FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 14, 2010, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed March 9, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for public records.

 

            3.  It is found that the complainant made a written request on February 4, 2010 for records previously requested on November 30, 2009. Those records are described as:

 

[A]ny materials and reports designated as and relating to a Madison Police Department investigation performed in or about 2008 and 2009 on a member of the Madison, Connecticut police department, and specifically one Sergeant Trent Fox. Request is herein made for copies of the reports, including any requests for warrants, prepared by Lieutenant Robert Stimpson and Officer Kimberly Lauria designated under, no less than Madison police Department case numbers 0800012708 and 0900000822.

 

4.  It is found that the requested records were not provided to the complainant.

 

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:

 

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.  Section 1-212(a), G.S., provides in relevant part, “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

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

 

9.  The respondents maintain that the records may be withheld pursuant to §§1-210(b)(3)(B) and (G), G.S., which 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.

 

10.  It is found that the requested records concern the Madison Police Department’s investigation into an allegation, made over the telephone and recorded on a dispatch tape, that one of its officers, Sergeant Trent Fox, was involved in an incident of family violence in the parking lot of a Dunkin Donuts.

 

11.  It is found that, although the Department concluded that the allegations were unsubstantiated, it nonetheless referred the matter to the State’s Attorney office, which declined to prosecute.

 

12.  It is found that the requested records consist of several witness statements, internal memoranda regarding the investigation, several incident reports, an application for an arrest warrant, and the record of a dispatch conversation.

 

13.  The respondents maintain that the witness statements and the record of the dispatch conversation are exempt from disclosure pursuant to §1-210(b)(3)(B), G.S., as “signed witness statements”.

 

14.  It is also found that a record of a dispatch conversation, while it may contain a recording of an allegation, is not a signed witness statement.

 

15.  It is concluded that the recorded dispatch conversation is not exempt from disclosure as “signed witness statements” within the meaning of §1-210(b)(3)(B), G.S.

 

16.  The respondents maintain that the allegations against Fox were not corroborated or prosecuted, and that therefore all of the records are exempt from disclosure pursuant to §1-210(b)(3)(G), G.S.

 

17.  The respondents additionally maintain that allegations can be deemed uncorroborated even where there exist multiple witness statements, citing Peruta v. Chief, Police Department, Town of Wethersfield, Docket #FIC 1999-493. 

 

18.  The respondents also maintain that if there is no probable cause to prosecute, then the allegations are uncorroborated.

 

19.  It is found, however, that the number of witness statements itself has little bearing on whether the allegations are corroborated or not.  It is the content of the statements, and any other evidence, that matters, not the number.

 

20.  It is also found that the statements corroborate the allegation. One witness said that she saw Fox “punching” the passenger, and that the action was “repeated several times.” According to another witness, Fox shoved the passenger’s head violently.[1]

 

21.  It is also found that other evidence tended to contradict the statements of the witnesses.

 

22.  The Commission has previously observed that “corroborate” means "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence,"  "to state facts tending to produce confidence in the truth of a statement made by another,"  "to give increased support to; make more sure or evident."  Hartford Courant et al. v. Department of Public Safety, Docket #FIC 1994-291.  See also State v. McClendon, 199 Conn. 5, 9 (1985) (corroborating evidence is “evidence supplementary to that already given and tending to strengthen or confirm it”).

 

23.  It is concluded that, while the presence of exculpatory evidence was apparently sufficient to create a lack of probable cause, the allegation was nonetheless strengthened and given some increased support by the two witnesses, even if that corroboration was subsequently considered insufficient.

 

24.  It is also concluded that the standard of probable cause and the standard of lack of corroboration are different, and that an allegation may be corroborated even if there is not probable cause to believe the allegation.  See, e.g., Cerritelli v. City of Derby, Docket #FIC 2008-747.

 

25.  It is also concluded that the Commission’s construction of §1-210(b)(3)(G), G.S., to take into account corroborating evidence that has been discounted or disregarded by the respondents, is consistent with the policy of our Supreme Court to narrowly construe exceptions to the Freedom of Information Act. Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188 (1984).

 

26.  It is therefore concluded that the requested records do not contain uncorroborated allegations, and that the respondents violated §1-210(a), G.S., when they withheld the requested records.

 

 

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

 

1.  The respondents shall forthwith provide the complainant with copies of the requested records, free of charge.  The respondents may withhold any document that is labeled as a witness statement and that is also signed by the witness.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 23, 2011.

 

 

____________________________

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:

 

Daniel R. Hedges

C/o Edmond Clark, Esq.

83 Scotland Avenue

P.O. Box 133

Madison, CT 06443

 

Chief, Police Department,

Town of Madison; and

Police Department, Town of Madison

C/o Floyd J. Dugas, Esq.

Berchem, Moses & Devlin, P.C.

75 Broad Street

Milford, CT 06460

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-166FD/sw/2/28/2011