FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 5, 2008, 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.  It is found that, in July 2007, Joshua Komisarjevsky and Steven Hayes (hereinafter “the suspects”), were arrested in connection with three murders committed in the town of Cheshire.  It is further found that such murders were notorious in Connecticut, generating a great deal of news coverage.  It is also found that, because of the heinous nature of the multiple crimes, a person convicted of such crimes would be subject to the possibility of the death penalty. 

 

3.  It is found that, at the time of the murders, the suspects were under the supervision of the Department of Correction (hereinafter “DOC”), and were on parole.   

 

4.  It is found that, because of the notorious nature of the crimes and the fact that the suspects were under DOC supervision, the respondent gathered all DOC records regarding the incarceration of the suspects.  It is further found that such records were voluminous. 

 

5.  It is found that the respondent, along with other state officials including the Governor, the Chief State’s Attorney (hereinafter “CSA”), and Department of Public Safety (hereinafter “DPS”) investigators, were working together to ensure that the prosecution of the suspects would not be compromised in any way, and also to ensure that the suspects would receive a fair trial.  It is found that, toward those ends, the CSA and DPS directed the respondent to keep the records described in paragraph 4, above, locked in the office of the DOC Director of Security. 

 

6.  It is found that at the direction of the CSA and DPS, the records described in paragraph 4, above, were treated as potential evidence in the eventual prosecution of the suspects, and that DOC established a chain of custody for the records, and a sign-in procedure for any inspection of the records.  It is further found that the CSA wished to personally view the files to determine if any records would be used in the pending prosecution, including the trial and potential death penalty phase if convictions were obtained.[1]  It is further found that the gathering and securing of the records was accomplished by July 26, 2007. 

 

7.  It is found that, by email dated July 26, 2007, the complainants requested that the respondent provide them with access to, and possibly copies of, the records described in paragraph 4, above (hereinafter “the requested records”).  It is further found that the respondent received many other similar requests for inspection of the requested records from several other news sources. 

 

8.  It is found that, by letter dated July 31, 2007, the respondent acknowledged the request described in paragraph 7, above, and informed the complainants that the requested records were not available because the DPS was conducting a criminal investigation of the suspects, and because the respondent was conducting an ongoing investigation in conjunction with the DPS investigation. 

 

9.  It is found that the respondent began an immediate review of the requested records, and had completed such review by August 3, 2007.  It is found that, in the course of such review, the respondent determined that some portions of the records were exempt from mandatory disclosure, and made redactions accordingly.[2]   

 

10.  It is found that, by letter dated August 7, 2007, the complainants renewed the request described in paragraph 7, above.  It is also found that, by letter dated August 25, 2007, the complainants again renewed the request. 

 

                11.  It is found that, by letter dated August 30, 2007, the respondent informed the complainants that the requested records were being withheld because of a pending DPS investigation.

 

12.  By letter dated August 30, 2007, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide them with access to and/or copies of the requested records.  In their complaint, the complainants seek a civil penalty against the respondent. 

 

13.   Section 1-200(5), G.S., provides, in relevant part:

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

14.   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…or (3) receive a copy of such records in accordance with section 1-212.    

 

15.  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.”

 

16.  It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

17.  It is found that the CSA reviewed the requested records on Friday, August 31, 2007, and that the respondent made the requested records available to the complainants on the subsequent Tuesday, September 4, 2007, following a national holiday on Monday, September 3, 2007.  It is found that, although the respondent had promptly acknowledged the July 26, 2007, request described in paragraph 7, above, and promptly completed review of the requested records by August 3, 2007; she waited for the CSA to inspect the records before releasing them to the complainants.  

 

18.  The complainants contend that the respondent failed to provide the requested records promptly.

 

19.  The meaning of the word “promptly” is a particularly fact-based question that has been previously addressed by the FOI Commission.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982) the Commission advised that the word “promptly” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

20.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

            21.  The respondent cites to the Commission’s final decision in Docket #FIC 2006-683; Richard R. Quint v. Food Services Division, State of Connecticut,

Department of Correction; and Joan Ellis, State of Connecticut, Department of Correction, Freedom of Information Administrator (June 13, 2007), in which the Commission found that a delay of eight weeks to provide records was found to be prompt.  However, such finding turned on the fact that it reasonably took the respondent eight weeks to gather and compile voluminous records from various locations.  In this matter, the requested records were already compiled at the time of the request, and reviewed by the respondent within one week. 

 

22.   It is found that the delay of one month from the time of the respondent’s review of the requested records to the time of release to the complainants was solely due to awaiting review of the records by the CSA, as described in paragraph 17, above.  

 

23.  While the Commission recognizes that the respondent was attempting to cooperate with the CSA in handling the requested records in the context of the pending prosecution, it is found that the respondent, not the CSA, maintains such records.   Thus, it was for the respondent, and not the CSA, to provide prompt access to such records. 

 

24.  It is concluded that the respondent violated the promptness provisions of §§1-210(a), and 1-212(a), G.S., in this matter.

25.  With respect to the complainants’ request for the imposition of a civil penalty, §1-206(b)(2), G.S. provides, in relevant part:

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

            26.  It is found that the respondent is the official directly responsible for the violation.  However, it is also found that the respondent’s failure to comply with the FOI Act was not without reasonable grounds.  Therefore, the complainants’ request for a civil penalty in this matter is denied.  

 

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 requirements of §§1-210(a) and 1-212(a), G.S.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 28, 2008.

 

________________________________

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:

 

Matthew Kauffman and the

Hartford Courant

285 Broad Street

Hartford, CT 06115

           

Theresa Lantz, Commissioner,

State of Connecticut, Department

of Correction

c/o DeAnn S. Varunes, Esq.

Assistant Attorney General and

Steven R. Strom, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-472FD/paj/5/29/2008