FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on June 24, 2003, at which time the complainants 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.  By letter of complaint received and filed November 8, 2002, the complainants appealed to the Commission, alleging that they received no response to their requests for records from the respondent.

 

3.  It is found that the complainants requested by letters dated October 17 and October 29, 2002 all records retained by the respondent in connection with Case No. 99-53676, including all police reports, search warrants, and arrest warrants.

 

4.  It is found that in late October 2002 the respondent provided copies of the following records relating to Case No. 99-53676 to the complainants:  an incident report dated 01/05/00 concerning the execution of a search and seizure warrant; a follow-up incident report dated 01/10/00 concerning a seized firearm; an evidence return receipt dated 07/26/00 for the seized firearm; a report of the examination of the seized firearm; and a follow-up incident report concerning disposal of seized evidence.

 

5.  It is found that in May 2003, the respondent sent copies of the records described in paragraph 4 to the complainant Shuckra, and additionally a copy of a contraband firearms log, listing the seized firearm, that had not been transmitted in October.

 

6.  It is found that the records provided to the complainants in October and May did not include copies of the following records: the search and seizure warrant application; an affidavit requesting dispensation with the requirement of delivery of the warrant; the warrant itself; the inventory of seized property including the seized firearm and other property; the evidence report for the seized firearm; and the request for examination of the seized firearm.

 

7.  It is found that the records described in paragraph 6, above, were subsequently obtained by the respondent from the State’s Attorney’s office in connection with discovery requested by the complainants in litigation by the complainants against the City of New Britain and the State’s Attorney, and that the records were transmitted by the respondent to the complainants in connection with that discovery request.

 

8.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

Except 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. 

 

10.  It is found that the records described in paragraph 6, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

11.  It is found that all of the records described in paragraph 6, above, were executed by the respondent, and that it is the practice of the respondent to maintain copies of those records in the same file with other records pertaining to the case.

 

12.  It is also found that the respondent conducted a diligent search for the records described in paragraph 6, above, but could not locate them in his own files.

 

13.  Notwithstanding the finding in paragraph 12, above, the complainants maintain that the respondent should have provided the records described in paragraph 6, above, in response to their FOI Act request, since the respondent was able to obtain and provide the records in response to the later discovery request.

 

14.  It is concluded, however, that the respondent did not violate the FOI Act by failing to provide copies of records which he failed to maintain.

 

15.  The Commission takes administrative notice of its records and files to observe that the respondent has not, in previous cases before the Commission, been found to fail to properly maintain records pertaining to search and seizure warrants, or any other law enforcement records.

 

16.  The Commission also observes, however, that the respondent appeared to take his responsibility to comply with discovery in civil litigation somewhat more seriously than his obligation to provide records requested under the FOI Act.  Specifically, the respondent neglected to inform the complainants that his case file should have contained records relating to the search and seizure warrant (which were specifically requested) but did not; and neglected either to refer the complainants to the court or prosecutor that maintained such records, or to obtain such records for the complainants from the court or prosecutor, as it did in response to the discovery request. 

 

17.  The Commission therefore encourages the respondent to maintain his good record before the Commission, and, in the spirit of the FOI Act, to endeavor to communicate more effectively with requesters concerning which records he ordinarily maintains, which records he is unable to locate, and which records might be obtained from alternative sources.

 

18.  In light of the conclusion in paragraph 14, above, that the respondent did not violate the FOI Act, the Commission need not address the request of the complainants, made in their brief filed at the hearing but not in their complaint, that a civil penalty be assessed against the respondent.

 

 

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

 

            1.  The complaint is dismissed.

 

 

 

 

 

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

August 13, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Lionel DeLeon and Christopher Shuckra

c/o Christopher Shuckra

PO Box 2242

New Britain, CT  06050

 

Chief, Police Department,

City of New Britain

c/o Irena J. Urbaniak, Esq.

City Attorney

Corporation Counsel’s Office

27 West Main Street

New Britain, CT  06051

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-534FD/abg/08/14/2003