Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by FINAL
DECISION
Tracey Thomas and The Hartford
Courant,
Complainants
against Docket
#FIC 1996-153
Legal Affairs Unit, State of Connecticut,
Department of Public Safety,
Respondent November
20, 1996
The
above-captioned matter was heard as a contested case on August 20, 1996, at
which time the complainants and the respondent appeared, stipulated to certain
facts and presented testimony, exhibits and argument on the complaint. At the hearing, Trooper Benedict Liberatore
requested to be made a party respondent, which request was granted by the
undersigned hearing officer.
After
consideration of the entire record, the following facts are found and conclusions
of law are reached:
1. The respondent Department of Public Safety
(hereinafter “DPS”) is a public agency within the meaning of §1-18a(a), G.S.
2.
It is found that in early April 1996, the complainants requested that
the respondent DPS provide them with a copy of “the internal affairs
investigation into a shooting incident involving Trooper Benedict Liberatore.”
3.
It is found that the respondent DPS received the complainants’ request
on April 10, 1996.
4.
It is found that by letter dated April 12, 1996, the respondent DPS
informed respondent Liberatore of the complainants’ request, and provided him
with a blank form to be utilized if he objected to the disclosure of the
requested internal affairs investigation.
5.
It is found that on April 12, 1996, the respondent Liberatore executed
and returned the objection form to the respondent DPS, which contained a
statement that he had a good faith basis for his objection and it was not
interposed for purposes of delay.
6.
By letter dated April 23, 1996, the respondent DPS informed the
complainants that it was unable to comply with their request because respondent
Liberatore had objected to the release of the requested internal affairs
investigation, and because the investigation contained exempt information which
would have to be redacted prior to disclosure.
7.
By letter dated May 1 and received May 6, 1996, the complainants
appealed to the Commission alleging that the respondent violated the Freedom of
Information (“FOI”) Act by failing to comply with their request.
8.
It is found that the respondent DPS maintains the requested internal
affairs investigation (hereinafter “I.A. 95-062”) and that it is a public
record within the meaning of §§1-18a(d) and 1-19(a), G.S.
9. The
respondents submitted I.A. 95-062 for in camera inspection, and
categorized it in forty sub-parts for the purpose of identifying the claimed
exemptions to disclosure.
10. The
respondents maintain that parts 1-9 and 33-35 of I.A. 95-062 are exempt from
disclosure pursuant to §1-19(b)(2), G.S., because
disclosure would constitute an invasion of respondent Liberatore’s privacy.
11. Sections
1-9 of I.A. 95-062 are comprised of: internal memoranda concerning the subject
investigation; an executive summary; notification and complaint against
personnel forms; the investigative report; action taken by the investigating
officer; a summary of the investigation; and an exhibits index. Sections 33-35 consist of correspondence
between the States Attorney’s office and DPS, and Trooper Liberatore’s firearm
range qualifications.
12. 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.”
13. The two-part test for the application of the
§1-19(b)(2), G.S., exemption
first requires a finding that the record at issue constitutes a personnel,
medical or similar file and, if so, then a finding that disclosure would
constitute an invasion of personal privacy.
Disclosure only constitutes an invasion of personal privacy when the
information sought does not pertain to a legitimate matter of public concern
and is highly offensive to a reasonable person. Perkins v. Freedom of Information Commission, 228 Conn.
158 (1993).
14. It is found that I.A. 95-062, including the
portions identified in paragraph 11, above, is similar to a personnel file with
respect to respondent Liberatore.
15. It is found that the internal investigation
of an on-duty shooting by a police officer is a legitimate matter of public
concern.
16. Although it is not necessary for the
Commission to consider whether disclosure of the report would be highly
offensive to a reasonable person, it is found that I.A. 95-062 not only
exonerates respondent Liberatore of any responsibility for the shooting
incident, but commends him for the courageous performance of his assigned
responsibilities. Under those
circumstances, it is difficult to imagine how disclosure of the report would be
highly offensive to a reasonable person.
17. Accordingly, it is concluded that the
portions of the report identified in paragraph 11, above, are not exempt from
disclosure pursuant to §1-19(b)(2), G.S.
18. It is further found that due to the long
line of cases mandating disclosure of internal affairs investigation reports,
the respondent could not have reasonably believed that disclosure of I.A.
95-062 would legally constitute an invasion of personal privacy. Accordingly, the respondent did not properly
invoke the mandatory stay from disclosure until so ordered by this Commission,
under §1-20a(c), G.S.
19. The respondents next claim that sections 12,
20 and 24 of I.A. 95-062 are exempt from disclosure pursuant to §1-19(b)(3)(B), G.S.; and
that sections 10, 11, 13, 14, 16, 18, 19, 21-23, 25-32, and 36-40 of I.A.
95-062 are exempt from disclosure pursuant to §1-19(b)(3)(D), G.S.
20. The sections identified in paragraph 19,
above, contain exhibits to I.A. 95-062, including interviews, signed statements
of witnesses, an NCIC computer print-out, incident cards, search warrants, a
map and sketch report, video and photograph reports, vehicle inventory and
evidence reports, work schedules, and seized and issued weapons forms.
21. Sections 1-19(b)(3)(B) and (D), G.S., permit
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 … (B) signed statements of witnesses …[and] (D) investigatory techniques not
otherwise known to the general public. [Emphasis added.]
22. It is
found that I.A. 95-062 is an investigation into alleged violations of administrative regulations, and was not
compiled in connection with the detection or investigation of crime. Accordingly, the exemptions to disclosure
permitted by §§1-19(b)(3)(B) and (D), G.S.,
do not apply to record at issue.
23.
Furthermore, it is found that the respondents failed to prove that
disclosure of the requested internal investigation report would result in the
disclosure of investigatory techniques not otherwise known to the general
public, within the meaning of §1-19(b)(3)(D), G.S.
24. The
respondent also claims that sections 15 and 17 of I.A. 95-062, which consist of
the shooting victim’s driver history and a prior accident report, are exempt
from disclosure pursuant to §14-10(c), G.S.
25. Section 14-10(c), G.S., provides:
(c) The commissioner [of the department of motor
vehicles] shall not disclose operator license information or driver history or
permit the inspection or copying of any record containing such information or
history, except at the request of (1) any federal, state or local agency,
including any court or law enforcement agency in carrying out its functions,
(2) any private person or entity acting on behalf of a federal, state or local
agency in carrying out its functions or (3) any person or entity who supplies
the name and correct address of the operator about whom he seeks such
information or history. Such
disclosure, inspection or copying shall be at the main office of the
commissioner. Any such records five
years old may be destroyed at the discretion of the commissioner.
26. It is concluded that §14-10(c), G.S., only applies
to records maintained by the Department of Motor Vehicles and does not provide
an exemption to disclosure for records maintained by the respondent DPS.
27. It is
therefore concluded that the respondent DPS violated §1-19(a), G.S., by failing to
promptly provide the complainants with a copy of the requested internal
investigation report.
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 a copy of the
requested internal investigation report, free of charge.
2.
Henceforth, the respondent DPS shall strictly comply with the provisions
of §1-19(a), G.S.
Approved
by Order of the Freedom of Information Commission at its special meeting of
November 20, 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:
Tracey
Thomas and The Hartford Courant
265
Main Street
Old
Saybrook, CT 06475
Legal Affairs Unit, State of Connecticut, Department
of Public Safety
c/o Henri
Alexandre, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
FIC 1996-153/FD/eal/120496