FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Christine L. Kotrba and The Day,
Complainants
against Docket #FIC 93-111
New London Police Department,
Respondent February 16, 1994
The above-captioned matter was heard as a contested case on August 6, 1993, at which time the complainants and Genaro Velez, the police officer who is the subject of the requested records, appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
At the hearing on this matter, Genaro Velez was granted party status by the undersigned hearing officer.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent department is a public agency within the meaning of 1-18a(a), G.S.
2. By letter dated April 5, 1993, the complainants requested from the respondent department:
a. access to examine Officer Genaro Robert Velez's ("Velez") entire personnel file;
b. copies of all civilian complaints filed against Velez since the time he began working for the respondent in 1983 and the disposition of such complaints, including any disciplinary action taken as a result thereof; and
c. copies of any and all internal investigations conducted by the respondent department concerning Velez.
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3. By letter dated April 7, 1993, the respondent department informed Velez of the complainants' request and notified him of his opportunity to object to disclosure of the requested records pursuant to 1-20a(b) and 1-20a(c), G.S.
4. By letters dated April 9 and 10, 1993, both Velez and his union representative objected to disclosure of the requested records.
5. By letter dated April 14, 1993, the respondent notified the complainants of Velez's objection to disclosure and indicated that it would not release the requested records unless ordered to do so by the Freedom of Information hereinafter ("FOI") Commission.
6. From the respondent department's denial of access to the requested records, the complainants appealed to this Commission by letter filed on April 22, 1993.
7. It is concluded that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
8. It is further concluded that, pursuant to 1-19(a), G.S., unless the records at issue are exempted by either federal law or state statute, such records are subject to disclosure pursuant to the provisions of the FOI Act.
9. Velez maintains that the requested records are exempt from disclosure pursuant to 1-19(b)(2), (3)(B) and (4), G.S.
10. It is concluded that Velez, who is not the custodian of the requested records, has no standing either in his own capacity or on behalf of the respondent department, to claim the exemptions to disclosure contained in 1-19(b)(3) or 1-19(b)(4), G.S.
11. With respect to the complainants' request described in paragraph 2a., above, for access to Velez's personnel file, Velez objects to disclosure of any medical or other information contained therein, maintaining that disclosure of such information would constitute an invasion of his personal privacy. Additionally, Velez objects to disclosure of his personnel file on the basis that since the respondent department has refused, upon request, to permit him access to his own records, he himself does not know what is contained therein and therefore the file should not be disclosed to the complainants.
12. It is found that the respondents failed to prove that the entirety of Velez's personnel file is exempt from disclosure pursuant to 1-19(b)(2), G.S.
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13. It is further found however, that to the extent the requested personnel file contains any medical information or any personal information that is not directly related to Velez's employment as a police officer, such information is exempt from disclosure pursuant to 1-19(b)(2), G.S.
14. It is further found however, that the remaining portions of Velez's personnel file that do not fall within the exemption contained in 1-19(b)(2), G.S., as described in paragraph 13, above, are disclosable to the complainants, pursuant to 1-19(a), G.S.
15. With respect to the complainants' requests described in paragraph 2b. and 2c., above, Velez indicated at the hearing on this matter, that the respondent department maintains civilian complaints and internal investigation records pertaining to him, but that he did not know how many there were or their disposition.
16. It is found that at least one internal investigation concerning Velez was ongoing as of the date of the hearing on this matter.
17. It is further found that as of the date of the hearing on this matter, several criminal charges were pending against Velez, which complaints stem from alleged incidents involving Velez that occurred during the final months of 1992 and may be the subject of the respondent's ongoing internal investigation, referred to in paragraph 16, above.
18. It is also found that as of the date of the hearing on this matter, Velez had at least one grievance pending before the State Board of Mediation and Arbitration relative to his suspension from the respondent department in November 1992.
19. It is also found that information concerning the alleged incidents involving Velez and his suspension from the respondent department have been publicly reported in the local newspapers and were also made a matter of public record through Velez's testimony and exhibits offered by him at the hearing on this matter.
20. It is found that the respondents failed to prove that either the requested civilian complaints or the internal investigation records pertaining to Velez constitute personnel, medical or similar files within the meaning of 1-19(b)(2), G.S.
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21. It is further found however, that even if the requested civilian complaints or internal investigation records constituted personnel, medical or similar files; and even if disclosure of the information contained in such records would be embarassing to Velez, an expectation of privacy with respect to such information would not be reasonable under the facts and circumstances of this case, since such information has already been placed in the public realm, as noted in paragraph 19, above.
22. It is concluded therefore that the requested civilian complaints and internal investigation records are subject to disclosure pursuant to the provisions of 1-15(a) and 1-19(a), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent department shall forthwith provide the complainants with access to those portions of Velez's personnel file that are not exempt from disclosure pursuant to 1-19(b)(2), G.S.
2. The respondent department shall forthwith provide Velez with access to his personnel file.
3. The respondent department shall forthwith provide both the complainants and Velez with a copy of each civilian complaint pertaining to Velez filed with the respondent and a copy of each of its internal investigation files pertaining to Velez.
4. In complying with paragraph 1 of this order above, the respondent department may redact or mask any medical information and any personal information not directly related to Velez's employment as a police officer, as described in paragraph 13, of the findings, above.
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Approved by Order of the Freedom of Information Commission at its special meeting of February 16, 1994.
Elizabeth A. Leifert
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:
Ms. Christine L. Kotrba
The Day
47 Eugene O'Neill Drive
New London, CT 06320
New London Police Department
5 Governor Winthrop Boulevard
New London, CT 06320
Mr. Genaro Velez
1024 East Lake Road
Oakdale, CT 06370
Elizabeth A. Leifert
Acting Clerk of the Commission