FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as contested case on April 22, 2008, at which time the complainant and the respondents appeared 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 respondents are a public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  It is found that by application dated September 7, 2007, the complainant made a request to the respondents for copies of all the officers’ incident reports relating to “complaint #144510”, followed by a list of thirteen officers (the “requested records” or sometimes the “records”).

 

3.  By letter dated September 22, 2007 and filed with the Commission on September 26, 2007, the complainant appealed to the Commission, alleging that the respondents failed to provide the requested records, and thereby violated the Freedom of Information Act (“FOIA”). The complainant also requested: a) a waiver of production fees; and b) that a civil penalty be imposed on the respondents.  

 

 

4.  Section 1-200(5), G.S., states:

 

“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.

 

5.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

6.  It is found that, in anticipation of the hearing in this matter, the respondents by hand-delivery on February 7, 2008, delivered to the complainant their entire file in case #144510, without claiming any exemptions and without any charge to the complainant for copies. The records date mostly from 1989 and 1990, and are therefore approximately eighteen years old. There was testimony that all of the officers referenced by the complainant have retired.  

 

7.  It is found, based upon the testimony of Dominic Tamoro, the Investigator for the Corporation Counsel’s Office, City of New Haven, that the respondents performed a generally diligent search. Mr. Tamoro checked for records with the heads of the two divisions in charge of all agency records, Lieutenant Roger Young, Commander of the Records Division, and Lieutenant Lisa Dadio, Commander of the Investigative Services Unit (Detective Bureau). Mr. Tamoro also did a computer check and checked relevant file cabinets, so that his search included a review for any misfiled file. Finally, Mr. Tamoro checked in order to determine that there was no current working file in case #144510. Mr. Tamoro testified that his search took, in all, two days of work.

 

8.  At the hearing, the complainant testified that the records he received on February 7, 2008 referred to additional reports that were not included with the records that were provided. The complainant provided several examples of this circumstance (such as a report stating “[f]or further information, please refer to the report of ….”) The respondents rejoined that a reference to the report of another officer “for further information” does not mean that such other report was ever actually written. Mr. Tamoro further testified that a police officer is not required to write a report simply because the officer responds to a law enforcement assignment. The references in a report by one officer might well be to another report that the officer thought another officer might have done or should have done. On cross-examination, the complainant stated that he had never in his past review of records in this case seen any of the reports that were referenced, but not included, in the records he received on February 7, 2008. 

 

9.  Also at the hearing, the complainant testified that the copy of the statement dated December 29, 1989 by Thomas Sanders that the complainant received on February 7, 2008 was missing three pages, and that in 2001 he had seen a full copy of the statement by Thomas Sanders. On cross-examination of Mr. Tamoro, it was established that Mr. Tamoro did not search for audiotapes, which are stored in a different location from the paper records. The respondents agreed to mail a letter to the hearing officer and the complainant by April 25, 2008 regarding these two issues: a) the three missing pages of the statement by Mr. Sanders; and b) and the results of a search for audiotapes in case #144510. The hearing officer had not received any such letter as of May 15, 2008.     

 

10.  Finally, it is found that any audiotape relating to case #144510 is not an “incident report” and therefore is not within the scope of the complainant’s request set forth at paragraph 2, above. Rather, any audiotape relating to case #144510 would be a contemporaneous record of certain events, rather than a report of an officer written after the occurrence of relevant events.    

 

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

 

12.  It is concluded, based on the facts and circumstances of this case, that the time period between the request on September 7, 2007 and the provision of records to the complainant on February 7, 2008 was not prompt, and therefore violated the requirements of §§1-210(a) and 1-212(a), G.S.      

 

13.  It is concluded that, with the possible exception of the three missing pages discussed at paragraph 9, above, the respondents have provided to the complainant all the records that they maintain or keep on file that are within the scope of the complainant’s September 7, 2007 request.

 

14.  It is concluded that the respondents failed to prove that they provided the three missing pages discussed at paragraph 9, above, to the complainant. Moreover, the respondents did not avail themselves of the opportunity provided at the hearing to address the three missing pages, with a letter that the respondents agreed to write to the hearing officer.      

 

15.  It is concluded that the failure to complete the last step of a search that was generally diligent caused the respondents not to provide (or otherwise explain) the three missing pages discussed at paragraph 9, above, to the complainant. This action violated the requirements of §§1-210(a) and 1-212(a), G.S.      

   

16.  With respect to the complainant’s 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.

 

17.  Based on the findings in paragraphs 6 and 7, above, concerning the search for the requested records and the provision of records without charge, the Commission finds that the respondent’s failure to comply with the FOIA was not without reasonable grounds and declines to impose a civil penalty.

 

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

 

1. Henceforth, the respondents shall provide requested records to the complainant and other incarcerated persons promptly.   

 

2.  The respondents shall perform a diligent search for the three missing pages discussed at paragraph 9, above. If the respondents find that they maintain such records, they shall promptly provide the three missing pages to the complainant.

 

3.  The respondents shall write a letter to the Commission reporting on the status of the three missing pages discussed at paragraph 9, above, within two weeks of the mailing of the final decision in this case.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 11, 2008.

 

 

________________________________

S. Wilson

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:

 

Troy Mozell, #167180

Garner Correctional Institution

P.O. Box 5500

Newtown, CT 06470

           

Francisco Ortiz, Chief, Police Department,

City of New Haven; and Police Department,

City of New Haven 

c/o Kathleen M. Foster, Esq.

Assistant Corporation Counsel

165 Church Street, 4^th Floor

New Haven, CT 06510

 

 

 

 

___________________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2007-529FD/sw/6/12/2008