FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Terence P. Sexton,

 

                                Complainant

 

                against                                   Docket #FIC 95-193

 

Chief of Police, Hartford Police Department,

 

                                Respondent                          May 8, 1996

 

                The above-captioned matter was heard as a contested case on December 13, 1995, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of 1-18a(a), G.S.

 

                2.             It is found that by letter dated February 9, 1995, the complainant requested that he be provided with copies of all "documents, reports and memoranda concerning any Internal Affairs or Patrol Operations Division investigations relating to Officer Reymundo Diaz," ("February request").

 

                3.             It is found that by letter dated February 15, 1995, the respondent acknowledged receipt of the complainant's February request and informed him that the request had been forwarded to the corporation counsel for review, and a determination of "what records, if any, would be made available."

 

                4.             It is found that by letter dated May 29, 1995, the respondent informed the complainant that the requested records were exempt from disclosure under 1-19b(b), G.S.  Additionally, the respondent suggested the applicability of the exemption contained in 1-19(b)(2), G.S., since "some of the records [the complainant requested] would be 'personnel, medical or similar files'."

 

                5.             By letter of complaint dated June 5, 1995, and filed with the Commission on June 7, 1995, the complainant appealed the respondent's denial of his February request.

 

Docket #FIC 95-193                                             Page Two

 

                6.             It is found that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

                7.             Section 1-19b(b)(1), G.S., as amended in 1994, states in relevant part that:

 

                Nothing in sections 1-15, et. seq., shall be deemed in any manner to (1) ... limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state ...

 

                8.             It is found that the complainant is an attorney who represents the plaintiff in a civil action against Officer Diaz and the City of Hartford ("civil action").

 

                9.             It is found that on July 27, 1995--more than five months after the complainant's February request--the plaintiff made a request for production of documents relating to Officer Diaz, including "Internal Affairs reports or investigations."

 

                10.           It is found that on or about August 22, 1995, the defendant City of Hartford filed its objection to the plaintiff's request for production in connection with the civil action.

 

                11.           The respondent claims that the complainant's February request would result in the disclosure of the same information requested in the plaintiff's request for production, and therefore compliance is not required pursuant to 1-19b(b), G.S.

 

                12.           It is found that the complainant's February request and the plaintiff's request for production are separate requests and given the facts of this case should be treated as such.

 

                13.           Upon the facts of this case it is found that 1-19b(b)(1), G.S., as amended, does not bar disclosure of the public records at issue here.

 

                14.           The respondent next contends that the requested records are exempt from disclosure under 1-19(b)(2), G.S.

 

                15.           Section 1-19(b)(2), G.S., provides that disclosure shall not be required of "personnel, medical or similar files, the disclosure of which would constitute an invasion of personal privacy."

 

Docket #FIC 95-193                                             Page Three

 

                16.  Perkins v. FOI Commission, 228 Conn. 158 (1993), sets forth the standard for the exemption contained in 1-19(b)(2), G.S.  The claimant has a twofold burden of proof:

 

                                First, [he] must establish that the files in question are within the categories of files protected by the exemption, that is, personnel, medical or 'similar' files.  Second, [he] must show that disclosure of the records 'would constitute an invasion of personal privacy.'

 

                17.  The Court in Perkins further instructs:

 

                                [T]he invasion of personal privacy exception of 1-19(b)(2) precludes disclosure, therefore, only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.  [Emphasis added.]

 

                18.           The subject of the records at issue, Officer Diaz, did not appear at the Commission's hearing on this matter.

 

                19.           It is found that the respondent failed to prove that the requested records are "personnel, medical or similar files" within the meaning of 1-19(b)(2), G.S.

 

                20.           It is found that documentation of misconduct by Officer Diaz, the actions or activity constituting such misconduct, and the discipline, if any, meted out to him, pertain to a legitimate matter of public concern.

 

                21.  It is found further that the respondent failed to prove that disclosure of the requested records would be highly offensive to a reasonable person.

 

                22.           It is therefore concluded that the respondent failed to prove that the requested records are exempt from disclosure under 1-19(b)(2), G.S.

 

                23.           It is therefore concluded that the respondent's failure to provide the complainant with copies of the requested records violated the provisions of 1-15 and 1-19(a), G.S.

 

Docket #FIC 95-193                                             Page Four

 

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

 

                1.             Forthwith, the respondent shall provide the complainant with a copy of the requested records, as more fully described in paragraph 2 of the findings, above, free of charge, and furnish to the complainant an affidavit stating that the records provided constitute the only records responsive to his February request.

 

                2.             In complying with paragraph 1 of this order, the respondent may redact the identities of, and personally identifiable information concerning individuals other than Officer Diaz.

 

                3.             If no records exist which are responsive to the complainant's February request, then the respondent shall execute an affidavit detailing the particulars of the search conducted and stating that no such documents exist.  The respondent shall provide the complainant with such affidavit within seven days of the date of the mailing of notice of final decision in this case.

 

                4.             Henceforth, the respondent shall strictly comply with the public records requirements set forth in 1-15 and 1-19(a), G.S.

 

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 95-193                                             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:

Terence P. Sexton

c/o Jefferson David Jelly, Esq.

15 North Main Street - 3rd floor

Southwest Suite, P.O. Box 270697

West Hartford, CT 06127-0697

 

Chief of Police, Hartford Police Department

c/o Karen Buffkin, Esq.

Office of Corporation Counsel

550 Main Street

Hartford, CT 06103

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission