FIC1991-396

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Robert H. Boone and Journal Inquirer,

Complainants

against Docket #FIC 91-396

John Drost, Mayor of Vernon; Gary Kology, Vernon Chief of Police; Vernon Police Department; Robert Dotson, Vernon Town Administrator; and Frederic E. Turkington, Jr., Vernon Assistant Town Administrator,

Respondents December 9, 1992

The above-captioned matter was heard as a contested case on June 18 and July 16, 1992, 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. By letter dated November 22, 1991 (hereinafter "November letter"), the complainants contacted the respondent mayor and renewed their requests for copies of the respondent police department's investigation reports and supporting documentation in the following four cases:

(a) the August 1990 investigation into the death of James Arsenault while in police custody (hereinafter "Arsenault report"); and

(b) the investigation into allegations of excessive force by Officer Hammick in the May 1991 arrest of Mark Rhodes (hereinafter "Hammick report"); and

(d) the 1989 sexual harassment complaints involving the respondent police department (hereinafter "harassment complaints").

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3. The respondents concede that there was no written reply to the complainants' November letter.

4. By letter of complaint filed with the Commission on December 20, 1991, the complainants alleged that with the exception of the Arsenault Report, and supporting documentation related to the Mair Report, the respondents failed to respond to, and comply with their records requests.

5. Specifically, the complainants alleged that the respondents were selectively responding to their requests.

6. The complainants request the imposition of civil penalties.

7. The requested documents are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

8. It is found that the respondents have fully complied with the complainants' requests for the Arsenault report.

9. It is found that in April of 1992, the respondents fully complied with the complainants' requests for the Hammick report.

10. The complainants withdraw their complaint as to allegations of noncompliance with their requests for the Arsenault and Hammick reports.

11. However, the complainants are pursuing their complaint as to the allegation that the respondents failed to provide the Hammick report in a prompt or timely manner as required by 1-15 and 1-19(a), G.S.

HAMMICK REPORT

12. It is found that Mark Rhodes was arrested by members of the respondent police department in May of 1991.

13. It is found that at the time of his arrest a fight allegedly ensued between Rhodes and one of the arresting officers, Officer Hammick.

14. It is found that allegations of misconduct and excessive force were levied against Hammick by Rhodes.

15. It is found that an internal investigation was conducted into Rhodes' allegation of police brutality (hereinafter "Hammick investigation").

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16. It is found that on or about May 7, 1991, Doreen Guarino, a reporter for the complainant Journal Inquirer (hereinafter "newspaper"), sought and was provided all pertinent information regarding Rhodes' arrest.

17. Subsequent to the newspaper story about Rhodes' arrest, the complainants become aware of the Hammick investigation and in June or July of 1991, requested a copy of the Hammick report.

18. The respondents argue that when the complainants first requested the Hammick report, the Hammick investigation had not yet been completed.

19. It is found, howver, that on or about July 8, 1991, a version of the Hammick report was created.

20. The complainants made their second request for the Hammick report in November, 1991.

21. The respondents maintain that after consultation with the state's attorney's office they withheld disclosure of the Hammick report, in accordance with 1-19(b)(3) and 1-19(b)(4), G.S.

22. Specifically, the respondents maintain that disclosure of the Hammick report at the time it was requested would have been prejudicial to the criminal prosecution of Rhodes, within the meaning of 1-19(b)(3)(B), G.S., because the arrest record and internal investigation were duplicative of the same facts and events.

23. Section 1-19(b)(3)(B), G.S., states in relevant part 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...(B) information to be used in a prospective law enforcement action if prejudicial to such action, ...

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24. It is found that the factual circumstances leading to Rhodes' arrest and his purported behavior during the arrest had been fully documented and disclosed to the complainant newspaper by the respondent police department in May, 1991.

25. It is found that the Hammick investigation generated documents and witness statements which may have been similar to information contained in the arrest report.

26. However, it is found that any similarity of information in the arrest and Hammick reports was inevitable because the same circumstances gave rise to a criminal arrest and a police internal affairs investigation.

27. At the hearing the respondents conceded that although portions of the Hammick report did not relate to Rhodes' criminal arrest and could have been disclosed once the report was completed, the entire report was withheld from disclosure.

28. It is found that the Hammick report was not "compiled in connection with the detection or investigation of crime" involving either Rhodes or Hammick, but rather, as a result of the respondent police department's internal investigation into allegations of misconduct against Officer Hammick as an employee of the respondent department.

29. It is also found that the respondents failed to prove that some of the information contained in the Hammick report had not already been made public as a result of disclosures concerning the circumstances of Rhodes' arrest.

30. It is further found that the respondents failed to prove that disclosure of the Hammick report would have been prejudicial to the criminal prosecution of Rhodes.

31. It is therefore concluded that the respondents failed to prove that the permissive exemption to disclosure set forth in 1-19(b)(3)(B), G.S., was applicable to the Hammick report.

32. Section 1-19(b)(4), G.S., states in pertinent part that disclosure is not required of records "...pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated...."

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33. It is found that the criminal case against Rhodes was adjudicated on March 25, 1992.

34. It is found that the respondents provided the Hammick report to the complainants in April 1992, five months after the complainants' second request.

35. It is found that the report provided to the complainants was dated July 8, 1991, and entitled "Internal Investigation: Use of Force, Officer Hammick v. Mark Rhodes".

36. It is found that the Hammick report was disclosed to the complainants despite the fact that Rhodes filed a civil lawsuit against the respondent police department.

37. It is found that although the respondents claim that Rhodes expressed an intention to sue the police department because of the circumstances of his arrest, the respondent police department was not a party to any pending litigation, within the meaning of 1-18a(h), G.S., involving Rhodes until April, 1992 when the civil lawsuit was commenced.

38. At the hearing on this matter before the Commission, no additional evidence was presented to support the respondents' claim that prior to April, 1992, the Hammick report was exempt from disclosure under 1-19(b)(4), G.S.

39. Accordingly, it is concluded that the respondents failed to prove the applicability of 1-19(b)(4), G.S.

40. It is therefore concluded that the respondents violated 1-15 and 1-19(a), G.S., by failing to provide the Hammick report to the complainants immediately after it was prepared.

41. Under the facts of this case, and in light of the respondents failure of proof for the exemptions claimed, it is found that the respondents delay in disclosing the Hammick report was in this instance without reasonable grounds.

MAIR REPORT

42. It is found that in October of 1991, prior to their November letter, the complainants orally requested a copy of the Mair report from the respondent police department.

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43. It is found that on or about October 23, 1991, the respondent assistant town manager, Frederic Turkington, Jr., gave the complainant newspaper an interview concerning the sexual harrassment allegations and internal investigation involving Lieutenant Mair.

44. It is found that during the course of that interview Mr. Turkington orally provided the complainants with information contained in the Mair report, but the actual contents of the file was not shared with the complainants' reporter.

45. Specifically, it is found that Mr. Turkington examined the Mair report and then selectively disclosed facts contained in the Mair report without disclosing the names of, or other personally identifiable information about witnesses or third parties to the incidents of sexual harassment.

46. It is found that on or about October 26, 1991, Lieutenant Mair filed a standard written objection to disclosure of the Mair report claiming that "...disclosure of the requested records [would] constitute an invasion of [his] personal privacy...."

47. By letter dated October 28, 1991, the respondents notified the complainants that Mair had objected to the release of the Mair report and therefore, absent an order from this Commission, the records would not be disclosed.

48. The Mair report and supporting documents were submitted to the Commission for in camera inspection.

49. It is found that the Mair report concerns the conduct of Mair in the performance of his duties as a supervisory police officer and is best characterized as a "disciplinary" record.

50. Specifically, the Mair report discusses the allegation of sexual harassment levied against Mair by the respondent police department's sole female police officer. The records also contain observations and allegations that suggest a pattern of harassment by Mair towards other female employees of the respondent police department.

51. It is found that as a result of the information uncovered during the internal affairs investigation, Lt. Mair was disciplined and demoted from lieutenant to patrolman.

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52. The respondents claim that the Mair report is exempt from disclosure under 1-19(b)(2), G.S., as a personnel file, the disclosure of which would constitute an invasion of personal privacy.

53. The respondents argue further that Chairman v. Freedom of Information Commission ("FOIC"), 217 Conn. 193 (1991), precludes disclosure of the Mair report.

54. Lt. Mair did not appear at the hearing on this matter to present evidence or argue the applicability of either 1-19(b)(2), G.S., or Chairman v. FOIC.

55. It is found that for record keeping purposes, the Mair report is maintained as part of Mair's personnel file.

56. However, it is found that 1-19(b)(2), G.S., was not intended to shield the wrongdoing of either public officials or public employees in the performance of their duties.

57. After reviewing the records in camera, it is also found that release of the records in the form requested by the complainants would result in the disclosure of information that would substantiate allegations of sexual harrassment.

58. The Commission finds that there can be no reasonable expectation of privacy in this case on the part of a wrongdoer with respect to public records that document his wrongdoing.

59. It is also found that nothing in the records at issue suggest that Mr. Mair was embarrassed or otherwise concerned about his utterances to or about his female colleagues when he initially made the remarks that the women found offensive -- and for which he was disciplined.

60. It is therefore found that the respondents failed to prove that Mair entertained a reasonable expectation of privacy in the information contained in the documents forming the basis for the disciplinary record, as set forth in Chairman.

61. Accordingly, it is concluded that under the facts of this case, the respondents failed to demonstrate the applicability of 1-19(b)(2), G.S., to Mr. Mair.

62. Because the Mair report contains the names and identifying information of third parties who were both victims of, and spectators during Mair's allegedly harrassing colloquy at the police station, and public disclosure of information related to them carries a potential for embarrassment or ridicule, the respondents shall give those third parties whose identities are not already publicly known an opportunity to object to public disclosure of their identities and/or personally identifiable information.

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63. It is found that among the documents submitted for in camera review is a statement by the complaining female police officer.

64. It is found that female officer's identity and the general nature of her allegations against Mair were made public in several newspaper articles published by the complainants.

65. Additionally, it is found that on or about November 1, 1991, the female officer in question filed a complaint against Mair with the Connecticut Commission on Human Rights and Opportunities (hereinafter "CHRO".)

66. It is further found that appended to the CHRO complaint was a copy of the female officer's statement concerning her sexual harassment charges against Mair, as provided to the respondent police department on September 13, 1991.

67. It is therefore found, that the female officer in question had placed her identity and statements relating to her allegations of sexual harassment against Mair in the public domain.

68. Consequently, it is found that under the facts of this case, the respondents failure to disclose to the complainants a copy of the female officer's statement was without reasonable grounds.

69. It is also found that among the documents submitted for in camera review in the Mair case is a letter from Attorney David Metzger to the respondent chief of police.

70. It is found that the Metzger letter was provided in confidence to the respondent chief of police in Attorney Metzger's capacity as legal adviser.

71. It is concluded that the Metzger letter is exempt from disclosure in accordance with the attorney-client privilege exemption set forth in 1-19(b)(10), G.S.

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72. The respondents also argue that the Mair report is protected from disclosure by 1-19(b)(4), G.S.

73. The respondents argue that in addition to the female officer's CHRO complaint and the internal investigation by the police department, at the time of the request for the Mair report, there were approximately ten administrative and civil claims which had been filed that "involved" both Mair and the Town of Vernon (hereinafter "Town").

74. The respondents argue further that at the time of the first hearing on this matter only the female officer's CHRO complaint against Mair had not been resolved.

75. It is found that the respondents failed to prove that at the time of the records requests the records at issue were in fact records pertaining to "strategy and negotiations with respect to pending claims or litigation" to which the respondents in this contested case were parties.

76. It is therefore concluded that the respondents failed to prove the applicability of 1-19(b)(4), G.S., to the Mair report.

77. The Commission notes that the Town is not presently involved in any litigation with Mr. Mair.

HARASSMENT COMPLAINTS

78. It is found that there were four complaints of sexual harassment involving the respondent police department filed in 1989.

79. It is found that two of those complaints went through the complaint process to the State Board of Mediation and Arbitration (hereinafter "Board"), and the other two complaining parties opted not to prosecute their complaints or testify before the Board.

80. The respondents argue that at all times material to this case the harassment complaints were treated as confidential because of the sensitive nature of the allegations contained therein, and the promises of confidentiality given to the complaining parties in order to secure their statements.

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81. It is found that the respondents failed to prove the applicability of any statutory exemption to disclosure of the harassment complaints.

82. The Commission is, however, sensitive to the fact that disclosure of the names of, or personally identifiable information about the alleged victims of the sexual harassment might subject them to harassment, embarrassment or ridicule.

83. It is therefore found that the respondents shall contact the alleged victims of the sexual harassment and give them an opportunity to object to having their identities and any personally identifiable information made public.

CONCLUSION

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 the complainants with a copy of the documents filed with the Commission in camera and identified as In Camera Document Numbers 91-396-1 through 91-396-8, inclusive, and 91-396-10 through 91-396-12, inclusive. In Camera Document Number 91-396-9 is not ordered disclosed because it is exempt under 1-19(b)(10), G.S., and In Camera Document Numbers 91-396-13 and 91-396-14 are not ordered disclosed because they do not fall within the scope of the complainants' request.

2. In complying with paragraph 1 of this order, the respondents shall notify the victims and third parties in writing of the Commission's decision and give those persons whose identities are not already publicly known, fourteen days within which to object to the disclosure of their identities and any personally identifiable information.

3. If any alleged victim or third party objects to disclosure of his or her personally identifiable information, then the respondents shall mask, redact or delete or otherwise conceal their names, identities and any personally identifiable information before disclosing the document because that information is not already publicly known.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 9, 1992.

Debra L. Rembowski

Acting Clerk of the Commission

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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:

Robert H. Boone

The Journal Inquirer

306 Progress Drive

Manchester, CT 06040

c/o Attorney Edward F. O'Donnell, Jr.

Siegel, O'Conner, Shiff

370 Asylum Street

Hartford, CT 06103

and c/o Attorney John M. Casey

475 Buckland Road

South Windsor, CT 06074

Debra L. Rembowski

Acting Clerk of the Commission