FIC2001-403

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Edward Franklin Romig and Mary Stacey, Co-Administrators for the Estate of William DeWitt Romig and Individually,
		Complainants
	against		Docket #FIC 2001-403
Chief, Fire Department, Town of Greenwich; Chief, Police Department, Town of Greenwich; and Chief Medical Examiner, State of Connecticut, Office of the Chief Medical Examiner,
		Respondent	August 14, 2002

The above-captioned matter was heard as a contested case on October 3, 2001, at which time the complainants 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 §1-200(1), G.S.

2. It is found that by letter dated July 20, 2001 the complainants made a request to the respondent Chief of the Greenwich Fire Department (hereinafter “respondent fire chief”) for a certified copy of:

a. “any incident reports obtained, prepared or created by the Town of Greenwich Fire Department and/or its agents, servants and/or employees, regarding the fatal fire which occurred on December 9, 2000 at approximately 7:00 o’clock a.m. at 37 Prospect Street in Greenwich, Connecticut;”

b. “any investigative reports, supplemental brief, memorandum, obtained, prepared or created by the Town of Greenwich Fire Department, its agents, servants and/or employees with regards to the fatal fire which occurred at 37 Prospect Street in Greenwich, Connecticut;”

c. “any memorandum, sketch, chart, written statements, reports or photographs obtained, prepared or created by the Town of Greenwich Fire Department and/or its agents, servant and/or employees with regards to the fatal fire which occurred at 37 Prospect Street in Greenwich, Connecticut;”

d. “any log roll call lists of firefighters on duty the day of December 8, 2000 and December 9, 2000;”

e. “any videotapes, tape recordings, 911 calls, radio calls, dispatch calls, recordings obtained, recorded, prepared or created by the Town of Greenwich Fire Department and/or its agents, servants and/or employees with regards to the fatal fire which occurred at 37 Prospect Street in Greenwich, Connecticut;”

f. “any reports, notes, materials and list of investigator’s reports, notes, materials, inspections and requirements for occupancy, permit requirements for occupancy conducted, prepared, reported, documented, obtained and/or created by the Town of Greenwich Fire Department, Fire Marshall and/or its agents, servants and/or employees regarding the property at 37 Prospect Street in Greenwich, Connecticut;”

g. “any fire run report, including first in apparatus, responders, list of apparatus responding, water supply, attack lines, direction of attack, incident commander, sector officers, lists of any and all apparatus or equipment used, standard operating guides in place at the time, location of apparatus and command post, fire inspection reports, any and all firefighter officer interviews with regards to the fatal fire at 37 Prospect Street in Greenwich, Connecticut;” and

h. “any pre-fire plan for area or occupancy, investigator reports, notes, materials regarding the location of the fatal fire located at 37 Prospect Street in Greenwich, Connecticut.”

3. It is found that by letter dated July 19, 2001, the complainants made a request to the respondent Chief of the Greenwich Police Department (hereinafter “respondent police chief”) for certified copies of:

a. “any memorandum, sketch, chart, written statements, reports or photographs obtained, prepared or created by the Town of Greenwich Police Department and/or its agents, servants and/or employees regarding the fatal fire and homicide which occurred at 37 Prospect Street in Greenwich, Connecticut;”

b. “any videotapes, tape recordings, 911 calls, radio calls, dispatch calls, recordings obtained, prepared, recorded or created by the Town of Greenwich Police and/or Fire departments and/or its agents, servants and/or employees;”

c. “any incident reports obtained, prepared or created by the Town of Greenwich Police Department, its agents, servants and/or employees regarding the fatal fire and homicide which occurred on December 9, 2000 at 37 Prospect Street in Greenwich, Connecticut;” and

d. “any investigative report, supplemental, brief, memorandum, obtained, prepared or created by the Town of Greenwich Police Department, it’s agents, servants and/or employees, regarding the fatal fire and homicide which occurred at 37 Prospect Street in Greenwich, Connecticut.”

4. It is found that by letter dated July 19, 2001, the complainants made a request to the respondent Chief Medical Examiner, but at the hearing on this matter, the complainants withdrew the complaint with respect to such request.

5. It is found that by letter dated July 30, 2001 the respondent police chief denied the complainants’ request for records indicating that an arrest had been made, that there was a pending court action and that release of the report was controlled by the office of the Chief State’s Attorney.

6. It is found that by letter dated August 1, 2001, the assistant town attorney for the town of Greenwich responded to the complainants’ request on behalf of the respondent fire chief and informed the complainants that the requested records could not be disclosed because there was an on-going criminal investigation and prosecution of the incident that is the subject of their request, but furthermore the information requested had been forwarded to the police department.

7. By letter dated August 17, 2001 and filed on August 21, 2001, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying the complainants’ records requests.

8. Section 1-210(a), G.S., provides in relevant part that:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right . . . to receive a copy of such records in accordance with the provisions of section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

9. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record . . . .”

10. It is found that to the extent the requested records exist and are maintained by the respondents, such records are public records within the meaning of §1-210(a), G.S.

11. It is found that there was a fire at a rooming house in the Town of Greenwich on or about December 9, 2001 in which the complainants’ son, one of the roomers, died.

12. It is found that one of the roomers, Joseph Bennett, confessed to starting the fire and was subsequently charged with, and arrested for, committing arson.

13. It is found that the Greenwich Fire Department conducted an arson investigation and its police department conducted a criminal investigation into the rooming house fire, both of which were concluded at the time of the complainants’ requests.

14. It is found that at the conclusion of its investigation, the Greenwich Fire Department submitted its investigation records and report to the police department, which was made part of the police department’s investigation records and report that was submitted to the Chief State’s Attorney’s office. It is found that the Greenwich Police Department maintains a copy of all records submitted to the Chief State’s Attorney’s office.

15. It is found that the prosecution of Joseph Bennett was pending at the time of the complainants’ requests and was still pending at the time of the hearing on this matter.

16. The respondents’ offered two arguments in support of their denial of access to the requested records. First, the respondents argue that the requested records are exempt from disclosure pursuant to §1-210(b)(3), G.S., because the records are records of law enforcement agencies not otherwise available to the public which were compiled in connection with the investigation of a crime and that disclosure of the records would result in the disclosure of the identity of witnesses who would be subject to intimidation if their identities were known; witness statements; and investigatory techniques not otherwise known to the general public. Second, the respondents argue that the requested records are in the possession of the state’s attorney’s office and cannot be disclosed unless authorized by that office. In furtherance of that argument the respondents claimed that under Gifford v. Freedom of Information Commission, 227 Conn. 641,652,631 A.2d 252 (1993), the records serve as the basis for the prosecutor to make future decisions regarding his case and in determining whether further investigation is necessary. The respondents argue that if they were obligated to disclose the records during the pendency of the criminal prosecution, the defendant’s right to a fair trial could be jeopardized by any publicity and witnesses could be identified and intimidated. The respondents also contend that the state’s attorney’s rights and his ability to rely on the requested records would be adversely affected and that there would be a very real prejudice to the ongoing criminal prosecution if the commission ordered disclosure of the requested records.

17. With respect to the respondents’ first argument, §1-210(b)(3), G.S., provides that nothing in the FOI Act shall be construed to require the disclosure 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

18. It is found that the requested records are records of law enforcement agencies not otherwise available to the public that were compiled in connection with the investigation of a crime.

19. It is also found that disclosure of some of the records would result in the disclosure of the identity of witnesses.

20. It is further found that the respondents failed to prove that such witnesses’ would be subject to threat or intimidation if their identities were known and this Commission declines to adopt the concept that such would be the case merely by virtue of the fact that they are witnesses.

21. Furthermore, it is found that the respondents’ argument that such witnesses’ would be subject to intimidation if their identities were known is incredible when the testimony of the respondent police chief indicated that there was no threat that the witnesses’ safety would be endangered if their identities were known.

22. Likewise, it is found that although the respondents argued that disclosure of the records would result in the disclosure of investigatory techniques not otherwise known to the public, credible evidence at the hearing directly contradicts that argument. Specifically, the testimony of the respondent police chief indicated that disclosure of the records would not disclose investigatory techniques.

23. It is found that the requested records contain witness statements but the respondents failed to prove that such statements are signed witness statements as required by §1-210(b)(3)(B), G.S.

24. The respondents failed to meet the evidentiary burden required to support the claimed exemption under §1-210(b)(3)(C), G.S., with respect to the following records:

a. any log roll call lists of firefighters on duty the day of December 8, 2000 and

December 9, 2000;

b. any fire run report, including first-in apparatus, responders, list of apparatus

responding, water supply, attack lines, direction of attack, incident

commander, sector officers, lists of any and all apparatus or equipment used,

standard operating guides in place at the time, and location of apparatus and

command post with regards to the fatal fire at 37 Prospect Street in Greenwich,

Connecticut; and

c. any pre-fire plan for area or occupancy at 37 Prospect Street in Greenwich,

Connecticut

25. With respect to the requested records not listed in paragraph 24, above, it is found that this Commission cannot conclude that disclosure of such records would not be harmful to the pending law enforcement action described in paragraph 15, above.

26. Notwithstanding the finding in paragraph 25, above, §1-215, G.S., provides in relevant part that

(a) Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person . . . shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210 . . . .

(b) For the purposes of this section, "record of the arrest" means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency: The arrest report, incident report, news release or other similar report of the arrest of a person.

27. It is found that pursuant to §1-215, G.S., the respondent police chief, at a minimum, should have provided the complainants with the record of arrest as defined in §1-215(b), G.S., but failed to do so.

28. Consequently, it is concluded that the respondent police chief violated the disclosure provisions of §§1-210(a), 1-212(a), and 1-215(a), G.S., by failing to provide the complainants with the record of arrest as defined in §1-215(b), G.S.

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

1. Forthwith, the respondent police chief shall provide the complainants with a copy of the record of arrest as defined in §1-215(b), G.S., related to the arrest described in paragraph 12 of the findings, above, free of charge.

2. Forthwith, the respondent fire chief shall provide the complainants with a copy of the following records:

a. any log roll call lists of firefighters on duty the day of December 8, 2000 and

December 9, 2000;

b. any fire run report, including first-in apparatus, responders, list of apparatus

responding, water supply, attack lines, direction of attack, incident

commander, sector officers, lists of any and all apparatus or equipment used,

standard operating guides in place at the time, and location of apparatus and

command post with regards to the fatal fire at 37 Prospect Street in Greenwich,

Connecticut; and

c. any pre-fire plan for area or occupancy at 37 Prospect Street in Greenwich,

Connecticut

3. The Commission notes that the Connecticut State Police have released to the complainants their investigation records pertaining to the incidents described in paragraph 11 and 12, of the findings above and believes that the respondent police chief should take this into account in its dealings with the complainants.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 14, 2002.

_______________________________________

Petrea A. Jones

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:

Edward Franklin Romig and Mary

Stacey, Co-Administrators for the

Estate of William DeWitt Romig

and Individually

c/o Thomas J. Hickey, Esq.

Sherman & Richichi

27 Fifth Street

Stamford, CT 06905

Chief, Fire Department, Town of

Greenwich; Chief, Police Department,

Town of Greenwich

c/o Aamina Ahmad, Esq.

Assistant Town Attorney

101 Field Point Road

Greenwich, CT 06830

Chief Medical Examiner,

State of Connecticut,

Office of the Chief Medical Examiner

c/o Peter L. Brown, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-403/FD/paj/8/15/2002