FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
William J. Corvo and The Middletown Bulletin,
Complainants
against Docket #FIC 91-198
George Aylward, Chief of Police, Middletown Police Department and Middletown Police Department,
Respondents May 27, 1992
The above-captioned matter was heard as a contested case on October 8 and 29, 1991, at which times the complainants and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.
2. It is found that on or about June 4, 1991, William Corvo, on behalf of himself and the Middletown Bulletin, sent a letter of request (hereinafter "June letter") to the mayor of Middletown, Paul Gionfriddo (hereinafter "Mayor").
3. It is found that in their June letter the complainants requested transcripts of, or access to, tape recordings of an October 25, 1989 meeting between Seb Garafalo and Sal Mazzotta, and an October 30, 1989 meeting between Sal Mazzotta and Salvatore D'Aquila (hereinafter "tapes").
4. It is found that by reply letter dated June 10, 1991, the Mayor acknowledged receipt of the request.
5. It is found that in his reply letter the Mayor stated his belief that the requested tapes were public records disclosable to the public. The Mayor also directed the complainants to contact the respondent chief of police to arrange a suitable date and time to listen to the tapes.
Docket #FIC 91-198 Page 2
6. It is found that at the time of the complainants' June letter, portions of one or both tapes had been disclosed during a federal organized crime trial under way in Hartford, Connecticut.
7. Specifically, it is found that by letter dated March 5, 1991, Federal Bureau of Investigation Special Agent Donald G. Brutnell acknowledged receipt of the original tapes dated October 25 and 30, 1991, from the respondent police department for use in the federal court prosecution under way in Hartford, Connecticut.
8. It is found that in his March letter Special Agent Brutnell stated that once all legal proceedings had concluded, including appeals, the original tapes would be returned to the respondent police department.
9. It is found that according to the respondent police department's chain of custody log, prior to the release of the original tapes to Special Agent Brutnell, the Mayor issued a "direct order" to the police department to keep a copy of each tape.
10. The respondents concede that at the time of the complainants' request several copies of each tape existed.
11. It is found that prior to the complainants' June request, journalists from both the Hartford Courant and the Middletown Press newspapers (hereinafter "Courant" and "Press", respectively) had listened to one or both tapes.
12. It is found that according to the respondent police department's chain of custody log, on April 17, 1991, Press reporter William Daley listened to the October 25th tape, and on May 18, 1991 he listened to the October 30th tape.
13. It is found that according to the respondent police department's chain of custody log, on May 29, 1991, Courant reporter Suzanne Sataline listened to the October 30th tape.
14. It is concluded that at all times material, the requested tapes were treated like disclosable public records.
15. It is found that on or about June 20, 1991, the complainants contacted the respondents to arrange to listen to the tapes.
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16. It is found that on or about June 20, 1991, the respondents informed the complainants that the tapes were in the custody of the respondent police department's Street Crime Unit, and the individual with primary responsibility for the chain of custody of the tapes, Sergeant Violissi, was away on vacation but scheduled to return to work on July 1, 1991.
17. It is found that in the spirit of cooperation, and with a well-founded belief that compliance was imminent, the complainants agreed to await the return of Sergeant Violissi.
18. It is found that on July 1, 1991, the complainants placed a telephone call to Sergeant Violissi at work, but were unable to speak to him.
19. It is found that on July 2, 1991, the complainants received a call from the respondent police department informing them that the tapes were no longer available.
20. Specifically, the complainants were informed that the state's attorney's office had taken possession of the tapes.
21. By letter of complaint dated July 15, 1991, and filed with the Commission on July 18, 1991, the complainants alleged that the respondents failed to comply with a request for access to tape recordings in the possession of the respondent police department.
22. It is found that at the time of the request the tapes were public records within the meaning of 1-18a(d), G.S.
23. The respondents concede that at all times prior to the July letter the tapes were disclosable to the public, and were freely available to other members of the press.
24. The respondents argue that by letter dated July 1, 1991 (hereinafter "July letter") the respondent police department received a request from the state's attorney's office to allow it to "receive for review" the tape recordings.
25. The respondent police department maintains that in response to the July letter all copies of the tapes were given to the state's attorney's office.
26. The respondents also argue that once the tapes were identified by the state's attorney's office as possibly relevant to an investigation, the character of the tapes changed from disclosable public records to records that were no longer disclosable to the public.
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27. It is found that the respondents had the burden of proving the applicability of an exemption to disclosure of the previously disclosed tapes.
28. It is found that the respondents failed to meet their burden of proving the applicability of any exemption to disclosure.
29. It is found that on or about July 1, 1991, the respondent police department transferred custody of three copies of the October 25th tape, and one copy of the October 30th tape to the state's attorney's office.
30. It is found that if the respondent police department transferred possession of all copies of the tapes in its possession, then it did so knowing that: 1) a Freedom of Information Act (hereinafter "FOIA") request was pending, and 2) the complainants sought--and had been promised--access to the tapes.
31. Under the facts of this case, it is found that the speculation by the state's attorney's office that the tapes might be relevant to an investigation did not alter the character of tapes whose content had already been publicly disclosed.
32. Under the facts of this case, it is found that the interests of justice, and compliance with the spirit and the letter of the FOIA dictated that the respondents should have either provided the complainants with an opportunity to listen to the tapes prior to their transfer, or retained at least one copy of each of the tapes to allow the complainants access.
33. The Commission notes that the respondent police department's wholesale transfer of the tapes without retaining duplicates as permanent records may not be in compliance with its records retention schedule/requirements.
34. It is concluded that the respondents violated 1-15 and 1-19(a), G.S., when they failed to provide the complainants with access to the requested tapes.
35. It is also concluded that the violation set forth in paragraph 34, above, was without reasonable grounds.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
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1. Henceforth the respondents shall fully comply with the open records provisions set forth in 1-15 and 1-19(a), G.S.
2. Within ten days of the date of mailing the decision in this case, each respondent shall search its files for copies of the requested tapes. If copies of the tapes exist in any of the files, then the complainants must be given immediate access to the tapes wherever located. If no copies of the tapes are found in the aforementioned files, then the respondents shall contact the state's attorney's office and request a copy of each tape. If the request is denied, then each respondent must furnish the complainants with a sworn affidavit stating that after searching its files and appealing to the state's attorney's office copies of the tapes cannot be provided.
3. The respondent chief shall remit to the Commission a civil penalty in the amount of five hundred dollars ($500) within thirty (30) days of the notice of final decision in this case.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 27, 1992.
Karen J.Haggett
Clerk of the Commission
Docket #FIC 91-198 Page 6
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:
Mr. William J. Corvo
The Middletown Bulletin
790 Ridge Road
P.O. Box 906
Middletown, CT 06457
Timothy Lynch, Esq.
City Attorney's Office
P.O. Box 1300
Middletown, CT 06457
Karen J.Haggett
Clerk of the Commission