FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Complainants | |||
| against | Docket #FIC 2002-020 | ||
|
Chief, Police Department, Town of Newington and Brendan Fitzgerald, |
|||
| Respondents | October 23, 2002 | ||
The above-captioned matter was heard as a contested case on February 25, 2002, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint. The records at issue were reviewed in camera. Brendan Fitzgerald, the subject of the records at issue was granted party status pursuant to §1-206(b)(1), G.S. Mr. Fitzgerald appeared at the hearing in this matter and was represented by counsel. The case caption was modified to reflect that Mr. Fitzgerald is a party respondent in this matter.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent chief is a public agency within the meaning of §1-200(1), G.S.
2. It is found that Brendan Fitzgerald was employed as a police officer with the Newington Police Department until his suspension in November 2001. He was arrested in December 2001.
3. It is found that by letter dated January 3, 2002, the complainants requested that Lt. Nicholas Miano, Acting Chief of the Newington Police Department, provide them with the following records (hereinafter “requested records”):
a) documents pertaining to any complaints made against Fitzgerald by citizens, local police or other law enforcement agencies; and
b) records pertaining to any disciplinary action taken against Fitzgerald while he was a police officer.
4. It is found that by letter dated January 10, 2002, counsel for the respondent chief provided the complainants with some of the requested records and informed the complainants that certain of the requested records may be exempt from disclosure pursuant to §§1-210(b)(1), (2) and/or (3), G.S., and further that, upon review of the requested records the respondent chief reasonably believed that the disclosure of “some of the requested records would legally constitute an invasion of privacy” and that the respondent chief notified the employee and his collective bargaining representative pursuant to §1-214(b), G.S.
5. Thereafter, by letter of complaint dated and filed with the Commission on January 16, 2002, the complainants appealed to the Commission alleging that the respondent chief violated the Freedom of Information (“FOI”) Act by denying them access to the requested records that concern Mr. Fitzgerald, a former employee of the respondent department who was arrested on insurance fraud charges.
6. It is found that Mr. Fitzgerald and his collective bargaining representative objected in writing to disclosure of the requested records on January 16 and 18, 2002. Thereafter, by letter dated January 24, 2002, the respondent chief’s counsel informed the complainants of such objection and that in light of the objection the respondent chief would not provide them with the requested records unless ordered to so by the FOI Commission.
7. 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…shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records….”
8. It is found that the respondent chief maintains records that are responsive to the complainants’ request and such records are public records within the meaning of §1-210(a), G.S.
9. The respondent chief submitted the records at issue to the Commission for an in camera inspection (hereinafter “in camera records”). The in camera records consist of: a) a manilla folder containing 58 pages of records, which pages have been designated IC# 2002-020-1 through 2002-020-058 for identification purposes, and b) a black binder entitled I/A Ongoing Criminal Investigation containing 206 pages of records, which pages have been designated IC# 2002-020-059 through 2002-020-264 for identification purposes. The records contained in the black binder consist of a) a Main Report b) Supplemental Reports c) IA Notification d) Arrest Report e) Insurance Claims records and f) Signed Witness Statements.
10. Respondent Fitzgerald claims that some of the in camera records, specifically, IC #s2002-020-4, 2002-020-7, 2002-020-10, 2002-020-16, 2002-020-17, 2002-020, 2002-020-35, 2002-020-39, 2002-020-40 and 2002-020-43 through 2002-020-58 are not relevant to the complainants’ request. He further claims that the remaining in camera records are exempt from disclosure pursuant to §1-210(b)(2), G.S. The respondent chief claims that IC# 2002-020-01 through IC# 2002-020-58 are exempt from disclosure pursuant to §1-210(b)(2), G.S., and that IC# 2002-020-059 through 2002-020-264 are exempt pursuant to §1-210(b)(3)(A), (B), (C) and/or (G), G.S.
11. Upon review of the in camera records it is found that all of the in camera records directly pertain to various Newington Police Department internal investigations of complaints and other incidents concerning Mr. Fitzgerald. It is also found that some of the in camera records concern discipline as well as exoneration of Mr. Fitzgerald.
12. It is therefore found that respondent Fitzgerald’s claim that IC #s2002-020-4, 2002-020-7, 2002-020-10, 2002-020-16, 2002-020-17, 2002-020, 2002-020-35, 2002-020-39, 2002-020-40 and 2002-020-43 through 2002-020-58 are not relevant to the complainants’ request is not supported by the record in this case.
13. With respect to the respondents’ claim of exemption pursuant to §1-210(b)(2), G.S., such provision permits the nondisclosure of “personnel or medical files and similar files” the disclosure of which would constitute an invasion of personal privacy.”
14. The Commission takes administrative notice of the final decision in contested case docket #FIC 2001-251, Fred Radford v. Chief, Police Department, Town of Trumbull (January 2002), with respect to the discussion of §1-210(b)(2), G.S., and Perkins v. Freedom of Information Commission, 228 Conn. 158, (1993).
15. The Supreme Court set forth the test for the §1-210(b)(2), G.S., claim of invasion of privacy in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).
16. Specifically, under the Perkins test, 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 that such information is highly offensive to a reasonable person.
17. It is found that IC# 2002-020-1 through 2002-020-264 constitute “personnel or medical files and similar files” within the meaning of §1-210(b)(2), G.S.
18. It is found that with the exception of the following in camera records, or portions thereof, the in camera records pertain to legitimate matters of public concern because the information contained therein concerns and implicates the conduct of Mr. Fitzgerald, while a public employee, and also discloses the process by which the respondent department conducted investigations into complaints concerning Mr. Fitzgerald:
19. It is also found that disclosure of the in camera records, except those described in paragraph 18 above, would not be highly offensive to a reasonable person. Therefore, it is concluded that disclosure of the in camera records, except those described in paragraph 18, would not constitute an invasion of privacy, and consequently such records are not exempt from disclosure pursuant to §1-210(b)(2), G.S.
20. It is found that there is no legitimate public interest in the disclosure of the records described in paragraph 18, above. It is also found that disclosure of the records described in paragraph 18, above would be highly offensive to a reasonable person. Consequently, it is concluded that disclosure of the records described in paragraph 18, above would constitute an invasion of privacy, and therefore such records are permissively exempt from disclosure pursuant to §1-210(b)(2), G.S.
21. It is also found that portions of in camera records IC# 2002-020-101 through 2002-020-157 and IC# 2002-020-217 through IC# 2002-020-264 (i.e. the Supplemental Reports and Witness Statements, respectively) contain the same information found to be highly offensive and of no legitimate public concern, as described in paragraph 18 above. Such information is therefore, also exempt from disclosure pursuant to §1-210(b)(2), G.S.
22. With respect to the respondent’s chief claim that IC# 2002-020-059 through 2002-020-264 are exempt from disclosure pursuant to §1-210(b)(3)(A), (B), (C) and/or (G), G.S., such provisions permit 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 (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 … (G) uncorroborated allegations subject to destruction pursuant to section 1-216.
23. Section 1-216, G.S., provides:
Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.
24. It is found that during September 2001, the respondent commenced an Internal Affairs as well as a criminal investigation into certain alleged misconduct on the part of Fitzgerald (hereinafter "the investigation").
25. It is found that in camera records IC# 2002-020-059 through 2002-020-264 are the records compiled in connection with the investigation.
26. It is further found that in camera records IC# 2002-020-059 through 2002-020-264 are records of law enforcement agencies compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G.S.
27. It is further found that portions of in camera records IC# 2002-020-059 through 2002-020-264 contain information “not otherwise available to the public” and the disclosure of which would not be in the public interest because it would result in the disclosure of 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 identities were made known, within the meaning of §1-210(b)(3)(A), G.S., and signed statements of witnesses, within the meaning of §1-210(b)(3)(B), G.S.
28. It is therefore concluded that the information described in paragraph 27, above, that would identify informants not otherwise known, or witnesses not otherwise known, and the signed statements of witnesses, are permissibly exempt from disclosure pursuant to §1-210(b)(3)(A) and (B), G.S., and therefore the respondent did not violate the FOI Act by failing to disclose such information.
29. With respect to the respondent chief’s claim that IC# 2002-020-059 through 2002-020-264 are exempt from disclosure pursuant to §1-210(b)(3)(C), G.S., the respondent chief failed to prove how disclosure of such information would be prejudicial to any prospective law enforcement action, within the meaning of §1-210(b)(3)(C), G.S. The respondent simply claimed, without any supporting or specific evidence that the investigation is “ongoing” and that IC# 2002-020-059 through 2002-020-264 are being evaluated to decide on future prosecution of the case against Fitzgerald. The respondent failed to explain or demonstrate why disclosure of IC# 2002-020-059 through 2002-020-264 would be prejudicial in this case.
30. It is therefore found that the respondent failed to prove that disclosure of IC# 2002-020-059 through 2002-020-264 would not be in the public interest because it would result in the disclosure of information to be used in a prospective law enforcement action and would be prejudicial to such action, within the meaning of §1-210(b)(3)(C), G.S.
31. Consequently, it is concluded that IC# 2002-020-059 through 2002-020-264 are not exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.
32. With respect to the respondent chief’s claim that IC# 2002-020-059 through 2002-020-264 are exempt from disclosure pursuant to §1-210(b)(3)(G), G.S., the Commission takes administrative notice of the findings in the Final Decision in contested case docket #FIC 94-291, Rachel Gottlieb and The Hartford Courant v. State of Connecticut, Department of Public Safety, Division of State Police, (hereinafter “FIC 94-291”) concerning the definition and meaning of the word “corroborate”. In FIC 94-291, finding 16, the Commission found that Black's Law Dictionary, Sixth Edition (1990), defines “corroborate” as "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence" and that “Ballentines Law Dictionary, Third Edition (1969) defines corroborate as "to state facts tending to produce confidence in the truth of a statement made by another" and that Funk & Wagnall New Standard Dictionary of the English Language (1946) defines corroborate as "to give increased support to; make more sure or evident."
33. In addition, In FIC 94-291, the Commission found in finding 13 that the records at issue there “contain similar accounts relayed to the respondent by different interviewees concerning the allegations under investigation”. The Commission went on to find in finding 17 that “the requested reports contain allegations which were corroborated.”
34. In this case, as in FIC 94-291, it is found that the IC# 2002-020-059 through 2002-020-264 contain similar accounts of certain incidents and information, that appear to strengthen or add weight and support to allegations of misconduct.
35. Consequently, it is found that IC# 2002-020-059 through 2002-020-264 contain allegations that are not “uncorroborated” within the meaning of §§1-210(b)(3)(G) and 1-216, G.S., and therefore it is concluded that IC# 2002-020-059 through 2002-020-264 are not exempt pursuant to §§1-210(b)(3)(G) and 1-216, G.S.
36. Therefore, it is concluded that the respondents violated §1-210(a), G.S., by failing to disclose to the complainants IC# 2002-020-059 through 2002-020-264 with the exception of those specific portions concluded to be exempt from disclosure pursuant to §1-210(b)(3)(A) and (B), G.S., as described in paragraphs 27 and 28, above.
37. It is further found that IC# 2002-020-059 through 2002-020-264 contain social security numbers and Fitzgerald’s home address. It is concluded that such social security numbers may be redacted pursuant to long standing Commission precedent. It is further concluded that Fitzgerald’s home address and any other police officer’s home address may be redacted pursuant to §1-217(a)(2), G.S., which provides that “[n]o public agency may disclose, under the Freedom of Information Act, the residential address of …(2) A sworn member of a municipal police department or a sworn member of the Division of State Police within the Department of Public Safety.”
38. It is further concluded that the respondent did not violate §1-210(a), G.S., when he failed to provide the complainant with access to inspect the in camera records found to be exempt and described in paragraphs 18, 21, 27 and 28 above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall redact the following from the in camera records and then disclose the redacted version to the complainants:
a) the records described in paragraphs 18 and 21, of the findings above;
b) the records described in paragraphs 27 and 28 of the findings, above, and specifically the name, business establishment or work place associated with, job title and other personally identifiably information of: all confidential informants and witnesses, who are not otherwise known, and whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known;
c) all social security numbers;
d) the residential address of Fitzgerald and any other police officer.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 23, 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:
Maurice Timothy Reidy and
The Hartford Courant
40 South Street
New Britain, CT 06051
Chief, Police Department,
Town of Newington
c/o Peter J. Boorman, Esq.
365 Willard Avenue, Unit 2E
Newington, CT 06111
Brendan Fitzgerald
c/o George C. Springer, Jr., Esq.
Butler, Norris & Gold
254 Prospect Avenue
Hartford, CT 06106-2041
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-020/FD/paj/10/24/2002