FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Anthony Sinchak, | |||
| Complainant | |||
| against | Docket #FIC 2006-512 | ||
|
Chief, Police Department, City of Waterbury, |
|||
| Respondent | September 26, 2007 | ||
The above-captioned matter was heard as a contested case on January 30, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction. See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).
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.
a) any and all non-exempt public records or files, including any recorded data or information concerning, or the subject of which is Anthony Joseph Sinchak, also known as T-Bone Sinchak or Tony Sinchak, retained by the respondent; and
b) any and all non-exempt public records or files, including any recorded data or information concerning, or the subject of which is the Helter-Skelter Motorcycle Club also known as HSMC, retained by the respondent.
4. In Docket #FIC2003-061, the Commission reviewed records in camera and concluded that, while certain requested records were exempt from disclosure, records set forth in paragraph 24 of the findings in such matter were not exempt from mandatory disclosure.
5. Paragraph 24 of the findings in Docket#FIC2003-061 stated the following;
It is found that the respondent failed to prove that disclosure of the following records would divulge 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, or signed statements of witnesses or investigatory techniques not otherwise known to the general public, within the meaning of §1-210(b)(3)(A), (B), and (D), G.S.:
IC #2003-061-1, 5 (disclose all except lines 1, 2 and 18), 6 (disclose all except lines 1, 11, 14, and 17), 7 (disclose all except lines 1, 25 and 26), 8 (disclose all except line 1) 9 (disclose all except lines 1 and 18), 10, 25 (disclose all except lines 1, 10), 26 (disclose all except line 21), 27 (disclose all except line 1), 28 (disclose all except line 1), 29 (disclose all except line 1), 30 (disclose all except line 1), 31 (disclose all except line 1), 32 (disclose all except line 1), 33 (disclose all except line 1), 34, 35, 36 (disclose all except lines 1, 9 and 16), 37, 38 (disclose all except lines 1, 7 and 9), 39 (disclose all except line 1), 40, 41 (disclose all except line 1), 42 (disclose all except lines 1, 4, 7, 10, 11, 13, 19 and 23), 48 (disclose all except line 1), 49 (disclose all except line 1), 50 (disclose all except line 1), 51 (disclose all except lines 1, 12, 13 and 14), 52 (disclose all except lines 12, 13, 14, 15, 19 and 23), 53 (disclose all except lines 7, 8, 9 and 15), 54 ( disclose all except lines 1, and 7 through 20), 55 (disclose all except line 1), 60 (disclose all except lines 4, 11, 12 and 15), 61 (disclose all except name, address and telephone number of “complainant/ owner” and description of property), 62 (disclose all except line 1), 63 through 65, 68 through 73, 74 (disclose all except line 1), 75 (disclose all except line 1), 76 through 78, 79 (disclose all except line 1) , 80 (disclose all except lines 1 and 4), 81 (disclose all except lines 1, 11, 12, 13, 15 and 16), 82 through 86, 99, 101, 102 (disclose all except paragraph 6), 103 through 106, 128 through 231, 232 (disclose all except line 1), 233 (disclose all except lines 1, 6, 10, 11, 12, 13 and 15), 234 (lines 1, 4, 6, 14 and 15), 235 through 242, 243 (disclose all except paragraph 2), 244, 245 through 250, 252 (disclose all except paragraph 2), 253 through 265, 266 (disclose all except paragraph 2), 267 through 272, 273 (disclose all except paragraphs 2 and 3), 274 through 281, 282 (disclose all except paragraphs 2 and 3), 283 through 285, 286 (disclose all except lines 13 through 16), 287 through 290, 291 (disclose all except paragraph 2), 292 (disclose all except paragraphs 11 and 12), 293, 294 (disclose all except line 2), 295 through 297, 298 (disclose all except paragraphs 2 and 3), 299 through 300, 301 (disclose all except paragraph 11), 302 through 305.
6. In Docket #FIC2003-061, the Commission then ordered:
1. The respondent shall forthwith provide the complainant with a copy of the records described in paragraph 24, of the findings, above.
2. The respondent shall forthwith conduct a diligent search of the records to determine whether or not there are other records within the context of this decision which should be provided, and to provide copies of such records, and to provide to the complainant a list of any records which it claims are exempt, and to provide the basis of such claimed exemption on such records.
7. The Commission takes administrative notice of the record and final decision in Docket # FIC2005-293; Anthony Sinchak v. Chief, Police Department, City of Waterbury (June 14, 2006) (hereinafter “Docket #FIC 2005-293”).
8. In Docket #FIC2005-293, the complainant alleged that the respondent failed to comply with the Commission’s orders in Docket #FIC2003-061.
9. After a lengthy evidentiary hearing in Docket #FIC2005-293, the Commission concluded that, although hundreds of pages of records had been provided to the complainant as a result of the order in Docket #FIC2003-061, the respondent had not fully complied with order number 1 in Docket #FIC2003-061. The Commission also concluded that the respondent had not complied with order number 2 since the respondent did not search through paper records, but rather only searched through computerized records.
10. As remedy, in Docket #FIC2005-293, the Commission issued the following
orders:
1. The respondent shall forthwith, comply with the Commission’s order number 1 in FIC2003-061.
2. The respondent shall forthwith, provide the complainant with a copy of all records responsive to his request, which have resulted from the respondent’s diligent search of his records, including, “(1) defendant's exhibits 22A through 22I for identification (search and arrest warrants); (2) court exhibit XII (witness statements and police reports); and (3) court exhibit XIV (supplemental reports)”, as described in State of Connecticut v. Sinchak, 18 Conn. L. Rptr. 65 (1996), and referenced in paragraph 14 of the findings, above. However, in keeping with such court’s decision, and the principle of comity, the respondent may withhold any records that constitute “exhibit 51”, as described in State of Connecticut v. Sinchak, 18 Conn. L. Rptr. 65 (1996), which was not unsealed by such court.
11. It is found that, by letter dated July 18, 2006, the complainant asked the respondent when compliance with the orders in Docket #FIC2005-293 could be expected, and was especially interested in any records related to a 1948 Harley Davidson motorcycle which the complainant owned and which the complainant believes was stolen or seized in 1992 (hereinafter “the motorcycle”).
12. It is found that, in response to the orders in Docket #FIC2005-293, the respondent conducted a search of all paper records for the time periods 1983 to 1989, for records related to the complainant and the Helter Skelter Motorcycle Club. It is also found that the search of the paper records yielded further responsive records, which were provided to the complainant under cover letter dated July 21, 2006.
13. It is also found that, by the July 21 letter described in paragraph 12, above, the respondent listed all records which the respondent had previously provided to the complainant, including, with respect to order number 2 in Docket #FIC2005-293, the search and arrest warrants, witness statements, police reports, and supplemental reports which appear to comprise the exhibits described in such order. It is further found that the respondent informed the complainant that he had again compiled such search and arrest warrants, witness statements, police and supplemental reports. It is also found that, by such letter, the respondent informed the complainant that if he had not indeed received such records, to so inform the respondent and the respondent would again provide him with copies. It is further found that the respondent informed the complainant that, with respect to order number 2 in Docket #FIC2005-293, he did not have possession of the original marked exhibits from the complainant’s 1992 trial, but that such records were likely in the possession of the court or the state’s attorney. The respondent informed the complainant that he was making further inquiries to locate such records.
14. It is found that, by letter dated September 11, 2006, the respondent informed the complainant that the Court was in possession of the original marked exhibits at issue and that the Court would not release the exhibits to the respondent.
15. It is found that, by letter dated September 20, 2006, to the respondent the complainant again requested: the marked court exhibits; photographs of crime scenes at James Street in Torrington, and Birch Drive in Cheshire; the case records of Jose Barrera murder case and a Bernie Jacek kidnapping case; records related to the motorcycle; and records of police dives in the Nauagatuck River in connection with the Gianni murder investigation.
16. By letter dated September 20, 2006, and filed with the Commission on September 29, 2006, the complainant appealed to this Commission, alleging that the respondent failed to comply with the Commission’s orders in Docket #FIC 2005-293 by failing to provide copies of requested records, including the marked exhibits described in paragraphs 13, 14, and 15, above. The complainant requested the imposition of a civil penalty against the respondent.
17. 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.
18. 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.
19. 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.”
20. It is concluded that, to the extent that the requested records are kept on file or maintained by the respondent, such records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
21. At the hearing in this matter, the hearing officer asked the complainant which records were still at issue. In response, the complainant acknowledged that he received many records in response to the orders in Docket #FIC2005-293, above, but contended that certain records had still not been provided to him by the respondent. Specifically, the complainant contended that the following categories of records were still at issue:
a) records related to the motorcycle;
b) photographs of crime scenes in Cheshire and Torrington;
c) records related to police dives in the Naugatuck River;
d) records relating to a kidnapping of a Bernie Jacek; and
e) records related to a separate murder case related to a Jose Barrera.
22. With respect to the records described in paragraph 21a, above, it is found that the respondent has conducted an exhaustive search for such records including computer and paper records of the respondent, encompassing the property room records, the detective squad records, and the major case files. It is found that all searches were double-checked by a Waterbury Police Department clerk. It is also found that the respondent contacted towing companies in Waterbury to seek any information about the motorcycle but that such companies had no record of the motorcycle.
23. It is found that the respondent does not keep on file or maintain the records described in paragraph 21a, above. It is concluded therefore, that the respondent did not violate the FOI Act by failing to provide such records to the complainant.
24. With respect to the records described in paragraph 21b, above, it is found that, at the time of the hearing in this matter, the respondent had located the negatives of the photographs, and had made arrangements for them to be developed and for photographs to be provided to the complainant within a week of the hearing in this matter.
25. It is concluded that the respondent violated the promptness provisions of §§1-210(a) and 1-210(b), G.S., with respect to the records described in paragraph 21b, above.
26. With respect to the records described in paragraph 21c, above, it is found that the respondent has conducted an exhaustive search for such records including computer and paper records of the respondent, encompassing the detective squad records, and the major case files. It is found that all searches were double-checked by a Waterbury Police Department clerk.
27. It is found that the respondent does not keep on file or maintain the records described in paragraph 21c, above. It is concluded therefore, that the respondent did not violate the FOI Act by failing to provide such records to the complainant.
28. With respect to the records described in paragraph 21d, above, it is found that the respondent has conducted an exhaustive search for such records including computer and paper records of the respondent, encompassing the detective squad records, and the major case files. It is found that such searches were double-checked by a Waterbury Police Department clerk. It is further found that the respondent contacted the Naugatuck Valley Crime Squad for responsive records but was informed that such squad also has no responsive records.
29. It is found that the respondent does not keep on file or maintain the records described in paragraph 21d, above. It is concluded therefore, that the respondent did not violate the FOI Act by failing to provide such records to the complainant.
30. With respect to the records described in paragraph 21e, above, it is found that the respondent has conducted an exhaustive search for such records including computer and paper records of the respondent, encompassing the detective squad records, and the major case files. It is found that such searches were double-checked by a Waterbury Police Department Clerk. It is further found that the respondent contacted the Naugatuck Valley Crime Squad for responsive records but was informed that such squad also has no responsive records.
31. At the hearing in this matter, the complainant asked that the respondent check for records under the names of O’Connor and Christiano, who the complainant believes were arrested in connection with the Barrera case. The respondent pledged to search for such names in connection with Barrera.
32. Based upon the record, however, it is found that the respondent conducted a diligent search based on the one name provided by the complainant, and did not violate the FOI Act by failing to additionally search for the names O’Connor and Christiano, which names were not provided until the hearing in this matter. It is found that the respondent does not keep on file or maintain the records described in paragraph 21e, above. It is concluded therefore, that the respondent did not violate the FOI Act by failing to provide such records to the complainant.
33. It is found that the respondent does not maintain copies of the marked exhibits described in paragraph 16, above, and that such records are maintained by the court. At the hearing in this matter, the respondent pledged to again try to gain copies of the exhibits described in paragraph 16, above, from the court.
34. It is concluded that the respondent did not violate the FOI Act by failing to provide copies of the marked exhibits to the complainant.
35. The Commission takes administrative notice of a February 15, 2007, letter from the respondent to the complainant, which was provided to the Commission after the hearing in this matter. By such letter, the respondent provided the complainant with copies of the photographs described in paragraph 21b, above, as well as correspondence whereby the respondent attempted to retrieve the marked exhibits described in paragraph 16, above, from the court and whereby the court refused, contending that the case record was sealed. By such letter, the respondent also informed the complainant: that the respondent had searched all of the complainant’s arrest records for records mentioning Bernie Jacek and found nothing; and that the respondent had searched its records for any reference to the names O’Connor and Christiano in connection with Barrera and found nothing.
36. The Commission declines to consider the imposition of a civil penalty in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall comply with the promptness provisions of §§1-210(a) and 1-210(b), G.S.
2. Henceforth, the respondent shall provide the complainant with the records described in paragraph 21, above.
3. If the respondent does not maintain the records described in paragraph 21, above, he shall forthwith provide the complainant with an affidavit attesting to the search for such records and a statement that such records are not maintained by the respondent. The affidavit shall also address all issues raised by the complainant at the Commission meeting of September 26, 2007.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 26, 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:
Anthony Sinchak, #64249
Cheshire Correctional Institution
900 Highland Avenue
Cheshire, CT 06410
Chief, Police Department,
City of Waterbury
c/o Charles E. Oman III, Esq.
Office of Corporation Counsel
City of Waterbury
236 Grand Street
Waterbury, CT 06702
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2006-512FD/paj/9/27/2007