FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                                         FINAL DECISION

 

Kevin Donovan and Greenwich Time,

 

                        Complainants

 

            against                                                       Docket #FIC 87-173

 

Greenwich Police Department and Chief, Greenwich Police Department,

 

                        Respondents                                             May 25, 1988

 

            The above-captioned matter was heard as a contested case on July 29, 1987, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint, following which the matter was continued to a later date.  Hearings scheduled for September 22, 1987, October 27, 1987, December 8, 1987, December 29, 1987 and January 5, 1988 were successively rescheduled due to the unavailability of one or more participants.  The continued hearing was finally held on March 2, 1988.

 

            After consideration of the entire matter, the following facts are found:

 

            1.         The respondents are public agencies within the meaning of §1-18a(a), G.S.

 

            2.         By letter dated May 19, 1987 the complainants made a request of the respondents for "a copy of the report on the Matthew Margolies murder investigation prepared for your department by Lieutenant Commander Vernon Geberth of the New York City Police Department."

 

            3.         By letter dated May 21, 1987 the respondent chief denied the complainants' request, citing §§1-19(b)(3)(B) and 1-19(b)(3)(C).

 

            4.         By letter of complaint filed with the Commission on June 17, 1987 the complainants appealed the respondents' denial of their request for records.

 

            5.         It is found that the Matthew Margolies case involves the murder, in 1984, of a 13 year-old boy.  As of the date of hearing,, the murder was unsolved.

 

Docket #FIC 87-173                                                                                                 Page Two

 

            6.         It is found that the report in question ("the Geberth report") analyzes the respondent department's handling of the Margolies investigation and was commissioned by Thomas Keegan, the chief of the respondent department at the time of the Margolies murder.  Vernon Geberth, an expert in homicide investigations, conducted his review as a private consultant, not as a member of any police department.

 

            7.         The report, for which the Town of Greenwich paid $1,000, is between 20 and 25 pages long, and was submitted in January, 1986.

 

            8.         The respondents claim that the complainants have failed to establish a particularized need for disclosure of the Geberth report and that disclosure of the report is, therefore, not required.

 

            9.         It is found that nothing in the Freedom of Information Act requires a complainant to establish a need, particularized or otherwise, for disclosure of a document.

 

            10.       The Commission, therefore, rejects the respondents' claim with respect to the alleged link between the need for a document and its disclosability.

 

            11.       The respondents further claim that the Geberth report was made on a confidential basis and that release of the report might make it more difficult to solicit similar reports in the future.

 

            12.       It is found that Mr. Geberth's alleged expectation of confidentiality with respect to his report to the respondents does not affect the disclosability of the document under the Freedom of Information Act.

 

            13.       The respondents also claim that the report is exempt from disclosure pursuant to §1-19(b)(3)(C), G.S. on the ground that disclosure of the report would not be in the public interest because it would result in the disclosure of investigatory techniques not otherwise known.

 

            14.       The respondents further claim that the report is exempt from disclosure pursuant to §1-19(b)(3)(B), G.S. on the ground that disclosure of the report would not be in the public interest because it would result in the disclosure of information to be used in a prospective law enforcement action, which disclosure would be prejudicial to such action.

 

Docket #FIC 87-173                                                                                                 Page Three

 

            15.       It is found that the report in question is a record of a law enforcement agency not otherwise available to the public, which record was compiled in connection with the detection or investigation of a crime.

 

            16.       It is further found that the Geberth report is not co-extensive with the respondents' investigative file concerning the Margolies murder.  Rather, the report reviews and comments upon the respondent department's investigation.

 

            17.       It is found that the respondent failed to prove that the Geberth report, if disclosed, would reveal investigatory techniques not otherwise known to the general public, within the meaning of §1-19(b)(3)(C), G.S.

 

            18.       It is concluded that the Geberth report is not exempted from disclosure by §1-19(b)(3)(C), G.S.

 

            19.       It is found that Mr. Geberth was provided access to the complete file on the Margolies investigation.  The Geberth report refers to evidence gathered during the course of the investigation, which evidence is deemed by the respondents to be significant in any law enforcement action which may be taken in connection with the case.

 

            20.       It is found that the investigation of the Margolies murder is an active one.  As of the date of the first hearing in this matter, two detectives and a supervisor were assigned to the case, and individuals were interviewed in connection with the investigation within one month prior to such first hearing.

 

            21.       It is concluded that although no law enforcement action has been taken against any individual responsible for the Margolies murder, such an action is being pursued and is in no way precluded by the lapse of time since the date of the murder.

 

            22.       It is found that to the extent the Geberth report contains information concerning the Margolies investigation, the disclosure of which would be prejudicial to a prospective law enforcement action in such matter, such information is exempt from disclosure pursuant to §1-19(b)(3)(B), G.S.

 

            23.       The Commission notes that the purpose of the Geberth report was to review the respondent department's investigation of a murder.  To the extent that the report's analysis of the respondent department's performance is distinguishable and separable from a review and analysis of the evidence gathered, such information is not exempt from disclosure pursuant to §1-19(b)(3)(B), G.S., and is disclosable.

 

Docket #FIC 87-173                                                                                                 Page Four

 

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

 

            1.         The respondents forthwith shall provide the complainants with a copy of the Geberth report, as more fully described at paragraph 6 of the findings, above.

 

            2.         In complying with paragraph 1 of the order, above, the respondents may mask or delete information exempted from disclosure pursuant to §1-19(b)(3)(B), G.S.

 

            Approved by order of the Freedom of Information Commission at its special meeting of May 25, 1988.

 

 

                                                                                                 

                                                                             Catherine H. Lynch

                                                                             Acting Clerk of the Commission