Please refer to the attached Method of Compliance with the Notification Requirements of
Conn. Gen. Stat. §1-210(c), G.S., which supersedes the orders of the Commission herein.

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 10 and 22, 2008, at which times the complainant and respondents 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.). 

           

                For purposes of hearing, the above captioned matter was consolidated with Docket #FIC 2007-658; Luis Salaman v. Francisco Ortiz, Chief, Police Department, City of New Haven; Sergeant Roger Young, Police Department, City of New Haven; and Police Department, City of New Haven.

 

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated January 23, 2008 and filed on January 25, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his December 28, 2007 records request.  The complainant requested the imposition of a civil penalty against the respondents.

 

3.      By letter dated December 28, 2007, to the respondents, the complainant submitted a request for records which included copies of:

 

a.       information on ticket and report writing;

 

b.      any and all photo logs related to case #03-44764;

 

c.       any and all photographs, regardless of size, related to case #03-44764;

 

d.      any and all film transmittal envelopes and their summaries related to case #03-44764;

 

e.       any and all investigation notes from the notepads of Officers J. Miranda, W. Bullock, and Brosnahan, and Sergeants Esposito and Johannes related to case #03-44764;

 

f.       any and all JD-CR-18 forms that may have been filed related to case #03-44764; and

 

g.      all color mug shot photos of the complainant from his arrests on May 24, 2003 and August 30, 2003.

 

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

 

“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.      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. . . receive a copy of such records in accordance with section 1-212. 

 

6.      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 . . . .”

 

7.      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.

 

8.      With respect to the records described in paragraph 3a, above, the respondents sent a copy of training bulletin 46-26 to the complainant by certified mail which the complainant did not receive; however, the respondents agreed to send a copy of that record to the complainant again. 

 

9.      It is found, however, that the respondents do not maintain any records regarding “ticket writing.” 

 

10.   With respect to the records described in paragraph 3b, above, it is found that the respondents do not maintain any photo logs related to case #03-44764. 

 

11.   With respect to the records described in paragraphs 3c, 3d and 3f, above, it is found that after some discussion at the October 10, 2008 hearing the respondents agreed to conduct another search specifically for those records. 

 

12.   It is found that at the October 22, 2008 hearing, the respondents indicated that they had located the requested photos which included Polaroid photos taken by Sergeant Esposito, color photos of shell casings, and a number of other photos taken by the State Prosecutor’s office. 

 

13.   It is found, however, that the respondents do not maintain a photo log of any of the photos or any film transmittal envelopes as described in paragraphs 3b and 3d, above.

 

14.   It is found that the Polaroid photos taken by Sergeant Esposito, the color photos of shell casings, and the other photos taken by the State Prosecutor’s office were maintained and in the custody of the State Prosecutor’s office and after an inquiry and a request for the records, the respondents were provided with a copy of them on a CD by that office which copy the respondents are willing to provide to the complainant.

 

15.   With respect to the records described in paragraph 3e, above, it is found that the respondents do not maintain any notes from the notepads of Officers J. Miranda, W. Bullock, and Brosnahan, and Sergeants Esposito and Johannes related to case #03-44764. 

 

16.   With respect to the records described in paragraph 3f, above, it is found that the respondents compiled a little over 200 pages of records responsive to another request made by the complainant on November 19, 2007 that included the form described in that paragraph.  

 

17.   It is found that the respondents do not claim any exemption with respect to form JD-CR-18.

 

18.   With respect only to the records described in paragraph 16, above, it is found that, on or about October 7, 2008, the respondents, pursuant to their understanding of the requirements of §1-210(c), G.S., provided those records via e-mail to the FOI Liaison at the Connecticut Department of Correction (hereinafter “DOC”), who, at the time of the October 10, 2008 hearing in this matter, had not provided the records to the complainant nor had she informed him that she had received the records.

 

19.   It is found that the respondents’ belief that they had complied with §§1-210(a), 1-212(a), and 1-212(c), G.S., by providing the requested records to the DOC’s FOI Liaison was mistakenly affirmed by certain members of this Commission’s staff.

 

20.   It is found that the respondents reasonably believed that they had fulfilled the requirements of the law under §§1-210(a), 1-212(a), and 1-212(c), G.S., and made no further contact with the complainant.

 

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

 

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility.

 

22.   Notwithstanding paragraph 19, above, it is concluded that §1-210(c), G.S., requires a public agency to provide all records responsive to an inmate’s records request, for which no exemption is being claimed by that public agency, directly to that inmate after the public agency has notified the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services of the inmate’s records request.  It is concluded that §1-210(c), G.S., does not require a public agency to consult with or provide the responsive records to the Commissioner prior to complying with the inmate’s request. 

 

23.   It is concluded, therefore, that notwithstanding any action taken by the Commissioner of DOC to intercept the complainant’s receipt of the requested records once they were delivered at the correctional institution or facility, the respondents were required to provide form JD-CR-18 to the complainant directly.

 

24.   It is found, therefore, that with respect to the records described in paragraph 3f, above, the respondents failed to promptly comply with the complainant’s request.

 

25.   It is concluded, therefore, that the respondents violated the disclosure provisions of §1-210(a) and 1-212(a), G.S., by failing to promptly comply with the complainant’s request for the record described in paragraph 3f.

 

26.   With respect to the records described in paragraph 3g, above, it is found that the respondents believed that the complainant had recently been provided with a copy of those records pursuant to a prior records request; however, the respondents indicated at the hearing that they would provide the complainant with a copy of his mug shot photos which include six photos in total.

 

27.   Notwithstanding the conclusion in paragraph 25, above, and due to the facts and circumstances of this case, 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.      The respondents shall mail a copy of the training bulletin 46-26, a paper copy of all photos, and a copy of form JD-CR-18 related to case #03-44764 described in paragraphs 3a, 3c, 3f, and 3g, of the findings, above, to the complainant, at his place of incarceration, free of charge.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 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:

 

Luis Salaman, #262626

Carl Robinson Correctional Institution

PO Box 1400

Enfield, CT 06082-1400

 

Chief, Police Department,

City of New Haven; and Police

Department, City of New Haven

c/o Kathleen M. Foster, Esq.

Office of the Corporation Counsel

165 Church Street, 4^th Floor

New Haven, CT 06510

 

Commissioner, State of Connecticut,

Department of Correction

c/o Steven R. Strom, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-057FD/paj/11/18/2008