FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 28, 2005, 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.      It is found that the respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      It is found that, by letter dated July 14, 2005, the complainants made a request to the respondent for access to inspect and copies of all information pertaining to the supervisor’s complaint and internal investigation of Officer Genaro Velez Jr., related to his arrest in the town of Milford during the month of February 2004.

 

3.      It is found that at the time of the complainants’ request, the investigation file maintained by the respondent pertaining to Officer Velez’s arrest consisted of a copy of: the Milford Police department’s arrest warrant and report of the February 2004 arrest; the supervisor’s complaint against Officer Velez written by the New London Police Department’s Captain Kenneth Edwards; and handwritten notes of the New London Police Department’s Deputy Chief William Gavitt, who began the internal investigation of Officer Velez’s February 2004 arrest.

 

 

4.      By letter dated July 22, 2005, the respondent, through counsel, informed the complainants that pursuant to §1-210(b)(1) and (4), G.S., the City was unable to comply with the complainants’ request because the investigation related to Officer Velez’s arrest was not complete, and because the grievance brought by Officer Velez grieving his suspension after his arrest in Milford was still pending.

 

5.      By letter dated and filed on July 25, 2005, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with their request.

 

6.       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 (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. 

 

7.      Section 1-212(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.” 

 

8.      It is found that the records maintained by the respondent and described in paragraph 3, above, are responsive to the complainants’ request and such records are public records within the meaning of §1-210(a), G.S.

 

9.      At the hearing on this matter, and in his brief, the respondent contended that the requested records are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S.   The respondent also contended that the requested records are exempt pursuant to §§1-210(b)(3)(B) and (G) and §1-210(b)(4), G.S.

 

10.   The respondent submitted the subject records for in-camera inspection, which records have been identified as in-camera records #s: FIC 2005-361-A1 through FIC 2005-361-A77; FIC 2005-361-B1 through FIC 2005-361-B74; FIC 2005-361-C1 through FIC 2005-361-C68; and FIC 2005-361-D1 through FIC 2005-361-D72.

 

11.   It is found, however, that the records the respondent submitted for in-camera inspection included more records than those that existed at the time of the complainants’ July 14, 2005 request as described in paragraph 3, above. The records submitted for in-camera inspection include newspaper articles, court orders, personnel action request forms, memoranda of understanding, fax cover sheets, interdepartmental memoranda, e-mails, subpoenas, letters, squad logs, copies from pages of calendars, private duty time sheets, overtime time sheets, judicial registries, returns of service, affidavits, orders and notices of hearing, incident reports, grievance forms, telephone records, and graphs.  Further, the records provided for in-camera inspection included multiple copies of the same records.

 

12.   Nonetheless the respondent contends that all of the in-camera records are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S.

 

13.   Section 1-210(b)(1), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of  “preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure . . . .”

 

14.   After careful review of the in-camera records, it is found that in-camera records FIC 2005-361-A1 through A9, A11 through A50, A52 through A54, A58 through A77, B1 through B7, B9 through B32, B34 through B74, C1 through C7, C9 through C68 and D1 through D71 include copies of newspaper articles, court orders, personnel action request forms, memorandums of understanding, fax cover sheets, interdepartmental memoranda – typed and handwritten, e-mails, subpoenas, letters, squad logs, pages of calendars, private duty time sheets, overtime time sheets, judicial registries, returns of service, signed affidavits, signed witness statements, orders and notices of hearing, incident reports, completed grievance forms, telephone records, graphs, incident reports, the Milford Police department’s arrest warrant and report of Officer Velez’s February 2004 arrest, and the supervisor’s complaint against Officer Velez.

 

15.   It is found that the arrest warrant and the arrest report were originally created and maintained by the Milford police department and forwarded to the respondent. It is found that such records are not “preliminary draft or notes” within the meaning of §1-210(b)(1), G.S.

 

16.   It is found that the supervisor’s complaint against Officer Velez was issued by Captain Edwards of the New London Police Department and was used by, and formed the basis, of Officer Velez’s suspension.  Consequently, it is found that the supervisor’s complaint against Officer Velez is the complete and final draft of that record and is not a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S.

 

17.   With respect to the newspaper articles, court orders, personnel action request forms, memoranda of understanding, fax cover sheets, interdepartmental memoranda – typed and handwritten, e-mails, subpoenas, letters, squad logs, pages of calendars, private duty time sheets, overtime time sheets, judicial registries, returns of service, signed affidavits, signed witness statements, orders and notices of hearing, incident reports, completed grievance forms, telephone records, and graphs, it is found that all such records are complete documents many of which were created by another entity such as the orders from the court, letters from Officer Velez’s attorney, the return of service from the Marshall and most notably, the newspaper articles.  Many of the other records are used in the day-to-day operations of the New London police department such as the time sheets, squad logs and graphs. 

 

18.   It is found however, that in-camera records FIC 2005-361-A10, the handwritten notes on the back of A30 and A32, the hand written notes on A44, A51, the handwritten notes on A52 and A54, A55 through A57, the hand written notes on A74 dated 11/9/04 and 4/18/05, B8, B33, C8 and D72, constitute “preliminary drafts and notes” within the meaning of §1-210(b)(1), G.S., and the respondent determined that the public interest in withholding such records clearly outweighed the public interest in disclosure of such records. 

 

19.   Consequently, it is concluded that the in-camera records or the portions thereof, as described in paragraph 18, above, are exempt from mandatory disclosure pursuant to §1-210(b)(1), G.S.

 

20.   The respondent also contends that all of the in-camera records are exempt from mandatory disclosure pursuant to §1-210(b)(4), G.S.

 

21.   Section 1-210(b)(4), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “[r]ecords 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 . . . .”

 

22.  It is found that the police union representing New London police officers filed two grievances in connection with Officer Velez’s suspension after his arrest in Milford.

 

23.   It is found that disclosure of the in-camera records, most of which were not created in connection with the union grievances, would not reveal the respondent’s strategy with respect to the grievances brought on behalf of Officer Velez.  

 

24.   It is also found that the respondent failed to prove that the respondent and the union are engaged in negotiations or that disclosure of the in-camera records would reveal such negotiations. 

 

25.   It is concluded therefore that the respondent failed to prove that the requested records are permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

26.   The respondent also contends that §1-210(b)(3), G.S., exempts the following in-camera records from mandatory disclosure: FIC 2005-361-A58, B43 through B61, C9 through C20, C32 through C38, C59 through C67, D5 through D13, D57 through D61, and D72.

 

27.   Section 1-210(b)(3), G.S., permits the non-disclosure of:

 

records of law enforcement agencies . . . 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 . . . (B) signed statements of witnesses . . .  or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.  [Emphasis added].

 

28.   It is found that the town of Milford’s report concerning Officer Velez’s arrest contains signed statements of witnesses which statements were compiled by the Milford Police Department in connection with the detection or investigation of crime. It is further found that the respondent determined that it would not be in the public interest to disclose such statements.

 

29.   Consequently, it is found that in-camera records FIC 2005-361-B61 through B66, C59 through C67, D5 through D13, and D60 through D61 are permissibly exempt from disclosure pursuant to §1-210(b)(3)(B), G.S., and it is concluded that the respondent did not violate the disclosure provisions of §1-210(a), G.S., by denying the complainants access to those records.

 

30.   With respect to in-camera records FIC 2005-361-A58, B43 through B60, C9 through C20, C32 through C38, D57 through D59, and D72, it is found that the respondent’s investigation of Officer Velez’s arrest concerns a non-criminal police internal affairs investigation and the administrative disposition of such investigation.

 

31.   It is therefore found that the in-camera records, as described in paragraph 30, above, were not compiled in connection with the detection or investigation of crime within the meaning of §1-210(b)(3), G.S.

 

32.   Accordingly, it is concluded that the exemption at §1-210(b)(3), G.S., is inapplicable to the in-camera records described in paragraph 30, above, and such records are not permissibly exempt from disclosure pursuant to that provision.

 

33.   The respondent also contends that in-camera records FIC 2005-361-A13, A14, A32, A33, A39, and A40 through A42 are exempt from mandatory disclosure pursuant to §1-210(b)(10), G.S.

 

34.   Section 1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require disclosure of  “communications privileged by the attorney-client relationship . . . .”

 

35.   Established Connecticut law defining the attorney-client privilege governs the applicability of the exemption contained in §1-210(b)(10), G.S.   Such law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.

 

36.   Section 52-146r(2), G.S., defines “confidential communications” as:

 

“all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .”

 

37.   The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.”  Maxwell, supra at 149.

 

38.   It is found that the respondent has failed to prove that the records described in paragraph 33, above, are attorney-client communication within the meaning of §1-210(b)(10), G.S.

 

39.   It is also found that after careful review of the in-camera records described in paragraph 33, above, such records, on their face, do not constitute privileged attorney- client communications within the meaning of §1-210(b)(10), G.S.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

40.   Consequently, it is concluded that the records described in paragraph 33, above, are not exempt from mandatory disclosure pursuant to §1-210(b)(10), G.S.

 

41.   It is further concluded that the respondent violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to provide the complainants with access to and copies of all the in-camera records except for those described in paragraphs 18 and 29, above. 

 

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 access to and copies of all the in-camera records described in paragraph 10 of the findings, above, except for those described in paragraphs 18 and 29 of the findings, above.

 

2.      Henceforth the respondent shall strictly comply with the provision of §§1-210(a) and 1-212(a), G.S.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 12, 2006.

 

________________________________

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:

 

Ethan Rouen and the New London Day

47 Eugene O’Neill Drive

New London, CT 06320-1231

 

Chief, Police Department,

City of New London 

c/o Brian K. Estep, Esq.

Conway & Londregan

PO Box 1351

38 Huntington Street

New London, CT 06320-1351

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-361FD/paj/7/12/2006