FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Frank Faraci,
Complainant
against Docket
#FIC 95-160
Middletown Office of the City
Attorney,
Respondent May 8, 1996
The above-captioned matter was heard as a contested
case on February 14, 1996, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. Docket #FIC
95-248, Judy Pozzetti v. Mayor of Middletown, was consolidated with the
above-captioned matter for purpose of hearing.
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
of complaint dated May 10, 1995 and filed with the Commission on May 15, 1995,
the complainant appealed to the Commission alleging that the respondent
violated the Freedom of Information ("FOI") Act by denying him access
to inspect and copy records pertaining to Frank Violissi, an employee of the
Middletown police department, (hereinafter "department").
3. The
Commission takes administrative notice of the records and decision in contested
case docket #FIC 94-99, Frank Faraci, Jr. v. Middletown Police Department,
Mayor of Middletown and Middletown City Attorney, (hereinafter "FIC
94-99).
4. The
records at issue in FIC 94-99 were:
a. all records concerning a January
1994 complaint filed by Judith Pozzetti against Violissi and Amy Pear,
employees of the [Middletown police] department;
b. civilian complaints and
disciplinary action against Violissi and Pear, within the past ten years;
c. settlements and/or disposed of
cases involving Violissi and Pear; and
Docket #FIC 95-160 Page
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d. all overtime sheets regarding
overtime worked by Violissi and Pear, within the past ten years.
5. In docket
#FIC 94-99, the Commission ordered disclosure of the records, as described in
paragraph 4a. through 4d., above, with certain redactions.
6. It is
found that following the Commission's order in FIC 94-99, the respondents
provided the complainant with certain records.
7. It is
found that on March 17, 1995 and by letter dated March 21, 1995, the
complainant informed the respondent that certain records were missing from the
records he had been provided with, specifically, the following:
i.
Violissi's personnel file, including job application, promotional exam
results, supplemental reports of officers or civilians concerning complaints
against Violissi;
ii.
records of state and federal grants, including, the slip signed by
Violissi accepting overtime pay for grant money and overtime funds;
iii. grant information between 1984
and 1988; and
iv. internal affairs complaint filed
by Pozzetti and other members of the public, including supplemental records and
statements signed and filled out by Violissi and a memorandum to the chief of
police from Violissi concerning a complaint filed by Pozzetti.
8. It is
found that on March 23, 1995, Violissi objected to the disclosure of the
requested records pertaining to him, and as described in paragraph 7, above,
claiming that disclosure would constitute an invasion of his privacy.
9. It is
found that the respondent, by letter dated March 28, 1995, responded to the
complainant's March 17 and 21, 1995 requests and provided access to some
records but denied access to others.
10. It is
found that the complainant then, by letter dated April 27, 1995, requested,
through counsel, that the respondent provide him with access to inspect and
copy the following records of the city of Middletown, (hereinafter "the
city"), and which records encompass the records described as missing in
paragraph 7, above:
Docket #FIC 95-160 Page 3
i. the
complete personnel file of Violissi;
ii. any
other files regarding Violissi maintained by the city, including the files of
the chief of police office, the personnel department, the internal affairs of
the police department, the mayor's office and the police station;
iii. all
records disclosing expenditures of federal and state grant funds, including any
unit, division or individual of the police department who received such funds,
for the period 1984 to present;
iv. all
records disclosing expenditures of federal and state grant funds to any unit,
division or individual of the police department, including Violissi, the Street
Crime Unit, any drug enforcement unit, detective division, patrol division and
administrative division which received such funds, for the period 1984 to
present;
v. all
records of any audits internal or external for state or federal authorities,
concerning the records in iii and iv, above; and
vi. all
records of civilian and internal complaints regarding Violissi not previously
produced, resulting in disciplinary action or not, for the period 1984 to the
present.
11. It is
found that the respondent, by letter dated May 3, 1995, denied the complainant
access to the records, as described in paragraph 10 i, ii and vi, above, on the
basis of Violissi's objection; informed the complainant that the requested
record, as described in paragraph 10 iv, above, was already provided; informed
the complainant that the request for records, as described in paragraph 10 iii,
above, was forwarded to the police department; and that it was in touch with
the police and finance departments to ascertain whether any records responsive
to the request, as described in paragraph 10 v, above, exist.
12. It is
found that the respondent, by letter dated May 18, 1995 provided the
complainant with access to inspect or copy certain records responsive to his
request, as described in paragraph 10 v, above.
Docket #FIC 95-160 Page
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13. It is
found that the records at issue in this appeal are those, as described in
paragraph 10, above, (hereinafter "requested records").
14. Also at
issue is whether the respondent failed to comply with the Commission's order in
docket #FIC 94-99.
15. It is
found that various departments within the city maintain records responsive to
the complainant's request as described in paragraph 10, above. Such departments include the personnel,
police (chief's office, filing/storage area of administrative division,
training division, grants applied for, overtime, street crime unit) and
finance.
16. It is
found that all of the records described in paragraph 15, above, are public
records within the meaning of 1-18a(d) and 1-19(a), G.S.
17. At the
hearing on this matter, the Commission ordered that the respondent submit to
the Commission all of the requested records, pertaining to Violissi for an in
camera inspection. Following the
hearing on this matter, the respondent submitted such records to the Commission
and an in camera inspection was conducted.
18. It is
found that all of the in camera records are public records within the meaning
of 1-18a(d) and 1-19(a), G.S.
19. It is
found that the in camera records are responsive to the complainant's request
for records, as described in paragraph 10 i, 10 ii, 10 iii, 10 iv and 10 vi,
above.
20. It is
found that the in camera records consist of 34 files labelled for reference as
Record A and Records 1 through 33.
21. It is
found that in camera Record A is Violissi's personnel file which contains 55
records comprising 81 pages of records of employment application, payroll,
commendation and complaints.
22. It is
found that in camera Record 1 contains 113 pages of records pertaining to
training received by Violissi.
23. It is
found that in camera Record 2 contains 138 pages of records and photographs
pertaining to a civilian complaint and internal affairs investigation.
24. It is
found that in camera Record 3 contains 158 pages and are records of praise,
commendation, awards, vacation, complaint, offense reports, personnel complaint
memorandum, supplementary reports, payroll and change of shift.
Docket #FIC 95-160 Page
5
25. It is
found that in camera Record 4 contains 47 pages and are records of a civilian
complaint and internal affairs investigation.
26. It is
found that in camera Record 5 contains 19 pages and are records of disciplinary
hearing, exoneration, civilian complaint and department investigation.
27. It is found that in camera Record 6 contains 91
pages and are records of complaint, investigation and findings
28. It is
found that in camera Record 7 contains 12 pages and are records of complaint
and investigation.
29. It is
found that in camera Record 8 contains 24 pages and are records of a civilian
complaint, supplementary report and internal affairs investigation.
30. It is
found that in camera Records 9, 10 and 11 contain 30 pages and are records of
civilian complaint, supplementary report and internal affairs investigation.
31. It is
found that in camera Record 12 contains 37 pages and are records of civilian
complaint, supplementary report and internal affairs investigation.
32. It is
found that in camera Record 13 contains 73 pages and are records of civilian
complaint, supplementary report and internal affairs investigation.
33. It is
found that in camera Record 14 contains 22 pages and are records of civilian
complaint, supplementary report and internal affairs investigation.
34. It is
found that in camera Record 15 contains 21 pages and are records of civilian
complaint, supplementary and investigation reports.
35. It is
found that in camera Record 16 contains 20 pages and are records of civilian
complaint, supplementary report and internal affairs investigation.
36. It is
found that in camera Record 17 contains 44 pages and are records of complaint,
supplementary report and internal affairs investigation.
37. It is
found that in camera Record 18 contains 13 pages and are records of complaint,
supplementary report and internal affairs investigation.
38. It is
found that in camera Record 19 contains 5 pages and are records of an incident
investigation.
Docket #FIC 95-160 Page
6
39. It is
found that in camera Record 20 contains 41 pages and are records of complaint,
supplementary report and internal affairs investigation.
40. It is
found that in camera Record 21 contains 144 pages and are records of
procedures, complaint, supplementary report and internal affairs investigation.
41. It is
found that in camera Record 22 contains 34 pages and are records of employee
complaint.
42. It is
found that in camera Record 23 contains 148 pages and are records of complaint,
supplementary report and internal affairs investigation.
43. It is
found that in camera Record 24 contains 13 pages and are records of employee
complaint, supplementary report and internal affairs investigation.
44. It is
found that in camera Record 25 contains 11 pages and are records of accounting
of grant money.
45. It is
found that in camera Record 26 contains 14 pages and are records of complaint
and supplementary report.
46. It is
found that in camera Record 27 contains 50 pages and are records of employee
complaint, supplementary report and internal affairs investigation.
47. It is
found that in camera Record 28 contains 7 pages and are records of civilian
complaint, supplementary report and internal affairs investigation.
48. It is
found that in camera Record 29 contains 2 pages and are records of civilian
complaint.
49. It is
found that in camera Records 30 and 32 contain 133 pages and are records of
overtime.
50. It is
found that in camera Records 31 and 33 contain 171 pages and are records of
overtime.
51. With
respect to the in camera records, the respondent contends that they are exempt
pursuant to 1-19(b)(2), 1-20a, and 1-19(b)(3)(A) and (D), G.S.
52. Section
1-19(b)(2), G.S., permits the nondisclosure of "personnel or medical files
and similiar files the disclosure of which would constitute an invasion of
personal privacy."
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53. Section
1-20a(c), G.S., provides that upon the filing of an objection by an employee
the agency shall not disclose the requested records unless ordered to do so by
the FOI Commission.
54. It is
found that the in camera records constitute or contain personnel or medical and
similiar file information within the meaning of 1-19(b)(2), G.S.
55. It is
found however, that the respondent and Violissi failed to prove that disclosure
of the in camera records, except for document 36 contained in in camera Record
A, would constitute an invasion of personal privacy.
56. It is
found that disclosure of the in camera records, except for document 36
contained in in camera Record A, would not be highly offensive to the
reasonable person.
57. It is
also found that the in camera records, except for document 36 contained in in
camera Record A, pertain to matters of legitimate public concern.
58. It is
therefore concluded that the in camera records, except for document 36 contained
in in camera Record A, are not exempt from disclosure pursuant to
1-19(b)(2), G.S.
59. With
respect to the request for records, as described in paragraph 10 v. above, it
is found that the respondent provided the complainant with access to certain
records responsive to such request by letter dated May 18, 1995.
60. It is
also found that the records provided to the complainant, as described in
paragraph 59, above, are maintained by the city's finance department, and that
the respondent upon receiving the complainant's April 27, 1995 request,
described in paragraph 10, above, contacted the police and finance departments,
as described in paragraph 11, above.
61. It is
concluded that the respondent's provision of access on May 18, 1995, when such
records had to be retrieved from the finance department did not violate the
promptness requirement of 1-19(a), G.S., under the facts of this
case. In addition, it is found that the
respondent initially responded to the complainant by letter dated May 3, 1995
upon receiving the complainant's April 27, 1995 request.
62. With
respect to the request for records as described in paragraph 10 iii, above, it
is found that although in camera record 25 is responsive to such request the
respondent's May 3, 1995 letter, described in paragraph 11, above, indicates
that the request for such records was forwarded to the police department.
63. It is
found that the respondent offered no evidence at the hearing as to whether the
police department provided it with
Docket #FIC 95-160 Page
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a response following its
querry, described in paragraph 62, above.
64. It is
therefore found that records, other than in camera Record 25, may exist which
are responsive to the request for records, as described in paragraph 10 iii,
above.
65. With
respect to the request for records, as described in paragraph 10 iv, above, it
is found that the respondent provided the complainant with access to certain
records responsive to such request, as indicated in the respondent's May 3, 1995
letter, described in paragraph 11, above.
66. It is
concluded that the respondent violated the Commission's order in docket #FIC
94-99 when it failed to disclose to the complainant certain of the in camera
records, which records are responsive to the records request in FIC 94-99, and
which records were ordered disclosed.
Specifically, the respondent failed to disclose ALL of the records
concerning the Pozzetti complaint, records of disciplinary action against
Violissi and Pear, records of settlements and/or disposed of cases involving
Violissi and Pear, and All overtime records regrading Violissi and Pear, as
described in paragraph 4a. through 4d., inclusive, above.
67. However,
it is also concluded that the respondent did not violate the Commission's order
in FIC 94-99 when it did not provide the complainant with Violissi's job
application and examination records and records of grants as those records were
not at issue in FIC 94-99.
68. With
respect to the respondent's claim of exemption pursuant to 1-19(b)(3)(A)
and (D), G.S., it is found that some of the in camera records contain the names
of informants, witnesses and investigatory techniques, exempt from disclosure
pursuant to 1-19(b)(3)(A) and (D), G.S.
Accordingly, such information may be permissibly withheld from
disclosure.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The
respondent shall within two weeks of the receipt of the notice of the final decision
in this matter provide the complainant with access to inspect or to copy all of
the in camera records, except document 36 of in camera Record A.
2. In
complying with paragraph 1 of this order the respondent may first redact the
following:
a.
Violissi's and his family's home address, home telephone number, social
security number, medical information and any personal account number(s)
contained in any of the in camera records;
Docket #FIC 95-160 Page
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b.
the identity of informants and witnesses not otherwise known, and
investigatory techniques not otherwise known within the meaning of
1-19(b)(3)(A) and (D), G.S.
3. With
respect to the request for records as described in paragraph 10 iii, 10 iv and
10 v, of the findings, above, the respondent shall ascertain from the police
and finance departments whether any records exist which have not already been
provided to the complainant. If records
exist which have not already been provided to the complainant, the respondent
shall within two weeks of the receipt of the notice of the final decision in
this matter arrange for access to such records to be provided to the
complainant. If no records exist, the
respondent shall obtain from such police and finance departments affidavits
attesting to a) whether such records existed and b) the specific areas of their
departments searched for such records and c) the person(s) conducting such
search, such affidavits to be signed by the police and finance department heads
responsible for the keeping and maintenace of such records, and such affidavits
to be provided to the complainant within two weeks of the receipt of the notice
of the final decision in this matter.
Approved by Order of the
Freedom of Information Commission at its regular meeting of May 8, 1996.
Elizabeth
A. Leifert
Acting
Clerk of the Commission
Docket #FIC 95-160 Page
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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:
Frank Faraci
c/o Ralph E. Wilson, Esq.
137 South Main Street
Middletown, CT 06457
Middletown Office of the City
Attorney
c/o Timothy P. Lynch, Esq.
P.O. Box 1300
Middletown, CT 06457-1300
Elizabeth
A. Leifert
Acting Clerk of the Commission