FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on December 4, 1996, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of § 1-18a(a), G.S.

2. It is found that by letter dated May 4, 1996, the complainant requested that the respondent provide him with access to all records regarding a June 27, 1995 incident during which the complainant was arrested by state police trooper James Covey (hereinafter "Marion incident"). Specifically, the complainant requested the following records concerning case #CR95-91272 (hereinafter "requested records"):

a. all tapes, recordings and documentation, including logs, regarding oral or written transmissions by troopers Covey, Cancellaro and Dency and all other state police personnel, concerning state police case #D95-130229, occurring between 5:00 a.m. and 11:00 a.m. on June 27, 1995;

b. Covey’s employee time records for the month of June 1995;

c. the complainant’s fingerprints and photographs taken by the respondent;

d. the micro-cassette recording of conversations on the morning of June 27, 1995 listed on Covey’s evidence sheet;

e. a knife and a handgun permit taken by the police during the Marion incident; and

f. answers to numerous questions concerning the Marion incident.

3. Having failed to receive access to the requested records, the complainant, by letter dated May 20, 1996 and filed with the Commission on May 23, 1996, alleged that the respondent violated the Freedom of Information ("FOI") Act by denying him access to the requested records.

4. It is found that the respondent created various records, including investigation reports, tapes, fingerprints and photographs in connection with the Marion incident.

5. It is concluded that the records created by the respondent and described in paragraph 4 of the findings, above, are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

6. It is found that the criminal case pertaining to the Marion incident, CR95-91272, was disposed of prior to the complainant’s May 4, 1996 records request.

7. With respect to the records requested and described in paragraph 2a. of the findings, above, it is found that the respondent maintains investigation records and reports and by letter dated July 25, 1996, offered to provide the complainant with a copy of such records and reports at a cost of twenty-five cents per page. It is found that by letter dated September 5, 1996, the respondent provided the complainant with a copy of the investigation records and reports.

8. It is found that the respondent did not respond to the complainant’s request for tapes.

9. It is found that the respondent generally maintains tapes for sixty days, and longer only when a request for such tapes is received.

10. It is found that the respondent may have already destroyed all tapes responsive to the complainant’s request, however, the respondent failed to prove whether such tapes exist or have been destroyed.

11. It is concluded that the respondent’s provision of access to the investigation records and reports by letter dated July 25, 1996, approximately eleven weeks after the complainant’s May 4, 1996 request, was not prompt within the meaning of § § 1-19(a), G.S., and therefore the respondent violated those provisions of the FOI Act.

12. It is further concluded that the respondent’s failure to respond to the complainant’s request for tapes violates § 1-21i(a), G.S.

13. With respect to the records requested and described in paragraph 2b. of the findings above, it is found that the respondent maintains Covey’s employee time records, and that such records are public records within the meaning of § § 1-18a(d) and 1-19(a), G.S.

14. It is found that Covey objected to the release of the time records on July 15, 1996, indicating that the disclosure of such records would constitute an invasion of his privacy.

15. It is found that by letter dated July 25, 1996, the respondent informed the complainant of Covey’s objection to disclosure.

16. At the hearing on this matter, Covey indicated that the complainant had used obscene language to him, that he felt threatened by the complainant and concern for his safety, and that release of his time records would reveal the hours he presently works.

17. Section 1-19(b)(2), G.S., permits the nondisclosure of : "[p]ersonnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy."

18. It is found that the time records constitute personnel or similar files within the meaning of § 1-19(b)(2), G.S.

19. It is also found however, that the respondent’s claim with respect to § 1-19(b)(2), G.S., does not implicate Covey’s personal privacy, but rather concerns Covey’s personal safety.

20. It is further found that the disclosure of the time records in questions would not be highly offensive to the reasonable person.

21. It is further found that the time records in question constitute a matter of legitimate public concern.

22. It is therefore concluded that the time records in question are not exempt from disclosure pursuant to § 1-19(b)(2), G.S., and that the respondent violated § § 1-15(a) and 1-19(a), G.S., when he failed to provide the complainant with such records.

23. With respect to the records requested and described in paragraph 2c. of the findings, above, it is found that the complainant is requesting the return of his fingerprints and photographs taken at the time of his arrest.

24. Section 29-12, G.S., requires that the respondent take the fingerprints and physical description of all persons arrested for a crime. In addition, § 29-15, G.S., requires that the respondent return the fingerprints and photographs and all such copies to any person, having no record of prior criminal conviction who has been found not guilty of the offense charged or who has had such charge dismissed or nolled.

25. It is concluded that enforcement of § 29-12, G.S., does not fall within the jurisdiction of the Commission and consequently, the Commission lacks the power to order the return of the fingerprints and photographs in question.

26. It is therefore concluded that the respondent did not violate § § 1-15(a) and 1-19(a), G.S., when he failed to return the fingerprints and photographs in question.

27. With respect to the records requested and described in paragraph 2d. of the findings above, it is found that such tape no longer exists as it was taped-over by Covey upon the disposition of the Marion case, and prior to the complainant’s May 4, 1996 request.

28. It is therefore concluded that the respondent did not violate § § 1-15(a) and 1-19(a), G.S., when he failed to provide the complainant with a copy of the requested tape.

29. With respect to the handgun permit and the knife requested and described in paragraph 2e. of the findings above, it is found that at the time of the arrest Covey seized such handgun permit and knife from the complainant, and those items were forwarded to the State’s Attorney’s Office and used as evidence in the Marion case.

30. It is found that the knife was ordered destroyed by court order on March 20, 1996.

31. It is concluded that this Commission has no jurisdiction to order the return of such "seized" items which fall within the purview of § 54-36a, G.S., et seq.

32. With respect to the complainant’s request described in paragraph 2f. of the findings, above, it is found that the complainant is seeking answers to numerous questions pertaining to the Marion incident.

33. It is found that such request is not a request for public records within the meaning of § § 1-15 and 1-19(a), G.S.

34. It is concluded that the respondent is not required under the FOI Act to answer questions, or to create records that contain answers to questions.

35. It is therefore concluded that the respondent did not violate § § 1-15(a) and 1-19(a), G.S., when he failed to answer the complainant’s questions.

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

1. With respect to the records requested and described in paragraph 2a. of the findings, above, the respondent shall forthwith conduct a thorough search of its records and provide the complainant with any additional records located, that are responsive to his request, including tapes, that may exist, such additional records to be provided free of charge. If no additional records exist, the respondent shall forthwith provide the complainant with an affidavit, signed by the respondent, attesting that a copy of all existing records responsive to the complainant’s request have been provided to the complainant, and indicating the date such copies were provided. In addition, such affidavit shall attest to whether tapes pertaining to the Marion case existed at the date of the complainant’s request (including the tape described at paragraph 2d., of the findings, above), and whether all such tapes have been destroyed, and the date destroyed.

2. Under the circumstances of this case, the Commission, in its discretion, declines to issue an order of disclosure with respect to the records requested and described in paragraph 2b of the findings, above.

3. Henceforth, the respondent shall strictly comply with the time provisions for providing access to public records, as set forth in § § 1-19(a) and 1-15(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 23, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

Robert P. Marion
RPM Enterprises, Inc.
Route 12
Wilsonville, CT 06255

Commander, Troop D, State of Connecticut, Department of Public Safety, Division of State Police
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-205/FD/eal/04301997