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