklin Street

Norwich, CT 06360

 

James Nardella, Mark Gendron and Charles Scott Thomas

c/o Elliot B. Spector, Esq.

Sack, Spector and Barrett

836 Farmington Avenue

West Hartford, CT 06119-1544

 

Colchester Police Commission

c/o Richard A. Mills, Jr., Esq.

Shipman & Goodwin

One American Row

Hartford, CT 06103

 

State of Connecticut, Department of Public Safety, Division of State Police

c/o Ann E. Lynch, Esq.

Assistant Attorney General

Mackenzie Hall

110 Sherman Street

Hartford, CT 06105-2294

 

Tracy Fox

Hartford Courant

c/o Town News

200 Adams Street

Manchester, CT 06040

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission