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