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 95-1

O. Paul Shew, Rocky Hill Town Manager, Philip Dunn,

Chief of Police, Rocky Hill Police Department and

Curtis Roggi, Rocky Hill Town Attorney,

Respondents April 26, 1995

The above-captioned matter was heard as a contested case on February 7, 1995 at which time the complainant 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. On January 3, 1995, the complainant requested access from the named respondents to the "properly redacted journals/diaries of former police chief Philip Schnabel from 4/28/88 through 1/3/92."

3. By letter of complaint dated and filed January 4, 1995, the complainant appealed to the Commission alleging that the respondents failed to provide access to all of the requested documents, in violation of the Freedom of Information Act (hereinafter "FOI" Act) and the Commission's orders in docket #s FIC 94-40 and FIC 94-118.

4. The Commission takes administrative notice of the case files, records and final decisions in docket #s FIC 94-40, Edward A. Peruta against Curtiss Roggi, Rocky Hill Town Attorney and 94-118, Edward A. Peruta against Philip Dunn, Chief of Police, Rocky Hill Police Department (hereinafter FIC 94-40 and FIC 94-118, respectively).

Docket #FIC 95-1 Page 2

5. It is found that the journals that are the subject of this complaint were the subjects of FIC 94-40 and FIC 94-118.

6. It is found that respondent Shew was not a respondent in either FIC 94-40 or FIC 94-118. Consequently, that portion of the complainant's non-compliance complaint as it applies to respondent Shew is hereby dismissed.

7. It is found that in FIC 94-40 (directed toward respondent Roggi) and FIC 94-118 (directed toward respondent Dunn), the Commission ordered the following:

"1. The respondent shall forthwith provide the complainant with access to the requested journals, ... 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." [Emphasis added.]

"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."

8. It is found that on January 3, 1994, some segments of the subject journals were made available to the complainant for inspection and that on January 4, 1994 the remaining segments of the redacted journals were made available.

Docket #FIC 95-1 Page 3

9. The complainant alleges that the redacted journals ultimately provided to him on January 4, 1995 were not provided in a prompt manner that complied with the orders in FIC 94-40 or FIC 94-118 and that the subject journals were improperly redacted.

10. With respect to the complainant's claim that the subject journals were improperly redacted, it is found that under the facts of this case, the complainant failed to prove in what manner the subject journals were improperly redacted. Consequently, this case is limited to whether the subject journals were provided to the complainant within a timeframe which complied with the Commission's orders in FIC 94-40 and FIC 94-118 to "forthwith provide" the subject journals to the complainant.

11. Black's Law Dictionary 588 (5th ed. 1979) defines the word "forthwith" as: "Immediately; without delay; directly; within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch."

12. It is found that the notices of final decison in FIC 94-40 and FIC 94-118 were mailed to the parties on October 17, 1994.

13. By letter to the Commission dated October 20, 1994, respondent Roggi indicated that he had forwarded copies of the subject journals to Schnabel on October 18, 1994 for Schnabel to make the appropriate redactions, as ordered by the Commission in FIC 94-40 and FIC 94-118.

14. However, by letter to the Commission dated October 27, 1994, respondent Roggi indicated that from that date forward, new counsel would have to be retained to assure compliance with the Commission's orders and that this would necessitate an "unavoidable delay" in complying with such orders.

15. It is found that at the hearing on this matter, the respondents were represented by an Attorney Neubert who stated that he had been retained by the respondents at the end of November or beginning of December 1994 to carry out compliance with FIC 94-40 and FIC 94-118.

16. It is further found that once retained, Attorney Neubert and his associates worked long hours throughout December 1994 to comply with the Commission's orders in FIC 94-40 and FIC 94-118; and that the redaction process was completed right after the first of the year, at which time, he forwarded the redacted journals to the Rocky Hill Town Clerk for public inspection.

Docket #FIC 95-1 Page 4

17. It is found that Attorney Neubert forwarded segments of the subject journals to the town clerk on January 3, 1995 and additional segments on January 4, 1995. Attorney Neubert then notified the complainant by letters of the same dates that the subject journals were available for public inspection at the town clerk's office.

18. Attorney Neubert contends that the time it took him to review the subject journals and make the redactions was entirely reasonable in view of the amount of material he had to examine and the careful scrutiny that was required in order to properly redact said journals.

19. Although the Commission finds the testimony of Attorney Neubert to be credible with respect to the length of time it took him to review and redact the subject journals, it is also found that at least one and one half months had already elapsed from the date of the notices of final decision in FIC 94-40 and 94-118 and the date the respondents retained Attorney Neubert to achieve compliance with the Commission's orders.

20. It is further found that the respondents failed to explain why compliance with the Commission's orders could not be achieved in a more timely manner. The respondents offered no reasonable explanation as to why it was necessary to retain new counsel or why it took one and one half months to do so, as described in paragraph 14, above.

21. The Commission further finds under the facts and circumstances of this case that the total two and one half months delay in complying with the Commission's orders was unreasonable and did not satisfy the Commission's orders "to forthwith provide" the subject journals to the complainant.

22. The Commission notes that in addition to the orders set forth in paragraph 4, above, the Commission imposed civil penalties in the amount of two hundred dollars ($200.00) each on respondent Roggi and respondent Dunn in FIC 94-40 and FIC 94-118, respectively, which penalties had not been remitted to the Commission as of the date of the hearing on this matter.

23. It is concluded that respondents Roggi and Dunn violated the provisions of 1-21k(b), G.S., by failing to comply in a timely manner with the orders of the Commission in FIC 94-40 and FIC 94-118 and that such violations warrant the imposition of an appropriate remedy under the provisions of 1-21i(b), G.S.

Docket #FIC 95-1 Page 5

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

1. Respondents Roggi and Dunn shall each, within fourteen days of the mailing of the notice of final decision in this matter, remit the additional sum of three hundred dollars ($300.00) to the Commission, which penalties shall be in addition to the civil penalties imposed upon them in FIC 94-40 and FIC 94-118.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 1995.

Debra L. Rembowski

Clerk of the Commission

Docket #FIC 95-1 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:

EDWARD A. PERUTA

38 Parish Road

Rocky Hill, CT 06067

O. PAUL SHEW, ROCKY HILL TOWN MANAGER, PHILIP DUNN, CHIEF OF POLICE, ROCKY HILL POLICE DEPARTMENT AND CURTIS ROGGI, ROCKY HILL TOWN ATTORNEY

c/o Michael Neubert, Esq.

Neubert, Pepe & Monteith

195 Church Street, 13th Floor

New Haven, CT 06510

Debra L. Rembowski

Clerk of the Commission