FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on January 16, 2003, 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 §1-200(1), G.S.

 

2.  It is found that the complainant is an employee of the Meriden Police Department, who works as a municipal dispatcher in the 911 unit, and is president of the local union.  

 

3.  It is found that, on August 9, 2002, the respondent sent a memorandum to the complainant, stating that Captain Giesing had informed him that the captain was now qualified to dispatch both police and fire personnel, and had placed his name on the overtime list.

 

4.  It is found that, by memorandum dated August 9, 2002, the complainant responded to the memorandum described in paragraph 3, above, expressed her concerns about the qualifications of Captain Giesing, and informed the respondent that the captain could not be placed on the overtime rotation list.

 

5.  It is found that, on August 9, 2002, the complainant also placed a telephone call to the respondent while she was on duty as a dispatcher, and that the purpose of such call was to reiterate the concerns expressed in the complainant’s memorandum of August 9, 2002.

 

6.  It is found that all telephone calls to or from the dispatch unit, with the exception of those calls placed to or from Captain Geising’s office, are tape-recorded. 

 

7.  It is found that, by letter dated August 13, 2002, the complainant requested that the respondent provide her with a copy of the tape-recorded conversation described in paragraph 5, above [hereinafter “the requested record”].

 

8.  It is found that, having failed to receive a copy of the requested record, by letter dated September 18, 2002, the complainant renewed the request described in paragraph 7, above.

 

9.  It is found that, by letter dated September 25, 2002, the respondent denied the requests described in paragraphs 7 and 8, above, contending that the complainant may have violated §53a-189, G.S., by recording the conversation described in paragraph 5, above, and also that the recording might have “civil implications.”

 

10.  By letter dated October 15, 2002, and filed on October 17, 2002, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [FOI] Act by denying her a copy of the requested record. 

 

11.  It is found that the respondent maintains the requested record and that such record is a public record within the meaning of §1-200(5), G.S.

 

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

 

“[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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212….” 

 

13.  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….”

 

14.  The respondent contends that the requested record is exempt from mandatory disclosure by virtue of §1-210(b)(12), G.S.

 

15.  Section 1-210(b)(12), G.S., exempts from mandatory disclosure “[a]ny information obtained by the use of illegal means.”

 

16.  At the hearing in this matter, the respondent contended that the complainant illegally taped her conversation with the respondent, citing §52-570(d), G.S., and that therefore the requested record was obtained by illegal means, and is accordingly exempt from mandatory disclosure. 

 

17.  Section 52-570(d), G.S., provides that:

 

“(a) [n]o person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.”

“(b) The provisions of subsection (a) of this section shall not apply to: (1) Any federal, state or local criminal law enforcement official who in the lawful performance of his duties records telephonic communications; (2) Any officer, employee or agent of a public or private safety agency, as defined in section 28-25, who in the lawful performance of his duties records telephonic communications of an emergency nature….”

18.  It is found that the complainant did not verbally notify the respondent that the telephone call in question was being recorded on August 9, 2002.  It is also found that the municipal dispatchers in the respondent’s department routinely place telephone calls from their stations, which are recorded, and that the dispatchers do not inform those called that such conversations are being recorded.  It is also found that the respondent, as chief of the Meriden Police Department was aware that outgoing calls are recorded, and had provided no training to the municipal dispatchers regarding verbal notification to parties called of the recording of such calls.

 

19.  At the hearing in this matter, the respondent contended that he did not know from which telephone the complainant made the call on August 9, 2002, and thus was not notified that such telephone call was being recorded. 

 

20.  The respondent provided no proof at the hearing in this matter that criminal charges had been brought or contemplated against the complainant with respect to the telephone call described in paragraph 5, above.  Accordingly, the Commission cannot find that such call was placed illegally.  Moreover, it is found that the respondent did not obtain the requested record by illegal means, within the meaning of §1-210(b)(12), G.S., since the requested record is kept on file and maintained by the police department, and not by the complainant individually. 

 

21.  Therefore, it is concluded that the requested record is not exempt from mandatory disclosure by virtue of §1-210(b)(12), G.S.

 

22.  The respondent also contends that the requested record is exempt from mandatory disclosure by virtue of §§1-210(b)(4) and 1-210(b)(9), G.S.

 

23.  Section 1-210(b)(4), G.S., provides that nothing in the FOI Act shall be construed to require disclosure of “records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled.”

 

            24.  "Pending claim" is defined at §1-200(8), G.S, as “[a] written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”

 

            25.  Section 1-210(b)(9), G.S., exempts from mandatory disclosure: “records, reports and statements of strategy or negotiations with respect to collective bargaining.”

 

            26.  It is found that, on August 15, 2002, all public safety dispatchers filed a grievance, which alleged that Captain Giesing violated the union contract, since he was not qualified to earn overtime pay as a dispatcher.  Such grievance asked that Captain Giesing cease and desist from placing his name on the overtime list, and that all dispatchers be compensated in triple time for each overtime shift taken by Captain Giesing.  The respondent contends that the requested record pertains to strategy and negotiations with respect to such grievance as a pending claim, and that it is a record, report and statement of strategy or negotiations with respect to collective bargaining. 

 

            27.  However, it is found that the respondent failed to prove that the requested record pertains to strategy and negotiations with respect to the grievance described in paragraph 26, above, or that the requested record is a record, report and statement of strategy or negotiations with respect to collective bargaining.  It is found that the requested record was created in the ordinary course of business by the 911 unit tape- recording system and nothing in the Commission’s administrative record of this matter suggests that strategy or negotiations with respect to the August 15, 2002 grievance, or collective bargaining, was discussed during the August 9, 2002 conversation at issue. 

 

28.  Therefore, it is concluded that the requested record is not exempt from mandatory disclosure by virtue of §§1-210(b)(4) or 1-210(b)(9), G.S.

 

            29.  It is also concluded that the respondent violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to comply with the complainant’s request described in paragraph 8, 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 provide the complainant with a copy of the requested record, at no cost. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

April 23, 2003.

 

 

_______________________________________

Dolores E. Tarnowski

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:

 

Zuli Rosario

c/o Marco D’Occhio, Esq.

Eagan & Donohue

24 Arapahoe Road

West Hartford, CT  06107

 

Chief, Police Department,

City of Meriden

c/o John Gorman, Esq.

Meriden Corporation Counsel

142 East Main Street

Meriden, CT  06450-8022

 

 

 

_______________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

 

FIC/2002-500FD/abg/04/25/2003