FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Richard L. Judd and New Britain Board of Police Commissioners,

 

                                Complainants

 

                against                   Docket #FIC 95-138

 

Commissioner, State of Connecticut Department

of Public Safety, Division of State Police, and James Taylor,

 

                                Respondents                        February 15, 1996

 

                The above-captioned matter was heard as a contested case on November 6, 1995, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing on this matter, state trooper James Taylor was made a party to this matter at his request.

 

                After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

                1.  The respondent commissioner is a public agency within the meaning of 1-18a(a), G.S.

 

                2.  By letter dated March 17, 1995, the complainants requested that the respondent commissioner provide them with a copy of the "Taylor-Spranzo" internal investigation report.

 

                3.  By letter dated April 5, 1995, the respondent commissioner denied the complainants' request, stating that "pending investigations are not subject to disclosure under the Freedom of Information Act."

 

                4.  By letter dated April 20, 1995, and filed April 27, 1995, the complainants appealed to the Commission and alleged that the respondent commissioner violated the Freedom of Information ("FOI") Act by denying their request.

 

                5.  It is found that in New Britain, on May 2, 1993, the respondent Taylor, a state trooper, was involved in a motor vehicle accident while operating a state police cruiser off-duty, which resulted in the death of one Lorraine Spranzo.

 

#FIC 95-138                                           Page 2

 

                6.  It is found that the respondent commissioner conducted an internal affairs investigation into the accident described in paragraph 5, above, and prepared a report identified as IA# 93-049, which was submitted to the Commission for in camera inspection.

 

                7.  It is found that the IA# 93-049 report is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                8.  It is found that the IA# 93-049 report was completed in May 1993 and forwarded to the respondent Taylor's attorney and a state's attorney's office at that time, but remains unsigned.

 

                9.  The respondent commissioner claims that the requested report is exempt from disclosure until disciplinary hearings are conducted and concluded pursuant to Cleveland Board of Education v. Loudermill, 105 S. Ct. 1487 (1985), because the report is subject to change following such hearings.

 

                10.  It is found that the respondent Taylor's disciplinary hearing had originally been scheduled for May 21, 1993, but that the hearing was postponed and has not been rescheduled as of the date of the hearing on this matter.

 

                11.  It is found that the Loudermill case cited by the respondent does not state an exemption to the disclosure requirements of the FOI Act; and further, that any changes to the completed report could be issued in a supplemental report.

 

                12.  The respondent commissioner also maintains that the requested report is exempt from disclosure pursuant to 1-19(b)(3)(C) and 1-19(b)(4), G.S.

 

                13.  Section 1-19(b)(3)(C), G.S., permits the nondisclosure 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 (C) information to be used in a prospective law enforcement action if prejudicial to such action."  (Emphasis added.)

 

                14.  It is found that the respondent Taylor was arrested in connection with the accident referenced in paragraph 5, above, and that the criminal case against him was disposed of in October 1995.

 

#FIC 95-138                                           Page 3

 

                15.  It is found that the requested report was not compiled in connection with the detection or investigation of crime, but rather in connection with an internal police personnel investigation to determine whether employment discipline was warranted.

 

                16.  It is further found that a prospective law enforcement action was pending at the time of the complainants' request, but that the respondent commissioner failed to prove that disclosure of the requested report would have been prejudicial to such action.

 

                17.  It is therefore found that the respondent commissioner failed to prove that the requested report is exempt from disclosure pursuant to 1-19(b)(3)(C), G.S.

 

                18.  Section 1-19(b)(4), G.S., permits the nondisclosure 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."  (Emphasis added.)

 

                19.  Section 1-18a(h)(3), G.S., defines "pending litigation" as "the agency's consideration of action to enforce or implement legal relief or a legal right."

 

                20.   It is found that the respondent commissioner's intended disciplinary action against the respondent Taylor constitutes pending litigation within the meaning of 1-18a(h)(3), G.S.

 

                21.  It is found, based upon an in camera review of the IA# 93-049 report, that it consists primarily of witness interviews, statements and other evidence gathered during the course of the investigation and does not pertain to strategy or negotiations with respect to the litigation described in paragraph 20, above.

 

                22.  It is therefore found that the respondent commissioner failed to prove that the requested report is exempt from disclosure pursuant to 1-19(b)(4), G.S.

 

                23.  Consequently, it is concluded that by failing to provide the complainant with a copy of the IA# 93-049 report, the respondent commissioner violated the provisions of 1-15(a), G.S.

 

#FIC 95-138                                           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 commissioner shall immediately provide the complainant with a copy of the requested IA# 93-049 report, without charge.

 

                2.  Henceforth, the respondent commissioner shall strictly comply with the provisions of 1-15(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 14, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-138                                             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:

Richard L. Judd and New Britain Board of Police Commissioners

c/o  Anita D. Cobb, Esq.

New Britain Corporation Counsel

27 West Main Street

New Britain, CT 06051

 

Commissioner, State of Connecticut, Department of Public Safety, Division of State Police

c/o  Ann E. Lynch, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

James Taylor, Intervenor

c/o Paul J. McQuillan, Esq.

165 West Main Street

New Britain, CT 06050

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission