FREEDOM OF INFORMATION
COMMISSION
OF
THE STATE OF CONNECTICUT
In
the Matter of a Complaint by FINAL
DECISION
Edward
A. Peruta,
Complainant
against Docket #FIC 94-40
Curtis
Roggi, Rocky Hill Town Attorney,
Respondent October 12, 1994
The above-captioned matter was
heard as a contested case on June 7, 1994, at which time the complainant and
the respondent appeared, stipulated to certain facts and presented testimony,
exhibits and argument on the complaint.
This case was consolidated for purposes of hearing with Docket #FIC
94-118, Edward A. Peruta v. Philip Dunn, Chief of Police, Rocky Hill Police
Department.
After consideration of the
entire record, the following facts are found and conclusions of law are
reached:
1. The respondent is a public agency within the meaning of
1-18a(a), G.S.
2. By letter dated and filed February 9, 1994, the complainant
appealed to this Commission alleging that the respondent denied his request on
or about February 4, 1994 for access to former Rocky Hill Police Chief Philip
Schnabel's (hereinafter "Schnabel") journals that were in his custody
and control. The complainant also
requested that the Commission impose a civil penalty upon the respondent.
3. At the hearing on this matter, the complainant indicated that he
is seeking access to all of the journal entries made by Schnabel during the
period when Schnabel was Chief of the Rocky Hill Police Department (hereinafter
"journals").
4. It is concluded that the requested journals constitute public
records within the meaning of 1-18a(d) and 1-19(a), G.S.
Docket
#FIC 94-40 Page
2
5. The Commission takes administrative notice of the case files,
records and final decisions in docket #s FIC 92-213, Peruta against Shew, et
al. and FIC 93-308, Peruta against Shew, et al. (hereinafter "FIC
93-308").
6. It was found in FIC 93-308 that the requested journals were
previously in Schnabel's possession and were turned over by him to the
respondent sometime prior to the hearing in FIC 93-308 at the request of the
town manager following a records request for the covers from the complainant;
and that the respondent subsequently placed them in a safety deposit box leased
in his name, in violation of 1-19(a), G.S. The Commission also imposed a civil penalty against the
respondent.
7. It is found that on or about May 18, 1994, approximately three
weeks after the date of the notice of final decision in FIC 93-308 and several
months after the complainant's request for access to the journals, the
respondent turned the journals over to the Chief of the Rocky Hill Police
Department where they have been maintained in the "evidence lockup"
until the date of the hearing in this matter.
8. It is also found that Schnabel still has in his possession a
journal containing information relating to his tenure as Chief of the Rocky
Hill Police Department, from May of 1982 through January of 1984, which has yet
to be turned over to the respondent or to the Rocky Hill Police Department.
9. The respondent has not provided the complainant with access to
the requested journals, maintaining that they are exempt from disclosure
pursuant to the provisions of 1-19(b)(1) 1-19(b)(2), 1-19(b)(3), 1-19(b)(4),
1-19(b)(9) and 1-19(b)(10), G.S.
10. Section 1-19(b)(1), G.S., permits the withholding of:
"preliminary drafts or
notes provided the public agency has determined that the public interest in
witholding such documents clearly outweighs the public interest in
disclosure."
11. Section 1-19(b)(2), G.S., permits the withholding of:
"personnel or medical
files, and similar files the disclosure of which would constitute an invasion
of personal privacy."
12. Section 1-19(b)(3), G.S., permits the withholding of certain
categories of law enforcement records.
Docket
#FIC 94-40 Page
3
13. Section 1-19(b)(4), G.S., permits the withholding 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 or otherwise settled."
14. Section 1-19(b)(9), G.S., permits the withholding of:
"records, reports, and
statements of strategy or negotiations with respect to collective
bargaining."
15. In relevant part, 1-19(b)(10), G.S., permits the withholding
of "...communications privileged by the attorney-client
relationship."
16. It is found however, despite the respondent's claims concerning
the exemptions set forth in paragraphs 10 through 15, above, that as of the
date of the hearing in this matter, neither the respondent nor his counsel
personally reviewed the subject journals.
17. In support of his denial of access to the requested journals, the
respondent relied solely upon the testimony of Schnabel who, at the hearing on
this matter, conceded that portions of the journals were not exempt from
disclosure. Schnabel further stated
that he had no objection to the respondent (or any other counsel for the town
of Rocky Hill) conducting a review of the requested journals, redacting those
portions falling within the exemptions claimed in paragraph 9, above, and then
disclosing the non-exempt portions to the complainant.
18. It is found that the respondent, having failed to review the
subject journals in a good faith attempt to reasonably assess their
disclosability, either personally or through his counsel, failed to prove the
applicability of the exemptions claimed in paragraph 9, above.
19. It is further found, although the requested journals are now
physically located at the Rocky Hill Police Department, they remain in the
respondent's custody and subject to his control.
20. It is further found that the change of location of the requested
journals does not abrogate the respondent's responsibilities under the Freedom
of Information Act.
21. It is therefore concluded that the respondent violated the
disclosure provisions of 1-19(a), G.S., by failing to provide the
complainant with access to the requested journals.
Docket
#FIC 94-40 Page
4
22. It is further found that the respondent's violation of the rights
conferred by 1-19(a), G.S., particularly in view of the Commission's order
in FIC 93-308, was without reasonable grounds.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The respondent shall forthwith provide the complainant with
access to the requested journals, described in paragraphs 2 and 3, of the
findings, above, that are in his custody, subject to his control or which he is
entitled to obtain. This order is
limited to disclosure of those journals containing information relating to
Schnabel's tenure as the Chief of the Rocky Hill Police Department, from May of
1982 until January 3, 1992, when Schnabel was placed on administrative leave.
2. Prior to providing the complainant with the access described in
paragraph 1 of the order, above, the respondent shall provide Schnabel an
opportunity to review the requested journals and redact only those portions
constituting communications privileged by the attorney-client relationship,
that were from a client of his, while acting in his capacity as an attorney at
law.
3. In complying with paragraph 1 of the order, above, the respondent
may redact any medical information pertaining to Schnabel and any information
that would reveal: the identities of confidential informants, information to be
used in a prospective law enforcement action if prejudicial to such action,
investigatory techniques not otherwise known to the general public, names and
addresses of any victims of sexual assault, uncorroborated allegations subject
to destruction pursuant to 1-20c, G.S. and strategy with respect to
collective bargaining.
4. The Commission imposes a civil penalty against the named
respondent in the amount of two hundred dollars ($200.00). The aforementioned civil penalty shall be
remitted to the Commission within thirty days of the date of the mailing of the
notice of final decision in this matter.
Approved
by Order of the Freedom of Information Commission at its special meeting of
October 12, 1994.
Debra
L. Rembowski
Clerk
of the Commission
Docket
#FIC 94-40 Page
5
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:
EDWARD
A. PERUTA
38
Parish Road
Rocky
Hill, CT 06067
CURTIS
ROGGI, ROCKY HILL TOWN ATTORNEY
c/o
Michael J. Gustafson, Esq.
Halloran
& Sage
225
Asylum Street
Hartford,
CT 06103
Debra
L. Rembowski
Clerk of the Commission