FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

M. Jeffrey Spahr,

Complainant

against Docket #FIC 88-434

State of Connecticut Department of Public Safety, Division of State Police,

Respondent July 26, 1989

The above-captioned matter was heard as a contested case on December 6, 1988, at which time the complainant, the respondent and James Dolan 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 respondent is a public agency within the meaning of §1-18a(a), G.S.

2. By letter dated October 3, 1988 the complainant requested of the respondent disclosure of any and all documents regarding the application of James Dolan for a position with the respondent.

3. By letter from the Office of the Attorney General dated October 14, 1988, the respondent denied the complainant's request, asserting that the records were exempt from disclosure pursuant to §§1-19(b)(2) and 1-19b(b), G.S.

4. Section 1-19b(b) provides in pertinent part:

Nothing in sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, shall be deemed in any manner to (1) affect ... the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state ....

Docket #FIC 88-434 Page 2

5. By letter of complaint dated October 26, 1988 and received by the Commission on October 28, 1988, the complainant appealed to the Commission, alleging that his request had not been answered.

6. By letter to the respondent dated November 15, 1988, counsel for the Connecticut Council of Police Unions #15 objected to the release of the requested records.

7. At the hearing, the hearing officer granted the request of Dolan to be designated as a party in this case.

8. It is found that the records requested by the complainant are retained by the respondent, and consist of a written application and the results of an agility test, an oral interview, a polygraph examination, and a background investigation, all compiled in connection with determining whether the respondent would hire Dolan.

9. It is concluded that the requested records are public records within the meaning of §1-18a(d), G.S.

10. It is found that Dolan was employed by the Norwalk Police Department in 1980.

11. It is found that Dolan's employment was terminated in 1982 after his arrest on certain criminal charges in 1981 and a subsequent hearing by the Norwalk Police Commissioner's Trial Board.

12. It is found that Dolan filed a still pending grievance against the Norwalk Police Department with the State of Connecticut Board of Mediation and Arbitration, seeking his reinstatement (the "arbitration").

13. It is therefore concluded that Dolan is a party to an administrative proceeding within the meaning of §1-19b(b)(1), G.S.

14. It is found that Dolan also filed a still pending civil action against the City of Norwalk in U.S. District Court, District of Connecticut, alleging discrimination in his termination (the "civil action").

15. It is also found that the civil action has been stayed pending the outcome of the arbitration.

16. It is concluded that Dolan is a litigant in the civil action within the meaning of §1-19b(b)(1), G.S.

17. It is found that the complainant represents the City of Norwalk and the Norwalk Police Department in the arbitration and the civil action.

Docket #FIC 88-434 Page 3

18. It is found that the complainant seeks the subject records for the principal purposes of defending the City and the Police Department in the civil action, and in supporting the Police Department's termination in the arbitration.

19. It is found that §1-19b(b)(1) should be interpreted to foster a policy of comity in cases in which records are, or may be, requested under the discovery rules of another tribunal and also requested under the disclosure provisions of the Freedom of Information Act.

20. It is also found that it would be more appropriate for the tribunals in the arbitration and the civil action to decide the matters before them under their own discovery rules, in order to avoid the possibility of conflicting decisions.

21. Accordingly, under the circumstances of this case, the Commission in its discretion declines to decide the matter before it under the disclosure provisions of the Freedom of Information Act.

22. It is concluded that it is not necessary to decide whether the requested records are exempt from disclosure under §1-19(b)(2), G.S.

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

1. The complaint is hereby dismissed.

Docket #FIC 88-434 Page 4

PURSUANT TO 4-180(c) C.G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

M. JEFFRY SPAHR, ESQ.

City Hall, P. O. Box 798

Norwalk, CT 06856-0798

JAMES DOLAN, C/O H. JAMES HASELKAMP, JR. ESQ.

36 State Street, P. O. Box 265

North Haven, CT 06473

STATE POLICE, C/O MARGARET QUILTER CHAPPLE, ESQ.

Assistant Attorney Genera., MacKenzie Hall

100 Sherman Street

Hartford, Ct 06105

Approved by order of the Freedom of Information Commission at its regular meeting of July 26, 1989.

Karen J. Haggett

Clerk of the Commission