FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by

FINAL DECISION

 

 

Joe Johnson and Greenwich

Time,

 

 

 

Complainants

 

 

 

against

Docket #FIC 1997-085

 

 

Chief of Police, Greenwich Police

Department

 

 

 

Respondent

January 28, 1998

 

 

            The above-captioned matter was heard as a contested case on August 4, 1997, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the hearing on this matter, Silver Shield Association, Inc., the collective bargaining unit for all uniformed police officers in the town of Greenwich and Kevin Mr. Chiarito, the subject of the records at issue, requested and were granted intervenor status.

 

            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(1), G.S. (prior to October 1, 1997, §1-18a(a), G.S.).

 

2.  By completion of a form supplied by the respondent’s department dated February 25, 1997 the complainants requested that the respondent provide them with a copy of all civilian and internal affairs complaints against former police officer Kevin Chiarito.

 

3.  By letter dated March 5, 1997, the respondent informed the complainants that Mr. Chiarito had objected to disclosure of the requested records on February 27, 1997 and that the respondent was therefore prohibited from disclosing the requested records unless ordered to do so by the Commission.

 

4.  By undated letter filed with the Commission on March 11, 1997, the complainants appealed the respondent’s denial of access to the requested records.

 

5.     It is found that the requested records are public records within the meaning of §§1-18a(5) (prior to October 1, 1997, §1-18a(d), G.S.) and 1-19(a), G.S.

 

6.     It is found that Mr. Chiarito was no longer employed by the Greenwich Police Department (“GPD”) at the time of the complainants’ request.

 

7.  The respondent claims that he determined that disclosure would constitute an invasion of Mr. Chiarito’s privacy under §1-19(b)(2), G.S., notified Mr. Chiarito in accordance with §1-20a(c), G. S., received his objection and therefore denied access to the requested records.

 

8.  Other than the concern regarding Mr. Chiarito’s privacy described in paragraph 7, above, the respondent’s only independent issue with respect to disclosure of the requested records concerned the disclosure of the names of third persons who either provided information to the GPD, including police officers and others who provided statements, and those whose names otherwise appear in the subject records, and any other personally identifying information with respect to such persons.  The complainants agreed at the hearing on this matter to amend their complaint to exclude the names, and all other personally identifying information of third parties; therefore, no issue remains with respect to the disclosure of such information in this case.

 

9.  The intervenors contend that the requested records are exempt from disclosure pursuant to §§1-19(b)(2) and 1-19(b)(3)(G), G.S.

 

10.  Section 1-15(a), G.S., provides in relevant part, that “any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

11.  However, §1-19(b)(2), G.S., does not require the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

12.  In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in §1-19(b)(2), G.S.  The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

 

13.  It is found that the records that are responsive to the complainants’ request are contained in an internal affairs investigation file concerning Mr. Chiarito, which investigation was terminated at the time of Mr. Chiarito’s resignation from the GPD on February 14, 1997.  The respondent submitted the subject file to the Commission for in camera inspection.

 

14.  It is found that the subject records submitted to the Commission for in camera inspection constitute personnel or similar files within the meaning of §1-19(b)(2), G.S. 

 

15.  It is found that the subject file submitted to the Commission for in camera inspection consists of 138 pages, the pages numbered and categorized by the Commission, as follows:

 

(1)  letter to certain third parties providing notification of Mr. Chiarito’s resignation (#1997-085-1);

 

(2)  table of contents (#1997-085-2);

 

(3)  an investigation report (#s 1997-085-3 - 1997- 1997-085-24, inclusive);

 

(4)  statements of officers of the GPD and civilians concerning alleged conduct on the part of Mr. Chiarito while on-duty (#s 1997-085-25 - 1997- 1997-085- 64, inclusive);

 

(5)  pre-employment records supplied by a police department in another state to which Mr. Chiarito had applied for employment in 1994 (#s 1997-085-65 - 1997-085- 68, inclusive);

 

(6)  records provided by another police department in Connecticut concerning alleged incidents that took place there involving Mr. Chiarito while off-duty (#s 1997-085-69 - 1997-84, excluding 1997-085-72 and 1997-085-73, which pertain to the GPD’s investigation);

 

(7)  violations of the GPD police manual and portions of the GPD manual and policies (#s 1997-085-85 - 1997-085-105, inclusive);

 

(8)  interview questions and some answers provided by Mr. Chiarito during the investigation (#s 1997-085-106 - 1997-085-136, inclusive);

 

(9)  an agreement between the GPD and Mr. Chiarito concerning payment upon his resignation (#1997-085-137); and

 

(10) Mr. Chiarito’s letter of resignation (#1997-085-138).

 

16.  It is found that with the exception of those records identified in paragraph 17, below, the records submitted for in camera inspection pertain to a legitimate matter of public concern because the public has a significant interest and concern in knowing about the conduct of police personnel while on-duty and off-duty conduct of police personnel that reflects upon their suitability for the kind of public employment that requires a significant amount of public trust; and whether and how allegations of the nature at issue in this case are handled by the police department investigating them. 

 

17.  It is further found however, that in camera document #s 1996-085-17 (near the bottom of the page), and 1997-085-54 (near the middle of the page) containing a description by a third party of certain physical characteristics of Mr. Chiarito, do not pertain to legitimate matters of public concern and their disclosure would be highly offensive to a reasonable person.  It is therefore concluded that such portions of in camera document #s 1997-085-17 and 1997-085-54 are exempt from disclosure under §1-19(b)(2), G.S.

 

18.  It is further concluded that the remaining records and portions thereof contained in the subject file are not exempt from disclosure pursuant to §1-19(b)(2), G.S.

 

19.  Section 1-19(b)(3)(G), G.S., permits the nondisclosure of:

 

“records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … (G) uncorroborated allegations [that a person has engaged in criminal activity]subject to destruction pursuant to 1-20c….”

 

20.  It is found that the intervenors do not maintain the subject records and are not law enforcement agencies within the meaning of §1-19(b)(3), G.S.  

 

21.  It is further found that the intervenors failed to prove that the subject records were compiled in connection with the detection or investigation of crime or that the records contain uncorroborated allegations of criminal activity within the meaning of §1-19(b)(3)(G), G.S.

 

22.  It is therefore concluded that the intervenors cannot rely on, and failed to prove, the application of §1-19(b)(3)(G), G.S., to the subject file.

 

23.  It is further concluded that the subject records, with the exception of those records described in paragraph 17, above, are not exempt and are subject to disclosure pursuant to §§1-15(a) and 1-19(a), G.S.

 

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

 

1.  The respondent shall forthwith provide the complainants with a copy of the records contained in the subject file, with the exception of those portions of in camera document #s  1997-085-17 and 1997-085-54, described in paragraph 17 of the findings, above.

 

2.  In complying with paragraph 1 of the order above, the respondent may redact the names of, and all personally identifiable information with respect to third parties who provided information to the GPD related to the subject investigation or whose names otherwise appear in the subject records, in accordance with the agreement of the parties described in paragraph 8 of the findings, above.

 

 

                Approved by Order of the Freedom of Information Commission at its regular meeting of January 28, 1998.

 

 

 

 

 

_________________________

Doris V. Luetjen

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:

 

Joe Johnson and Greenwich Time

c/o Kevin S. Murphy

Tyler, Cooper, and Alcorn

City Place, 35th Floor

Hartford, CT 06103

 

Chief of Police, Greenwich Police Department

c/o John E. Meerbergen

101 Field Point Road

Greenwich, CT 06830

 

Intervenor

Cary L. Fleisher

41 West Putnam Avenue

Greenwich, CT 06850

 

 

 

 

 

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

 

 

 

FIC1997-085/FD/tcg/01281998