FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

 

In the Matter of a Complaint by                                                Final Decision

 

Clemens C. Kuhlig, Sr.,

 

                        Complainant

 

            against                                                                          Docket #FIC 1995-397

 

State of Connecticut, Department of Public

Safety, Division of State Police and Legal

Affairs Unit, State of Connecticut, Department

of Public Safety,

 

                        Respondents                                                     September 25, 1996

 

            The above-captioned matter was heard as a contested case on May 29, 1996, 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.         By letter of complaint, dated November 13, 1995 and filed with the Commission on November 16, 1995, the complainant appealed alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying him access to copies of tape recordings or transcripts pertaining to his arrest for breach of peace in February 1992, (hereinafter “requested records”).

 

3.         It is found that the complainant, by letter dated November 1, 1995, requested that the respondents provide him with a copy of the requested records.

 

4.         It is found that the respondent legal affairs unit denied the request by letter dated November 13, 1995, indicating that no tapes of conversations pertaining to the arrest exist; that tapes are maintained for sixty days unless a request to preserve the tapes is made within the sixty days; and that if there were tapes, no request to preserve had been made.

 

 

 

Docket #FIC 1995-397                                                                                   Page 2

 

 

5.         It is found that the complainant has been trying to obtain the requested records from the respondents since August 1992.

 

6.         It is found that following the complainant’s August 1992 request, the respondent legal affairs unit informed the complainant, by letter dated August 18, 1992, that the request was being reviewed and that he would be notified as soon as possible of the results.

 

7.         It is found that the respondent then, by letter dated September 15, 1992, informed the complainant that the requested records could not be disclosed during the pendancy of the criminal prosecution.

 

8.         It is found that on December 14, 1992, the complainant renewed his request to the respondents for the records indicating that the criminal prosecution was no longer pending.

 

9.         It is found that the respondent legal affairs unit, by letter dated December 21, 1992, informed the complainant that a search for “transcripts or tapes” would be conducted.

 

10.       It is found that the respondent legal affairs unit, by letter dated March 2, 1993, eventually informed the complainant that no tapes exist.

 

11.       It is found that the complainant once again requested the records from the respondents in August, 1995, following information that tapes can generally be retrieved.  The respondent legal affairs unit then informed the complainant that his August 1995 request was being reviewed, and that upon its receipt of written assurance that the requested information is not for use in pending litigation to which the state is a party, the records would be provided.

 

12.       Following the complainant’s receipt of the respondents’ response described in paragraph 11, above, the complainant once again renewed his request for the records by letter dated November 1, 1995, described in paragraph 3, above.

 

13.       It is found that the respondents do not maintain the requested records at this time.

 

14.       It is found that sometime between the complainant’s August 1992 and November 1995 requests the tapes were erased by the respondents.

 

15.       The complainant contends that the respondents should not have erased the requested tapes.

Docket #FIC 1995-397                                                                                   Page 3

 

 

16.       It is found that the laws pertaining to the retention and destruction of public records are matters over which the state’s Public Records Administrator has jurisdiction and is not a matter within the jurisdiction of the Commission.

 

17.       Accordingly, it is concluded that the Commission lacks jurisdiction over the issue of the retention and destruction of the subject tape recording.

 

18.       It is therefore concluded that the respondents did not violate §§1-15 and 1-19(a), G.S.

 

19.       At the hearing into this matter, the complainant alleged that the respondents have failed to comply with his request to erase certain records pertaining to the arrest.

 

20.       It is found that the complainant’s allegation described in paragraph 19, above, is not a matter within the jurisdiction of the Commission.

 

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

 

1.         The complaint is dismissed.

 

            2.         The Commission believes that in this matter, the respondents did not act in a manner consistent with the best traditions of state government.  Knowing that the complainant was seeking access to the requested tapes, public service should dictate that those tapes be preserved until the matter is resolved.  Indeed, if the Public Records Administrator had known that there was a pending request for the tapes, it is doubtful she would have given leave to destroy them.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1996.

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission


Docket # FIC 1995-397                                                                                              Page 4

 

 

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:

 

Clemens C. Kuhlig, Sr.

25 Armbruster Road

Terryville, CT 06786

 

 

State of Connecticut, Department of Public Safety, Division of State Police and Legal Affairs Unit, State of Connecticut, Department of Public Safety

c/o Richard Couture, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission