FIC1996-006

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Joseph Cadrain and Richard Westervelt,

Complainants

against Docket #FIC1996-006

Gerald Gore, Legal Affairs Unit, State of
Connecticut, Department of Public Safety;
and State of Connecticut, Department of
Public Safety, Division of State Police,

Respondent(s) December 11, 1996

The above-captioned matter was heard as a contested case on July 25, 1996, at which time the complainants and the respondents appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint.

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. It is found that by letter to the commanding officer of the respondent state police (hereinafter, “CSP”) Troop B, dated November 28, 1995, the complainants requested access to inspect the following:

(a) any documentation concerning an unauthorized recording by unknown persons of a private telephone conversation between the complainants on October 20, 1995 (hereinafter, “recording incident”);

(b) the duty rosters for October 20 - October 27, 1995; and

The complainants also requested in the letter a copy of the following:

(d) any forms used to file misconduct charges against CSP members.

3. It is found that by letter dated December 1, 1995, the commanding officer of the CSP western district headquarters informed the complainants that an internal investigation of the recording incident was underway, that the recording incident had been referred to the state’s attorney’s office for investigation and possible prosecution, and that the complainants’ records request had been forwarded to the legal affairs unit.

4. It is also found that by letter dated December 5, 1995, the respondent Gore informed the complainants that they may be charged a fee for an “item or service connected with [their] request,” and that in addition to the remittance of any fees due, they would also have to provide written assurance that “[the requested] information [was] not for use in pending litigation to which the state is a party.”

5. It is further found that by letter dated December 8, 1995, the complainants informed the respondent Gore that their records request was primarily for access to inspect records and that the only copy requested was for forms used to file misconduct charges against CSP officers. Additionally, the complainants stated in the letter that the information requested was not for use in pending litigation to which the state is a party, and asked for prompt compliance with their request.

6. It is further found that by letter dated December 15, 1995, the respondent Gore advised the complainants that the requested recording incident records were the subject of an ongoing criminal investigation and therefore exempt from disclosure pursuant to §1-19(b)(3)(C), G.S.

7. By letter of complaint dated January 3, 1996, and filed with this Commission on January 9, 1996, the complainants appealed the respondents’ denial of their November 28, 1995 records request, and requested the imposition of a civil penalty against the named individual respondent.

8. It is found that by letter dated April 11, 1996, the respondents advised the complainants that the requested duty rosters, disciplinary rules, policies and procedures were available for their inspection and copying, but that no decision regarding the disclosure of the investigation records had been made because the investigation was ongoing.

9. It is also found that sometime prior to the hearing on this matter, the respondents provided the complainants with a copy of the requested misconduct forms.

10. It is further found that the respondents failed to make any claim of exemption with respect to the requested duty rosters, disciplinary rules, policies and procedures or misconduct forms.

11. At various times during the proceedings in this matter, the respondents claimed that the requested recording incident records described in paragraph 2(a) of these findings, above, were exempt from public disclosure pursuant to §§1-19(b)(1), (2) and (3)(C), G.S.

12. Section 1-19(a), G.S., in relevant part provides:

[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 inspect such records promptly during

regular office or business hours or to receive a copy of such records in

accordance with the provisions of section 1-15.

13. It is found that the requested records are public records within the meaning of §1-19(a), G.S.

14. Section 1-15(a), G.S., in relevant part provides “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

15. It is therefore concluded that the respondents violated the provisions of §§1-19(a) and 1-15(a), G.S., by failing to promptly provide the complainants with access to inspect the requested duty rosters, disciplinary rules, policies and procedures and by failing to promptly provide the complainants with a copy of the requested misconduct forms.

16. It is found that the respondent Gore’s denial of prompt access to those public records described in paragraphs 2(b), (c) and (d) of the findings, above, was without reasonable grounds, within the meaning of §1-21i(b)(2), G.S.

17. It is also found that the recording incident records, as described in paragraph 2(a) of the findings, above, are contained in the CSP’s internal affairs investigation file #96-02 (hereinafter, “IA#96-02”), which file was received in evidence on August 1, 1996 as an after-filed exhibit for in camera inspection by the Commission, and which file consists of 89 pages divided into seven sections identified as: (a) Executive Summary; (b) Complaint Against Personnel; (c) Notification To Personnel; (d) Investigative Report; (e) Action Taken; (f) Summary; and (g) List of Exhibits. Those pages identified as IC96-6-35 and IC96-6-36, however, are irrelevant to the request as described in paragraph 2(a) of the findings, above.

18. The respondents claim that the contents of IA#96-02 are exempt from public disclosure under §1-19(b)(1), G.S., which permits the nondisclosure of preliminary drafts or notes “provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

19. Section 1-19(c)(1), G.S., however, provides that notwithstanding the provisions of §1-19(b)(1), G.S., disclosure shall nonetheless be required of “interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated.”

20. It is found that the respondents failed to prove that any part of IA#96-02 is a preliminary draft or note or that the respondents had, in fact, determined that the public interest in withholding any part of IA#96-02 clearly outweighs the public interest in disclosure, as required by §1-19(b)(1), G.S.

21. It is also found that IA#96-02 consists of inter-agency or intra-agency memoranda, letters, opinions, recommendations and reports comprising part of the process by which governmental decisions and policies are, or were, formulated, within the meaning of §1-19(c)(1), G.S., and that IA#96-02 is not otherwise exempt pursuant to that statutory provision.

22. It is therefore concluded that §1-19(b)(1), G.S., does not exempt the contents of IA#96-02 from public disclosure.

23. The respondents also claim that the contents of IA#96-02 are exempt from public disclosure under §1-19(b)(2), G.S., which permits the nondisclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

24. The test governing the applicability of the §1-19(b)(2), G.S., exemption is set forth in Perkins v. FOIC, 228 Conn. 158 (1993), as follows:

First, [the respondents] must establish that the files in question are

within the categories of files protected by the exemption, that is,

personnel, medical or similar files. Second, [the respondents] must show that

disclosure of the records would constitute an invasion of personal

privacy.

25. The Perkins decision also instructs that the “invasion of personal privacy exception of §1-19(b)(2) precludes disclosure . . . only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.”

26. It is found that the respondents failed to make the claim, or prove, that the contents of IA#96-02 have either been made part of a personnel file, or are the functional equivalent of, or similar to, a personnel file.

27. After an in camera inspection of IA#96-02, it is also found that disclosure of the contents of that file would not be highly offensive to a reasonable person and that such contents clearly pertain to a matter of legitimate public concern.

28. It is therefore concluded that the disclosure of the contents of IA#96-02 would not constitute an invasion of personal privacy within the meaning of §1-19(b)(2), G.S., and consequently the contents of that file are not exempt from public disclosure under that statutory provision.

29. It is found that by letter dated July 26, 1996 (one day after the hearing in this matter), the respondents informed the officer who is the subject of IA#96-02 that the records contained in that file “may be subject to the requirements set forth in [§1-20a, G.S.] relative to personnel or medical files and similar files” and enclosed a form entitled “Objection To The Release Of Information Believed To Be Covered By Protected Privacy Interest Pursuant to [§1-20a, G.S.]” if he wished to object to the disclosure of IA#96-02.

30. It is also found that on July 26, 1996, the officer who is the subject of IA#96-02 filed an objection to the release of that file on the grounds that there had been no final disposition of the recording incident investigation, and that he had not reviewed the file.

31. It is further found that by letter dated July 31, 1996, the respondents first advised the Commission that the officer who is the subject of IA#96-02 not only objected to the disclosure of that file, but that he wished to be heard by the Commission prior to any decision regarding disclosure of that file.

32. Section 1-21a(b), G.S., in relevant part provides:

Whenever a public agency receives a request to inspect or copy

records contained in any of its employees' personnel or medical

and similar files and the agency reasonably believes that the disclosure

of such records would legally constitute an invasion of privacy, the

agency shall immediately notify in writing (1) each employee concerned

. . . and (2) the collective bargaining representative, if any, of each

employee concerned.

33. Section 1-21a(c), G.S., in relevant part provides:

A public agency which has provided notice under subsection (b) of this

section shall disclose the records requested unless it receives a written

objection from the employee concerned. . . . Each objection filed under this

subsection shall [contain] . . a statement . . . that . . . there is good ground

support it and that the objection is not interposed for delay.

34. It is found that the respondents failed to comply with §1-21a(b), G.S., by failing to notify immediately the officer who is the subject of IA#96-02 of the complainants’ request, as required by that statutory provision.

35. It is also found that the officer who is the subject of IA#96-02 failed to invoke as the basis for his objection under §1-21a(c), G.S., that disclosure was of a personnel, medical or similar file, and that such disclosure would constitute an invasion of his privacy.

36. For the foregoing reasons, the Commission declines to reopen the hearing on this matter.

37. The respondents also claim that the requested recording incident records are exempt from public disclosure under §1-19(b)(3)(C), G.S., which in relevant part provides for the nondisclosure of 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 . . . (C) information to be used in a prospective law

enforcement action if prejudicial to such action. . . .

38. It is found that the respondents failed to prove that the contents of IA#96-02 were compiled in connection with the detection or investigation of crime, within the meaning of §1-19(b)(3)(C), G.S.; rather the records in that file were compiled in connection with an investigation of alleged misconduct by a CSP officer under that agency’s rules.

39. It is also found that by February 27, 1996, the state’s attorney’s office had concluded its own criminal investigation of the recording incident with a decision not to prosecute.

40. It is therefore concluded that §1-19(b)(3) (C), G.S., does not exempt the contents of IA#96-02 from public disclosure.

41. Consequently, it concluded that the respondent's failure to provide the complainant with access to inspect the contents of IA#96-02 violated the provisions of §1-19(a), G.S.

42. It is further found that the respondents’ violation of the complainants’ rights to inspect IA#96-02 was without reasonable grounds, within the meaning of §1-21i(b)(2).

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

1. The respondents shall forthwith provide the complainants with access to inspect the contents of IA#96-02, pages IC96-6-1 through IC96-6-34, inclusive, and IC96-6-37 through IC96-6-89, inclusive.

2. Henceforth, the respondents shall strictly comply with the public records requirements set forth in §§1-15(a) and 1-19(a), G.S.

3. Within forty-five days of the date of mailing the notice of final decision in this case, the respondent Gore shall remit to this Commission a civil penalty in the amount of one thousand dollars ($1,000.00).

4. The Commission deplores what can only be viewed as a continuing practice by the respondents, and others in the department of public safety and its division of state police, of willfully obstructing the public’s statutory right of access to public records. Indeed, it is unconscionable that the respondent Gore would inform the complainants, or any citizen, that they must pay for a copy of the forms used to file misconduct charges against CSP officers. Not only does this kind of gross dereliction of duty reflect poorly on those officials who are responsible, but it seriously threatens to undermine the public’s confidence in the respondent agencies, whose very purpose is to enforce fairly the laws of this state.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 1996.

__________________________

Elizabeth A. Leifert

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:

Joseph Cadrain and Richard Westervelt

c/o Barry Boodman, Esq.

PO Box 8158

Stamford, CT 06905-8158

Gerald Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety;
and State of Connecticut, Department of Public Safety, Division of State Police

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105-2294

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission

FIC 1996-006/FD/eal/121696