FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Connecticut Coalition Against Domestic Violence,
against Docket #FIC 94-399
Chief of Police, Middlebury Police Department,
Respondent July 26, 1995
The above-captioned matter was scheduled to be heard as a contested case on June 1, 1995, at which time the matter was continued to June 8, 1995, to provide notice to potentially interested persons Deborah Rowland and John Rowland. The matter was heard as a contested case on June 8, 1995, at which time the respondent, through counsel, moved to dismiss the appeal, and filed an affidavit of the respondent chief in support of such motion. The matter was again continued to June 28, 1995, to provide the complainant an opportunity to cross-examine the respondent chief. The matter was then heard as a contested case on June 28, 1995, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony and argument on the complaint.
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 November 4, 1994, and filed with the Commission on November 7, 1994, the complainant alleged that the respondent had not complied with its October 27, 1994 request for certain records.
3. It is found that by letter dated October 27, 1994, the complainant requested that the respondent provide it with:
a) Copies of all incident reports and all domestic violence reports prepared by or filed with any employee or agent of the Middlebury Police Department pertaining to any incident at any time during the month of April 1994 at the home of Deborah (and/or John) Rowland on South Street in Middlebury, Connecticut; and
Docket #FIC 94-399 Page 2
b) Any and all tape recordings, logs, or other written record of incoming and outgoing telephone conversations, including but not limited to 911 calls, maintained by the Middlebury Police Department pertaining to any incident at any time during the month of April 1994 at the home of Deborah (and/or John) Rowland on South Street in Middlebury, Connecticut.
4. It is found that the respondent never replied to the complainant's request and it is concluded that such failure constitutes a denial of access within the meaning of 1-21i(a), G.S.
5. It is further concluded that to the extent records exist that are responsive to the complainant's request, such records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
6. The respondent moved to dismiss the appeal on the grounds that the records responsive to the complainant's request either do not exist or are no longer in the possession of his department.
7. With respect to the complainant's request as described in paragraph 3b, above, it is found that the respondent may have maintained at one time, tape recordings of incoming telephone calls from April 1994, but that such tape recordings were erased sometime prior to the complainant's request and therefore cannot be made subject to an order of disclosure.
8. With respect to the complainant's request as described in paragraph 3a, above, it is found that four records were created on computers by a police dispatcher and police officers of the respondent's department concerning an incident at the Rowland home in April of 1994, specifically: an incident card, an incident summary, an incident report and a domestic violence report.
9. With respect to the subject incident card, the respondent stated at the June 28, 1995 hearing on this matter, contrary to the representations made in both his motion to dismiss and affidavit, that such record still exists in his department. The respondent made no claim that the incident card is exempt from disclosure.
10. It is concluded that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with a copy of the subject incident card.
Docket #FIC 94-399 Page 3
11. With respect to the subject incident summary, incident report and domestic violence report, the respondent claims that he no longer maintains any copies of such records and that the original paper records were turned over to the Superior Court in connection with his appeal of the Commission's decision in docket #FIC 94-255.
12. It is found that in September 1994, the respondent ascertained that there were no paper versions of the records described in paragraph 11, above, other than the originals maintained by his department and then deleted from the department's computer storage medium all electronic versions of the records identified in paragraph 11, above, for "security" reasons.
13. It is found that the respondent had at some point in time provided a copy of the records identified in paragraph 11, above, to his attorney, James R. Smith, who subsequently destroyed his copy.
14. The Commission takes administrative notice of its record and final decision in contested case docket # FIC 94-255, Craig W. Baggott and The Hartford Courant v. Chief of Police,
Middlebury Police Department and John Rowland (hereinafter "FIC 94-255").
15. It is found that the records at issue in FIC 94-255 are the same records described in paragraph 11, above; that the original paper versions of such records were submitted to the Commission for in camera inspection on October 20, 1994 in connection with FIC 94-255; and that the records submitted to it in camera in FIC 94-255, were subsequently submitted, under seal, to the Superior Court in November 1994, in connection with the appeal of the Commission's final decision in FIC 94-255.
16. The complainant argues that the respondent should be ordered to disclose the records identified in paragraph 11, above, because the respondent is entitled to obtain copies of those records which are now in the custody and possession of the Superior Court and ultimately to the return of the original records.
17. The Commission is troubled by the respondent's destruction of the electronic versions of the records identified in paragraph 11, above, and by his failure to keep a true copy of such records in accordance with sound record management practices. The Commission however, declines to issue the order sought by the complainant in this case because the respondent did not have possession of the records in question at the time of the complainant's request and because if the court rules that such records are not exempt from public disclosure, then the complainant may obtain a copy of them from the judicial body that has custody and possession of them or it can obtain them directly from the respondent when the original records are returned to him.
Docket #FIC 94-399 Page 4
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 to the complainant a copy of the subject incident card, described in pararagraph 9 of the findings, above, free of charge.
2. The remainder of the complaint is hereby dismissed.
3. Henceforth the respondent shall strictly comply with the requirements of 1-15(a) and 1-19(a), G.S.
4. The Commission strongly recommends that the respondent contact the State Public Records Administrator to educate himself as to proper public record management practices and to ensure his compliance with the state's public record retention and destruction statutes.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 26, 1995.
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket #FIC 94-399 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:
Connecticut Coalition Against Domestic Violence
c/o Jonathan M. Levine, Esq.
Silver, Golub & Teitell
P.O. Box 389
Stamford, CT 06904
Chief of Police, Middlebury Police Department
c/o James R. Smith, Esq.
Smith & Smith
459 Middlebury Road
P.O. Box 1263
Middlebury, CT 06762
James K. Robertson, Jr., Esq.
Carmody & Torrance
50 Leavenworth Street
P.O. Box 1110
Waterbury, CT 06721-1110
Ms. Deborah Rowland
654 South Street
Middlebury, CT 06762
Elizabeth A. Leifert
Acting Clerk of the Commission