FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

            The above-captioned matter was heard as a contested case on April 3, 2006, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  Dr. William Mara, the subject of the records described in paragraph 9 of the findings below, and Suzan Mara were granted intervenor status.  The respondent submitted the requested records, as described in paragraph 9 of the findings, below, for an in camera inspection, and those records have been identified as exhibits 2006-049-1 through 2006-049-48.

 

            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 filed February 7, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying her request for a copy of a public record concerning the investigation of a complaint against the intervenor William Mara.

 

3.   It is found that, by letter dated January 31, 2006, the complainant reiterated her October 5, 2005 request for all documents and records in the files of the Greenwich Police Department pertaining to a complaint that Ms. Otto made against William Mara. 

 

4.  It is found that, by letter dated February 2, 2006, the respondent denied the complainant’s request, asserting that the requested records consisted of uncorroborated allegations of criminal activity, and also that some of the requested records included signed witness statements taken during the investigation of a crime.  The respondent agreed not to destroy the requested records pursuant to §1-216, G.S., during the pendency of this complaint.

 

5.   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.

 

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

 

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.

 

            7.  It is found that the respondent conducted an investigation of allegations made by the complainant, and that the records of that investigation are responsive to the complainant’s January 31, 2006 request.

 

            8.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

           

9.  The respondent contends that all of the requested records, comprising the 48 pages of the entire Greenwich Police Department incident report on Case No. 04-103031, are exempt from disclosure pursuant to §§§1-210(b)(3)(B), 1-210(b)(3)(G), and 1-216, G.S.

 

10.  Sections 1-210(b)(3)(B) and (G) provide that disclosure is not required 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 … (B) signed statements of witnesses … or  (G) uncorroborated allegations subject to destruction pursuant to section 1-216 ….

 

11.  In turn, §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. 

 

12.  It is found that the requested records are records of law enforcement agencies not otherwise available to the public, which records were compiled in connection with the detection or investigation of crime, all within the meaning of §1-210(b)(3)(G), G.S.

 

13.  It is found that the respondent, after an investigation of criminal allegations made against Dr. Mara, determined on or before January 22, 2005 that the allegations were unsubstantiated and uncorroborated.

 

14.  It is also found that pages 2006-049-30 through 41 are the signed statement of  Dr. Mara.

 

15.  The complainant contends that §1-210(b)(3)(B), G.S., only applies to the signed statement of a third party who is “equally available to both sides,” citing State v. Malave, 250 Conn. 722, 733 (1999).  The complainant contends that Dr. Mara, as a potential criminal defendant, could have constitutionally made himself unavailable to the prosecution, and that he is therefore not a “witness” within the meaning of §1-210(b)(3)(B), G.S. 

 

16.  Section 1-1(a), G. S., provides:

 

In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.

 

17.  The American Heritage Dictionary (Second College Edition 1985) defines “witness” to mean:

 

1.a. One who has seen or heard something.  b. One who furnishes evidence.  c. Anything that serves as evidence; sign. 3. law. a. One who is called upon to testify before a court. b. One who is called upon to be present at a transaction in order to attest to what takes place. c. One who signs his name to a document for the purpose of attesting to its authenticity. 4. An attestation to a fact, statement, or event.

 

18.  It is concluded that Dr. Mara, who furnished evidence in the respondent’s investigation, based on what he had seen and heard, is a “witness” within the meaning of §1-216(b)(3)(B), G.S.

 

19.  With respect to the asserted exemption for records of uncorroborated allegations of criminal activity, the complainant contends that §1-210(b)(3)(G), G.S., must be read narrowly to exempt only the uncorroborated allegations contained within the requested records, not the entire record of the investigation of the uncorroborated allegations.

 

20.  In Bona v. FOIC, 44 Conn. App. 622 (1996), the Appellate Court concluded that three separate documents—an incident report summary sheet, an incident report narrative, and an analysis for submission to the state police—together constituted one record for the purposes of §§1-210(b)(3)(G) and 1-216, G.S., and that the entire record was exempt from disclosure.

 

21.  The Commission also has consistently concluded that the entirety of the record of an investigation of uncorroborated allegations of criminal activity is exempt from disclosure pursuant to §1-210(b)(3)(G), G.S.  See, e.g., docket #FIC 1999-296, Harford Courant et al. v. Chief, Police Department, City of Torrington et al. (all 317 pages of investigation report exempt under §1-210(b)(3)(B) and (G), G.S.); docket #1999-493, Peruta v. Chief, Police Department, Town of Wethersfield et al. (all three pages of investigation exempt under §1-210(b)(3)(G), G.S.); docket #FIC 200-291, Damato v. Records Supervisor, Police Department, Town of Glastonbury (all four pages of investigation report exempt under §1-210(b)(3)(G), G.S.); docket #FIC 2003-218, Chalecki v. Department of Public Safety (entirety of investigation report exempt under §1-210(b)(3)(G), G.S.); docket #FIC 2003-462, Kosinski v. Department of Public Safety (all 25 pages of investigation report exempt under §1-210(b)(3)(G), G.S.); Docket #FIC 2005-031, Bosco v. Chief, Police Department, Town of Wethersfield (all 22 pages of investigation report comprised of incident report; supplemental reports; statements of the complainant, the suspect and another individual; case closure report exempt under §1-210(b)(3)(G), G.S., although ten pages of non-investigatory records (records request; denial of records request, communications from Office of Victim Advocate; letter from FOI Commission; complaint to FOI Commission; notice of FOI Commission’s hearing) not exempt).

 

22.  Although the complainant contends that the requested records should be disclosed with only the actual uncorroborated allegations redacted, the Commission notes that its construction of the scope of §1-210(b)(3)(G), G.S., is consistent with the law enforcement agency’s duty to destroy records consisting of uncorroborated allegations that an individual has engaged in criminal activity under §1-216, G.S.  As a practical matter, it would be difficult for an agency to destroy only the redacted portions of a public record.

 

23.  Additionally, the Commission notes that its construction of the scope of §1-210(b)(3)(G), G.S., is consistent with the legislative history of §§1-210(b)(3)(G) and 1-216, G.S., which evidence a legislative intent to provide privacy protection for individuals who may be the subject of uncorroborated allegations.  See Bona v. FOIC, above, at 630-631.  It is not obvious that this privacy protection would be accomplished by partial disclosure of records of uncorroborated allegations, particularly since such partial disclosure could lead indirectly to disclosure of the underlying uncorroborated allegations.

 

24.  The intervenor contends that the provisions of §1-210(b)(3)(G), G.S., may be waived by the individual whose privacy the statute is intended to protect, and urges the Commission to find an implied waiver of the statute by Dr. Mara, who also wishes to have access to the requested records.

 

25.  It is found, however, that Dr. Mara did not, as he could have, assert an express waiver of §1-210(b)(3)(G), G.S.; and indeed only seeks to have the records released directly to the Superior Court (where he has an action pending against the complainant) and sealed from the public.

 

26.  Under the facts and circumstances of this case, the Commission declines to find an implied waiver of §1-210(b)(3)(G), G.S., by Dr. Mara.

 

27.  Finally, the intervenor contends that failure to disclose the requested records to him will limit his right as a litigant against the complainant in Superior Court, within the meaning of §1-213(b), G.S.  Specifically, the intervenor contends that his rights to obtain statements under Conn. Practice Book §13-3, to take depositions under §13-26, and to subpoena persons to testify at a deposition under §12-28, will all be limited if the respondent prevails in this contested case.

 

28.  Section 1-213(b), G.S., provides in relevant part that “Nothing in the Freedom of Information Act shall be deemed in any manner to … limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state.”

 

29.  In Chief of Police v. FOIC, 252 Conn. 377, 396 (2000), however, the Supreme Court concluded that “the provisions of the [FOI] act do not affect or limit discovery rights, and discovery rights do not affect or limit the provisions of the act. The two operate separately and independently.” 

 

30.  It is therefore concluded that a conclusion by the Commission that the requested records are exempt from disclosure does not affect the intervenor’s rights to seek the same record under the laws of discovery in his litigation against the complainant.

 

31.  However, the Commission notes that, under the facts and circumstances of this case, a conclusion that the requested records are exempt from disclosure under §1-210(b)(3)(G), G.S., might lead the respondent to believe that the records may be destroyed under §1-216, G.S.  Such a result would appear to limit the rights of the intervenor under the laws of discovery.

 

32.  It is therefore concluded that, consistent with §1-213(b)(1), G.S., nothing in this decision shall be construed to permit the destruction of the requested records during the pendency of the litigation between the intervenor and the complainant.

 

33.  It is concluded that the requested records are exempt from disclosure pursuant to §§1-210(b)(3)(B) and (G), G.S., and that the respondent did not violate the FOI Act by failing to disclose the records.

 

34.  Having concluded that the requested records are exempt from disclosure, there is no need to address the respondent’s additional arguments that certain portions of the records consisting of criminal history information are also exempt from disclosure pursuant to §§29-11 through 29-16, G.S. (pertaining to the State Police Bureau of Identification); and §§54-142a, 54-142c, and 54-142 g through q, G.S. (pertaining to erased records and criminal history record information).

 

 

             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 January 10, 2007.

 

________________________________

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:

 

Karen Otto

c/o James Fulton, Esq.

PO Box 2250

100 Field Point Road

Greenwich, CT 06830

 

Chief, Police Department,

Town of Greenwich

c/o Fernando F. de Arango, Esq.

Town Hall

PO Box 2540

101 Field Point Road

Greenwich, CT 06836-2540

 

William Mara and Suzan Mara

c/o Donald B. Powers, Jr., Esq.

Mead, Bromley & Bishop

Mead Building

41 Bank Street

Stamford, CT 06901-3066

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-049FD/paj/1/12/2007