FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
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Joe Johnson and Greenwich Time, |
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Complainants |
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against |
Docket #FIC 1997-085 |
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Chief of Police, Greenwich Police Department |
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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