FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Ray A. Cooke,
Complainant,
against Docket
#FIC 88‑365
Norwalk Police Department,
Respondent December
20, 1988
The above‑captioned matter was heard as a contested
case on October 24, 1988, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. This case
was consolidated and heard simultaneously with Docket #FIC 88‑406.
After consideration of the entire record, the following
facts are found:
1. The respondent
is a public agency within the meaning of §1‑18a(a), G.S.
2. By letter
dated August 30, 1988, the complainant requested the respondent provide him
with access to or copies of the respondent's internal affairs investigation #87‑016‑IA.
3. By letter
dated and filed with the Commission on September 9, 1988, the complainant
appealed to the Commission, alleging the denial of his request.
4. The respondent
claims that the complainant cannot use the Freedom of Information Act to
circumvent ongoing federal court discovery procedures concerning the requested
records. The respondent further claims
that the requested records are exempt from disclosure under §§1‑19(b)(2),
1‑19(b)(4) and 1‑19(b)(10), G.S.
In addition, the respondent claims the complainant filed this complaint
with the Commission in retaliation for police action at the complainant's
business and requests the imposition of a civil penalty against the
complainant.
5. At the
hearing, the complainant alleged the respondent failed to comply with the
Commission's order in Docket #FIC 88‑76 and requested the imposition of a
civil penalty against the respondent and respondent's counsel.
6. It is found
that the complainant and his brother are plaintiffs in Civil No. B88 368, a
case pending in the United States District Court, District of Connecticut.
Docket #FIC 88‑365 Page
Two
7. It is found
that the respondent, the respondent's police chief, and the detective who is
the subject of the investigation in question are defendants in that same case.
8. It is found
that on August 9, 1988, the complainant, as plaintiff in the federal case,
addressed a set of interrogatories to the respondent's police chief which
included a request for the production of all documentation of any complaints
about the detective, "including the results of any and all investigations,
discipline and penalties arising from such complaints."
9. It is found
that on August 18, 1988, the respondent's police chief, as defendant in the
federal suit, objected to the request for production.
10. Thus it is
concluded that at the time the complainant requested the records of the
investigation, and at the time the complainant appealed to the Commission, the
records were the subject of a discovery dispute in litigation brought by the
complainant in District Court.
11. Since the
question of whether the respondent should disclose the requested records to the
complainant was properly before the District Court at the time of the
complainant's appeal to the Commission, as a matter of policy the Commission
extends full comity to the decision of the District Court on that issue.
12. The
Commission notes that it therefore need not address the other claims of the
respondent and declines to impose a civil penalty against the complainant.
13. The
Commission also notes that it cannot here address the complainant's allegations
as to non‑compliance with the order in Docket #FIC 88‑76, as it
goes beyond the scope of the written complaint in this matter. The Commission declines to impose a civil
penalty against the respondent or its counsel at this time.
The following order of the Commission is hereby
recommended on the basis of the record concerning the above‑captioned
complaint:
1. The complaint
is hereby dismissed.
Approved by order of the Freedom of Information
Commission at its special meeting of December 20, 1988.
Catherine
H. Lynch
Acting
Clerk of the Commission