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 February 26, 1992

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.

The Commission issued a final decision in the above-captioned matter on June 1, 1988, which decision was appealed to the Superior Court by the respondents. By order of the Superior Court, the matter was remanded to the Commission for an in camera review of the disputed record, with direction after review had been completed to take such action on the complaint before it as that report and other evidence warranted in light of the pertinent provisions of the Connecticut General Statutes. The record was submitted to the Commission by the respondents, and was subsequently reviewed by the hearing officer. The respondents also sought to introduce various affidavits for in camera review, which the Commission in its discretion declined to do, the respondents having made no showing that such affidavits required in camera inspection, or that the affiants were unavailable to testify at the hearings on this matter.

After consideration of the entire matter, the following facts are found and conclusions of law are reached:

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 homicide investigation prepared for your department by Lieutenant Commander Vernon Geberth of the New York City Police Department."

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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), G.S.

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 unsolved homicide, in 1984, of a 13-year-old boy.

6. It is found that the report in question ("the Geberth report" or "Report") analyzes and critiques 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 homicide. Vernon Geberth, an expert in homicide investigations, conducted his review as a private consultant, not as a member of any police department.

7. It is found that the Report, for which the Town of Greenwich paid $1,000, is 18 pages long, and was submitted to the respondents in January, 1986.

8. It is further found that the Geberth report is not co-extensive with the respondents' investigative file concerning the Margolies homicide; rather, the report reviews and comments upon the respondent department's investigation, while revealing little of the actual content of the investigative file.

9. It is concluded that the Geberth report is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

10. The parties also stipulated that the Report 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.

11. 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.

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

13. 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.

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14. It is found that the respondents failed to prove that disclosure of the Report would make it more difficult for the respondents to solicit similar reports in the future.

15. It is also concluded that Geberth's expectation of confidentiality with respect to his Report to the respondents does not affect the disclosability of the document under any of the claimed exceptions to disclosure under the Freedom of Information Act.

16. The respondents broadly maintained at the hearing that the entire Report is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S.

17. The respondents also specifically maintain in their Index to Records Submitted for In Camera Inspection (the "Index") that particular portions of the Report are exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., although the respondents make little differentiation among the various portions of the Report.

18. The remainder of this decision will first generally analyze the applicability of 1-19(b)(3)(B) and (C) to the Report, and then characterize and analyze the various portions of the Report and apply 1-19(b)(3)(B) and (C) to those portions.

I. PERMISSIVE NONDISCLOSURE UNDER SECTION 1-19(b)(3)(B), G.S.

19. Section 1-19(b)(3)(B), G.S., provides that disclosure is not required 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) information to be used in a prospective law enforcement action if prejudicial to such action ....

20. It is concluded that, to determine the applicability of 1-19(b)(3)(B), G.S., to the portions of the Report claimed to be exempt under that section, the Commission must therefore determine, pursuant to the language of the statute:

a. whether the information contained in the Report is to be used in a prospective law enforcement action; and

b. whether disclosure of the information contained in the Report will be prejudicial to a prospective law enforcement action.

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21. It is also concluded that, to assess whether particular information contained in the Report is to be used in a prospective law enforcement action, and whether disclosure of such information would prejudice such an action, the Commission must generally assess the likelihood of any such action, determine whether the information has already been disclosed, and specifically assess the type of information and its potential for use in a law enforcement action.

A. LIKELIHOOD OF A LAW ENFORCEMENT ACTION

22. The respondents maintain that the investigation of the Margolies homicide was active as of the date of the first hearing in this matter, at which time two detectives and a supervisor were assigned to the case, and individuals were interviewed in connection with the investigation.

23. Although they offered evidence concerning activity in the Margolies investigation, the respondents offered no evidence to prove the likelihood of a prospective law enforcement action, either in the form of arrest or prosecution.

24. It is found that that the fact of the solicitation of the Geberth report suggests, and the Report itself contemplates, that the Margolies investigation was completed at the time the Report was prepared.

25. It is also found that nothing in the Report suggests a likelihood of a prospective law enforcement action in the form of additional investigation, arrest, or prosecution.

26. It is also found that eight years have elapsed since the Margolies homicide.

27. It is also found that there has been no arrest or prosecution of any individual responsible for the Margolies homicide.

28. It is concluded that although a prospective law enforcement action against the perpetrator(s) of the Margolies crime is not precluded by the lapse of time since the crime, neither is it likely.

B. LIKELIHOOD OF PREJUDICE TAKING INTO ACCOUNT OTHER DISCLOSURES

29. To determine whether disclosure of information contained in the Report would be prejudicial to a prospective law enforcement action, should one occur, the Commission must determine whether such disclosure has already been made, and, if not, assess the likelihood of prejudice from disclosure of the information.

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30. It is found that the investigation of the Margolies crime was accompanied by much publicity and disclosure of information by the respondents.

31. It is also found that the Report indicates that at least some evidence of the crime which Geberth believed should not have been publicized was in fact released to the press or disclosed to the family, friends and neighbors of the victim.

32. It is also found that the respondents did not differentiate between information in the Report already disclosed to the public and information undisclosed to the public.

33. Although the Report as a whole is not itself available to the public, it is found that information contained in many portions of the Report, including the respondents' missing person search, the fact of the homicide itself, some aspects of the initial investigation, some evidence, personnel who investigated the crime, and general principles of crime investigation, are in fact generally known to the public.

34. Although the Commission is unable to determine which specific information contained in the Report is generally known to the public and which is not, it is concluded that the evidence in this case does not support any conclusion that any information contained in the Report is unknown to the public, or that disclosure of any information in the Report would therefore be prejudicial to a prospective law enforcement action, should one occur.

C. LIKELIHOOD OF THE USE OF INFORMATION OTHER THAN EVIDENCE IN A LAW ENFORCEMENT ACTION, AND OF PREJUDICE FROM DISCLOSURE OF INFORMATION OTHER THAN EVIDENCE

35. It is found that the purpose of the Geberth report was to critique the respondent department's investigation of the Margolies homicide.

36. It is found that, other than descriptions of evidence and conclusions drawn from evidence, the Report consists of descriptions of recognized principles of law enforcement, descriptions of Geberth's background, descriptions of the respondents' search and investigation, general descriptions of search and investigative techniques, general descriptions of administrative and management principles applicable to law enforcement agencies, and, predominantly, analysis and critique of the respondents' search and investigation.

37. It is found that the respondents offered no evidence to prove that anything other than evidence and conclusions drawn from evidence of the Margolies crime referred to in the Report is to be used in a prospective law enforcement action, should there be one.

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38. It is also found that the major portion of the Report consists of analysis and critique of the respondent department's performance, is distinguishable and separable from a review and analysis of the evidence gathered, and does not contain the type of information likely to be used in a law enforcement action.

39. It is also found that, even if information other than evidence and conclusions drawn from evidence were to be used in a prospective law enforcement action, disclosure of that information would not reasonably prejudice such an action.

40. It is concluded that the portions of the Report consisting of information other than evidence and conclusions drawn from evidence are not exempt from disclosure pursuant to 1-19(b)(3)(B), G.S.

D. LIKELIHOOD OF USE OF EVIDENCE AND CONCLUSIONS DRAWN FROM EVIDENCE IN A PROSPECTIVE LAW ENFORCEMENT ACTION, AND OF PREJUDICE FROM DISCLOSURE OF EVIDENCE

41. With respect to the applicability of 1-19(b)(3)(B), G.S., the respondents maintain that disclosure of any evidence referred to in the Report would be prejudicial to a prospective law enforcement action.

42. It is found that Geberth was provided access to the complete police file on the Margolies investigation. The Report refers to some 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.

43. It is found that any evidence referred to in the Report is likely to be used in a prospective law enforcement action, if such an enforcement action is ultimately pursued.

44. It is also found that little evidence is directly identified in the Report, and that Geberth appears to have taken pains not to describe evidence or information that would be prejudicial to a prospective law enforcement action, if disclosed.

45. It is concluded that, considering the likelihood of a prospective law enforcement action, the likelihood of previous disclosures, and the general nature of the description of the evidence, the respondents failed to prove that disclosure of evidence or conclusions drawn from evidence contained in the Report would prejudice a prospective law enforcement action within the meaning of 1-19(b)(3)(B), G.S.

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II. PERMISSIVE NONDISCLOSURE UNDER SECTION 1-19(b)(3)(C): INVESTIGATORY TECHNIQUES UNKNOWN TO THE PUBLIC

46. The respondents also maintain that many portions of the Report are exempt from disclosure pursuant to 1-19(b)(3)(C), G.S., which provides that disclosure shall not be required 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 ... (C) investigatory techniques not otherwise known to the general public ....

47. The Commission takes administrative notice that many general aspects of missing person and homicide investigation, such as searching for the missing person using volunteers, dogs and helicopters; interviewing a victim's family; recording events around a crime scene; assigning officers to a case; developing psychological profiles of criminals; cooperation between state and federal law enforcement authorities; reporting by investigating officers to their superiors; generating investigative reports and compiling them in centralized files; and using informants, are widely publicized in popular books, newspapers, television and movies, and thus are generally known to the public.

48. Although the respondents testified at the hearing on this matter that actual law enforcement work and its portrayal on television are "two different ball games," it is found that nothing described in the Report concerning investigative techniques would be unfamiliar to an ordinary citizen who read books or newspaper accounts of police investigations, or watched real or fictional television or motion picture accounts of such investigations.

49. Before the Report was submitted for in camera inspection, the respondents also specifically maintained that the Report, being a communication between law enforcement experts, is a type of communication at a level beyond what the public perceives through television or other media.

50. After in camera review of the Report, however, it is found that nothing in the Report is at a level beyond what the public sees on television or in motion pictures, or reads in newspapers or other published accounts of crime investigation.

51. It is also found that the descriptions of investigatory techniques in the Report are not so detailed as to reveal any unknown aspects of otherwise known techniques.

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52. It is therefore concluded that nothing in the Report is exempt from disclosure pursuant to 1-19(b)(3)(C), G.S.

III. LINE-BY-LINE ANALYSIS OF THE REPORT

53. Notwithstanding the conclusions in paragraphs 40, 45 and 52, above, the Commission, with due consideration for the serious nature of disclosure of information permissibly withheld pursuant to 1-19(b)(3)(B) and (C), G.S., shall address the respondent's evidence and argument with respect to each portion of the Report claimed to be exempt.

A. PAGE 1

54. It is found that the first page of the Report is in the nature of a general introduction to the Report, describing its form and the bases for Geberth's conclusions.

55. It is found that the first page of the Report describes the two principal components of the Report to be an overall opinion by Geberth of the respondents' investigation, and an in-depth critique of the investigation. The first page generally indicates that Geberth's opinion is based on his law enforcement experience, his interviews and associations with law enforcement experts, his research of homicide cases generally, and the investigative materials provided by the respondent.

56. The respondents maintain that the portion of the Report described in paragraph 54, above, may be withheld pursuant to 1-19(b)(3)(B) and 1-19(b)(3)(C), G.S., because disclosure could alert criminals to the areas of concentration and nature of an analysis by an expert in an investigation that would not be otherwise known to the general public, and would create the risk that specific reference to listed source material would educate the murderer(s) to evade arrest and conviction.

57. It is found that nothing in that portion of the Report described in paragraph 54, above, describes investigatory techniques not otherwise known to the general public, within the meaning of 1-19(b)(3)(C), G.S.

58. It is also found that the portion of the Report described in paragraph 54, above, does not contain information likely to be used in a prospective law enforcement action, should there be one.

59. It is also found that the portion of the Report described in paragraph 54, above, contains no references to source materials and nothing concerning the areas of concentration and the nature of an analysis by an expert in an investigation, the disclosure of which creates any likelihood of prejudice to the homicide investigation or prosecution.

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60. It is concluded that the portion of the Report described in paragraph 54, above, is not exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

B. PAGE 2 LINES 1 THROUGH 11

61. It is found that lines 1 through the sentence ending within line 11 of the second page of the Report describe general principles applicable to the success of any investigation, and comment generally on the success of the Margolies investigation.

62. The respondents maintain that the portion of the Report described in paragraph 61, above, is exempt from disclosure pursuant to 1-19(b)(3)(C), G.S., because it contains characterization detail and analysis that is at a level of investigative techniques not otherwise known to the general public.

63. It is found that the portion of the Report described in paragraph 61, above, does not contain investigative techniques not otherwise known to the general public.

64. The respondents also maintain that the portion of the Report described in paragraph 61, above, is exempt from disclosure pursuant to 1-19(b)(3)(B), G.S., because it contains expert opinions that would educate the unapprehended murderer(s) and interfere with the investigation.

65. It is found that the portion of the Report described in paragraph 61, above, does not contain information likely to be used in a prospective law enforcement action.

66. It is also found that no information in the portion of the Report described in paragraph 61, above, is specific enough to educate an unapprehended murderer(s) or otherwise prejudice the Margolies investigation if disclosed.

67. It is concluded that the portion of the Report described in paragraph 61, above, is not exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

C. PAGE 2 LINES 11 THROUGH 14

68. It is found that the sentence beginning within line 11 of page 2 of the Report comments on the value and amount of evidence in the Margolies case.

69. The respondents maintain that the portion of the Report described in paragraph 68, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains characterization detail and analysis that is at a level

Docket #FIC 87-173 Page 10

of investigative techniques not otherwise known to the general public, and because it contains expert opinions that would educate the unapprehended murderer(s) and interfere with the investigation.

70. It is found that the portion of the Report described in paragraph 68, above, does not contain investigative techniques not otherwise known to the general public.

71. It is found that the portion of the Report described in paragraph 68, above, contains information likely to be used in a prospective law enforcement action, should one occur.

72. It is also found that the portion of the Report described in paragraph 68, above, contains only information that is likely known to the perpetrator(s) of the crime and to the general public.

73. It is also found that disclosure of the information contained in the portion of the Report described in paragraph 66, above, is unlikely to educate the perpetrator of the crime, and would create no reasonable probability of prejudicing a prospective law enforcement action, should one occur.

74. It is concluded that the portion of the Report described in paragraph 68, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

D. PAGE 2 LINE 15 THROUGH PAGE 3 LINE 13

75. It is found that the portion of the Report beginning at line 15 of page 2 through line 4 of page 3 describes the type of homicide, characterizes perpetrators of such crimes, and describes the usual manner and location of such crimes.

76. It is found that the portion of the Report beginning at line 5 of page 3 through line 13 of page 3 draws conclusions about the manner in which the crime was committed, the amount and usefulness of the evidence, and the likelihood that the crime will be solved.

77. The respondents maintain that the portions of the Report described in paragraphs 75 and 76, above, are exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because they make expert characterizations of the crime that are not otherwise known to the general public, would educate the criminal(s), and are of a sensitive nature.

78. It is found that the portions of the Report described in paragraphs 75 and 76, above, do contain sensitive information in that such information recites repugnant facts and conclusions about the Margolies homicide.

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79. It is concluded, however, that the sensitivity and repugnance per se of information does not state a basis for exemption from disclosure under the Freedom of Information Act.

80. It is found that the portion of the Report described in paragraphs 75 and 76, above, does not contain investigative techniques not otherwise known to the general public.

81. The respondents also maintain that the portion of the Report described in paragraphs 75 and 76, above, is exempt from disclosure pursuant to 1-19(b)(3)(B), G.S., because it contains expert opinions that would educate the unapprehended murderer(s) and interfere with the investigation.

82. It is found that the portion of the Report described in paragraphs 75 and 76, above, contains information to be used in a prospective law enforcement action, should one occur.

83. It is also found that the portion of the Report described in paragraphs 75 and 76, above, contains only information that is likely known to the perpetrator(s) of the crime.

84. It is also found that disclosure of the information contained in the portion of the Report described in paragraphs 75 and 76, above, is unlikely to educate the perpetrator of the crime, and would create no reasonable probability of prejudicing a prospective law enforcement action, should one occur.

85. It is concluded that the portion of the Report described in paragraphs 75 and 76, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

E. PAGE 3 LINES 14 THROUGH 16

86. It is found that the lines 14 through 16 of page 3 of the Report recite the opinion of Geberth concerning the conduct of the respondent into the investigation.

87. The respondents maintain that disclosure of the portion of the Report described in paragraph 86, above, creates the risk that it would educate the unapprehended murderer(s) to evade arrest and conviction, and that that portion of the Report is therefore exempt from disclosure pursuant to 1-19(b)(3)(B), G.S.

88. It is concluded that disclosure of the portion of the report described in paragraph 86, above, would create no such risk.

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89. It is concluded that the portion of the Report described in paragraph 86, above, is not exempt from disclosure pursuant to 1-19(b)(3)(B).

F. PAGE 4

90. It is found that page 4 of the Report is in the nature of a cover sheet that gives Geberth's post office box address, describes in general terms his experience in and knowledge of criminal investigations, states that the Report is given in confidence, and describes in general terms the intent of the analysis and critique that follows.

91. The respondents maintain that page 4 of the Report is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains expert advice to the respondent at a level of knowledge beyond the general public's, because it states that it is confidential and sensitive, and because disclosure would have a chilling effect on the respondent's efforts to seek similar reports.

92. The respondents further maintain that page 4 of the Report constitutes expert source material and the location of that source, and that disclosure of this information would educate the unapprehended criminal(s) to evade arrest.

93. It is found that the so-called "source material" is the very general description of Geberth's professional experiences, associations and research that form the bases for his expert knowledge; and that the "location of that source" is his post office box.

94. It is concluded that disclosure of Geberth's post office box and the generalized bases for his expert knowledge would not prejudice the respondents' investigation within the meaning of 1-19(b)(3)(B), G.S.

95. It is found that page 4 of the Report contains no investigative techniques within the meaning of 1-19(b)(3)(C), G.S.

96. It is also concluded that none of the respondent's other claims described in paragraphs 91 and 92, above, state statutory exemptions to disclosure under the Freedom of Information Act.

97. It is concluded that nothing on page 4 of the Report is permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

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G. PAGE 5 LINES 1 THROUGH 4

98. It is found that lines 1 through 4 of page 5 of the Report state Geberth's conclusion as to the diligence and professionalism of the respondents' investigation of Margolies' disappearance.

99. The respondents maintain that disclosure of the information described in paragraph 98, above, would create a risk of educating the unapprehended murderer(s) to evade arrest and conviction, and that the information is therefore permissibly exempt pursuant to 1-19(b)((3)(B), G.S.

100. It is found that disclosure of the information described in paragraph 98, above, creates no likelihood of prejudice to the respondents' investigation.

101. It is concluded that the information described in paragraph 98, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B), G.S.

H. PAGE 5 LINE 5 THROUGH PAGE 8 LINE 6

102. It is found that the portion of the Report consisting of line 5 of page 5 through line 6 of page 8 describes the respondents' response to the report that Margolies was missing, describes their search for Margolies following the receipt of the initial police report, and comments on whether the response and search techniques were appropriate and effectively utilized.

103. More specifically, it is found that lines 10 through 24 of page 5 of the Report describe and comment on the respondents' initial response and assignment of officers; that line 1 of page 6 through line 4 of page 7 describes the respondents' search methods in very general terms and comments on their appropriateness in the Margolies case; and that line 5 of page 7 through line 6 of page 8 describes and comments on additional investigative techniques utilized during the early phase of the search for Margolies.

104. The respondents maintain that the portion of the Report described in paragraphs 102 and 103, above is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, and contains detail on investigative techniques and their coordination that are not otherwise known to the general public.

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105. It is found that the portion of the Report described in paragraphs 102 and 103, above, contains some information likely to be used in a prospective law enforcement action, should one occur.

106. It is also found that the portion of the Report described in paragraphs 102 and 103, above, contains only general descriptions of search and investigation techniques and their coordination, and does not disclose investigatory techniques not otherwise known to the general public.

107. It is also found that the information contained in the portion of the Report described in paragraphs 102 and 103, above, contains no detail or specific information about the results or fruits of the described search or even the location of the search.

108. It is concluded that disclosure of the portion of the Report described in paragraphs 102 and 103, above, will not result in disclosure of investigatory techniques not otherwise known to the public, and will not disclose information to be used in a prospective law enforcement action that is prejudicial to such action.

109. It is concluded therefore that the portion of the Report described in paragraphs 102 and 103, above, is not permissibly exempt from disclosure under 1-19(b)(3)(B) or (C), G.S.

110. The respondents additionally maintain that the information contained on page 7 of the Report mentions individual(s) and a confidential source who should remain confidential.

111. It is found that page 7 of the Report names no individual(s) or sources, other than commonly known law enforcement agencies. Although relatives of Margolies and an unidentified informant are mentioned as sources of information, no information they may have provided is recited, and nothing but superficial information that would not result in disclosure of their locations or names is recited.

112. It is concluded that nothing in page 7 of the Report is permissibly exempt from disclosure pursuant to 1-19(b)(3)(A), G.S.

I. PAGE 8 LINES 7 THROUGH 27

113. It is found that lines 7 through 27 of page 8 of the Report are a critique of the search and investigatory procedures described in the preceding three pages of the Report.

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114. It is found that the portion of the Report described in paragraph 113, above, focuses on administrative responsibility and coordination of activities.

115. The respondents maintain that the portion of the Report described in paragraph 113, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, and contains detail on internal investigative techniques at a level not otherwise known to the general public that would educate criminals on police tactics.

116. It is found that the administrative and coordination activities generally described and critiqued on page 8 of the Report are not investigatory techniques not otherwise known to the general public.

117. It is found that the portion of the Report described in paragraph 113, above, does not contain information likely to be used in a prospective law enforcement action, should one occur.

118. It is also found the portion of the Report described in paragraph 113, above, contains no information about the fruits of the respondents' investigation and contains no information which, if disclosed, would reasonably prejudice the respondents' investigation or prospective prosecution.

119. It is concluded that the portion of the Report described in paragraph 113, above, is not exempt from disclosure pursuant to 1-19(b)(3)(B) or (C).

J. PAGE 9 LINES 1 THROUGH 6

120. It is found that lines 1 through 6 of page 9 of the Report indicate Geberth's conclusion as to the diligence and professionalism of the respondents in conducting the Margolies investigation, and states whether the investigation is active or inactive.

121. The respondents maintain that the portion of the Report described in paragraph 120, above, is exempt from disclosure pursuant to 1-19(b)(3)(B), G.S., because disclosure would create the risk that it would educate the unapprehended murderer(s) to evade arrest and conviction.

122. It is found that the portion of the Report described in paragraph 120, above, contains no information likely to be used in a prospective law enforcement action, should one occur.

123. It is also found that disclosure of the information described in paragraph 120, above, would create no likelihood of prejudice to the respondents' investigation or prospective prosecution.

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124. It is concluded that the portion of the Report described in paragraph 120, above, is not permissibly exempt from disclosure under 1-19(b)(3)(B), G.S.

K. PAGE 9 LINE 7 THROUGH PAGE 10 LINE 4

125. It is found that lines 7 of page 9 through line 4 of page 10 of the Report recite the circumstances of the discovery of the victim's body, evidence at the crime scene, and conclusions about the cause of death.

126. The respondents maintain that the portion of the Report described in paragraph 125, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains analysis and detail of the investigation and evidence that would educate the unapprehended murderer(s) to evade arrest and conviction, and contains detail on investigative strategies and tactics at a level not otherwise known to the public.

127. The respondents also maintain that individual(s) are mentioned on page 9 of the Report who should be kept confidential.

128. It is found, however, that the only individuals mentioned on page 9 of the Report are the victim, then Captain William C. Andersen of the respondent Department, and an unidentified informant.

129. It is found that portion of the Report described in paragraph 125, above, contains no investigative techniques unknown to the general public.

130. It is found that the portion of the Report described in paragraph 125, above, contains information likely to be used in a prospective law enforcement action, should one occur.

131. It is also found that the portion of the Report described in paragraph 125, above, contains only information that is likely known to the perpetrator(s) of the crime.

132. It is also found that disclosure of the information contained in the portion of the Report described in paragraph 125, above, is unlikely to educate the perpetrator of the crime, and would create no reasonable probability of prejudicing a prospective law enforcement action.

133. It is concluded that the portion of the Report described in paragraph 125, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

Docket #FIC 87-173 Page 17

L. PAGE 10 LINES 5 THROUGH 21

134. It is found that lines 5 through 21 of page 10 of the Report describe in general terms the preliminary activities of the respondents from commencement of the homicide investigation through the initial crime scene processing, and contain a brief critique of one aspect of the crime scene processing.

135. The respondents maintain that page 10 of the Report is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, and contains detail on the coordination of investigative techniques at a level which is not otherwise known to the general public and would educate criminals on police tactics.

136. It is found that the information described in paragraph 134, above, is likely to be used in a prospective law enforcement action, should one occur.

137. It is also found, however, that the portion of the Report described in paragraph 134, above, describes no evidence or details of the investigation which, if disclosed, could reasonably prejudice a prospective law enforcement action.

138. It is also found that the portion of the Report described in paragraph 134, above, describes no investigatory techniques not known to the general public.

139. It is concluded that the portion of the Report described in paragraph 134, above, is not permissibly exempt from disclosure under 1-19(b)(3)(B) or (C), G.S.

M. PAGE 10 LINE 22 THROUGH PAGE 11 LINE 5

140. It is found that line 22 of page 10 through line 5 of page 11 of the Report analyzes the crime scene and the autopsy results to reach conclusions about the nature of the crime.

141. The respondents maintain that pages 10 and 11 of the Report are exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because they contain analysis and detail of the investigation and evidence that would educate the unapprehended murderer(s) to evade arrest and conviction, and contain detail on coordination of investigative techniques at a level which is not otherwise known to the general public and which would educate criminals on police tactics.

142. It is found that portion of the Report described in paragraph 140, above, contains no investigative techniques unknown to the general public.

Docket #FIC 87-173 Page 18

143. It is found that the information contained in the portion of the Report described in paragraph 140, above, would likely be used in a prospective law enforcement action.

144. It is also found that the portion of the Report described in paragraph 140, above, contains only information that is likely known to the perpetrator(s) of the crime.

145. It is also found that disclosure of the information contained in the portion of the Report described in paragraph 140, above, is unlikely to educate the perpetrator of the crime, and would create no reasonable probability of prejudicing a prospective law enforcement action.

146. It is concluded that the portion of the Report described in paragraph 140, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B), G.S.

N. PAGE 11 LINE 6 THROUGH PAGE 14 LINE 9

147. It is found that line 6 of page 11 through line 9 of page 14 of the Report is an overall critique of the administrative and case management procedures used in the Margolies investigation, focusing on such case management procedures as assignment of designated case responsibilities, coordination of personnel and information, and file creation and management.

148. The respondents maintain that the portion of the Report described in paragraph 147, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because the pages contain analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, contain detail on investigative procedures, strategies and tactics at a level which is not otherwise known to the general public, and would educate criminals on those procedures, strategies and tactics.

149. It is found that the administrative and case management procedures described in the portion of the Report described in paragraph 147, above, are not investigatory techniques not otherwise known to the general public within the meaning of 1-19(b)(3)(C), G.S.

150. It is found that the information described in the portion of the report described in paragraph 147, above, is not likely to be used in a prospective law enforcement action.

151. It is further found the critique of the administrative and case management procedures found in the portion of the Report described in paragraph 147, above, refer to neither to evidence, analysis of nor conclusions about the crime itself, nor to any other information that would reasonably be prejudicial to a prospective law enforcement action.

Docket #FIC 87-173 Page 19

152. It is concluded that the portion of the Report described in paragraph 147, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

O. PAGE 14 LINE 10 THROUGH PAGE 16 LINE 27

153. It is found that the portion of the Report consisting of line 10 on page 14 through line 27 of page 16 is a more specific critique of the administrative and case management of the Margolies investigation beginning with the administrative and management procedures utilized at the crime scene.

154. In particular, it is found that lines 10 through 26 of page 14 of the Report discuss how an investigation should be managed, and the relationships between the administration of a police department, the management of an investigation, and the actual conduct of an investigation.

155. In addition, it is found that page 15 of the Report describes and critiques particular procedural and tactical decisions by the respondents, relating to assignments of responsibility, organization of assignments, record keeping and review, and information sharing, both among investigators and with the public.

156. In addition, it is found that lines 1 through 27 of page 16 of the Report describe and critique, in terms of investigative tactics, the manner in which the respondents notified the family of the victim, and the extent to which the family was informed of certain details of the crime.

157. The respondents maintain that the information contained in the portion of the Report described in paragraphs 153 through 156, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because the pages contain analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, contain detail on investigative procedures, strategies and tactics at a level which is not otherwise known to the general public and would educate criminals on those tactics, and because individual(s) are referred to who should be kept confidential.

158. It is found that no individuals are named in the portion of the Report described in paragraphs 153 through 156, above.

159. It is found that the family, friends and neighbors of the victim are referred to, without names or other identifying information, on page 16 of the Report, but that no private information about them is disclosed.

Docket #FIC 87-173 Page 20

160. It is found that the purely administrative and management procedures and tactics described in lines 10 through 26 of page 14 of the Report are not investigatory techniques within the meaning of 1-19(b)(3)(C), G.S.

161. It is found that lines 3 through 5 of page 15 of the Report state Geberth's conclusion about whether he found procedural and tactical errors in the early phases of the investigation.

162. It is also found that lines 6 through 35 of page 15 of the Report describe procedures and tactics in the early investigation, concerning such procedures as who should view a crime scene, briefing, information sharing, notations of personnel assignments, review of reports, timing of the release of information, timing of conferences, and the presence of particular officers at particular phases of the investigation.

163. It is found that lines 3 through 9 of page 16 of the Report describe Geberth's conclusion as to the tactfulness and tactical appropropriateness of the manner of the respondents' notification of the victim's family.

164. It is also found that lines 10 through 27 of page 16 of the Report describe and critique investigative tactics concerning the presence of a particular officers at a particular phase of the investigation, and the degree of disclosure of information to the family of the victim.

165. It is concluded that the portions of the Report described in paragraphs 161 and 163, above, are not investigatory techniques within the meaning of 1-19(b)(3)(C), G.S.

166. It is concluded that the investigative techniques referenced in paragraphs 162 and 164, above, are not unknown to the public within the meaning of 1-19(b)(3)(C), G.S.

167. It is found that the portion of the Report described in paragraphs 153 through 156, above, as a specific critique of the administrative and case management of the Margolies investigation, does not include information likely to be used in a prospective law enforcement action.

168. It is also found the critique of the administrative and management procedures and investigative tactics found in the portion of the Report described in paragraphs 153 through 156, above, refers to no evidence, analysis of the crime, conclusions about the crime, or any other information that would likely be used in or prejudicial to a prospective law enforcement action.

169. It is concluded that the portion of the Report described in paragraphs 153 through 156, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

Docket #FIC 87-173 Page 21

P. PAGE 16 LINE 28 THROUGH PAGE 17 LINE 12

170. It is found that the portion of the Report consisting of line 28 of page 16 through line 12 of page 17 refers to without describing a piece of evidence recovered in the Margolies case, the forensic and psychological value of the evidence, and a critique of the respondents' treatment of the evidence.

171. The respondents maintain that the portion of the Report described in paragraph 170, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because the pages contain analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, contain detail on investigative procedures, forensics, strategies and tactics at a level which is not otherwise known to the general public and would educate criminals on those tactics, and because individual(s) are referred to who should be kept confidential.

172. It is also found that the portion of the Report described in paragraph 170, above, does not describe the piece of evidence discussed and also indicates that this piece of evidence was not kept confidential.

173. It is also found that the portion of the Report described in paragraph 170, above, refers to but does not describe or analyze in any way the forensic or psychological value of the piece of evidence.

174. It is also found that the portion of the Report described in paragraph 170, above, critiques in general terms but does not describe or analyze in any way the investigative techniques utilized by the respondents with respect to the piece of evidence.

175. It is concluded that the information contained in the portion of the Report described in paragraph 170, above, is not likely to be used in a prospective law enforcement action.

176. It is also concluded that disclosure of the information contained in the portion of the Report described in paragraph 170, above, would not reasonably prejudice a prospective law enforcement action.

177. It is also concluded that the portion of the Report described in paragraph 170, above, does not disclose investigative techniques not otherwise known to the public.

178. It is therefore concluded that the portion of the Report described in paragraph 170, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

Docket #FIC 87-173 Page 22

Q. PAGE 17 LINES 13 THROUGH 23

179. It is found that the portion of the Report consisting of lines 13 through 23 of page 17 refers to and critiques the respondents' tactical use of an investigatory technique.

180. The respondents maintain that the portion of the Report described in paragraph 179, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because the pages contain analysis and detail of the investigation that would educate the unapprehended murderer(s) to evade arrest and conviction, contain detail on investigative procedures, forensics, strategies, expert sources and tactics at a level which is not otherwise known to the general public and would educate criminals on those tactics, and because individual(s) are referred to who should be kept confidential.

181. It is found that the expert source referred to in the portion of the Report described in paragraph 179, above, is well known to the general public.

182. It is found that the investigatory technique referred to in the portion of the Report described in paragraph 179, above, is named but is not described or analyzed in any way.

183. It is also found that both the investigatory technique and its tactical use as referred to in the portion of the Report described in paragraph 179, above, are known to the general public.

184. It is concluded that disclosure of the portion of the Report described in paragraph 179, above, would not result in disclosure of investigatory techniques not otherwise known to the general public.

185. It is found that information contained in the portion of the Report described in paragraph 179, above, is not likely to be used in a prospective law enforcement action.

186. It is also found that disclosure of the information contained in the portion the portion of the Report described in paragraph 179, above, would not reasonably prejudice a prospective law enforcement action, should one occur.

187. It is concluded that the portion of the Report described in paragraph 179, above, is not exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

Docket #FIC 87-173 Page 23

R. PAGE 17 LINE 24 THROUGH PAGE 18 LINE 15

188. It is found that the portion of the Report consisting of line 24 of page 17 through line 15 of page 18 describes the procedure and purpose of a meeting of investigators in any investigation, and critiques the timing of the first investigative conference in the Margolies case.

189. The respondents maintain that the portion of the Report described in paragraph 188, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it contains analysis and detail of the investigation of a sensitive nature that would educate the unapprehended murderer(s) of the status of the investigation and educate them to evade arrest and conviction, contains detail on investigative techniques at a level which is not otherwise known to the general public and would educate criminals on those tactics.

190. It is found that the portion of the Report described in paragraph 188, above, contains no information on the status of the investigation.

191. It is found that the portion of the Report described in paragraph 188, above, merely describes the process and value of sharing information in a meeting, and does not disclose an investigative technique unknown to the public.

192. It is also found that the information contained in the portion of the Report described in paragraph 188, above, is not likely to be used in a prospective law enforcement action, should there be one.

193. It is also found that disclosure of the information contained in the portion of the Report described in paragraph 188, above, would not reasonably prejudice a prospective law enforcement action.

194. It is concluded that the portion of the Report described in paragraph 188, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

S. PAGE 18 LINES 16 THROUGH 24

195. It is found that the portion of the Report consisting of lines 16 through 24 of page 18 consists of a critique of the Margolies investigation.

196. The respondents maintain that the portion of the Report described in paragraph 195, above, is exempt from disclosure pursuant to 1-19(b)(3)(B) and (C), G.S., because it would create the risk that it would educate the unapprehended murderer(s) to evade arrest and conviction.

Docket #FIC 87-173 Page 24

197. It is found that the portion of the Report described in paragraph 195, above, describes no investigative techniques.

198. It is also found that the information contained in the portion of the Report described in paragraph 195, above, might be used in a prospective law enforcement action, should there be one.

199. It is further found, however, that disclosure of the information contained in the portion of the Report described in paragraph 195, above, would not reasonably prejudice a prospective law enforcement action.

200. It is concluded that the portion of the Report described in paragraph 195, above, is not permissibly exempt from disclosure pursuant to 1-19(b)(3)(B) or (C), G.S.

201. It is concluded therefore that the respondents violated 1-15 and 1-19, G.S., by failing to disclose the Report.

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

1. The respondents shall forthwith provide to the complainants a copy of the Geberth Report described in the findings, above.

2. Henceforth the respondents shall strictly comply with the provisions of 1-15 and 1-19, G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 26, 1992.

Debra L. Rembowski

Acting Clerk of the Commission

Docket #FIC 87-173 Page 25

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:

Kevin Donovan

Greenwich Time

c/o Atty James Imbriaco

Times Mirror

780 3rd Avenue

New York, NY 10017

Greenwich Police Department

Chief, Greenwich Police Department

c/o Attorney Eugene F. McLaughlin, Jr.

Law Department

Greenwich Town Hall

P.O. Box 2540

Greenwich, CT 06836-2540

Debra L. Rembowski

Acting Clerk of the Commission