FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on May 10, 2011, at which time the complainants 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 are reached. 

 

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

 

2.      It is found that, by letter dated October 19, 2010, the complainants made a request for a copy of all records related to an automobile accident, which accident occurred on November 6, 2008 in the City of New Haven.  The complainants specified that their request included, but was not limited to, the following categories of records:

 

A.    All written or non-written statements of any kind by any person;

B.     All written or non-written material of any kind relating to any and all interviews conducted by any person;

C.     All reports, memoranda, and written documents relating in any way to the investigation of this matter;

D.    All internal memoranda or written or non-written materials of any kind relating in any way to the conduct, supervision, or conclusions reached by all parties involved in the investigation of this matter;

E.     All correspondence or communications of any kind by persons of any kind, not limited to persons employed in a law-enforcement capacity, such as lay-persons not employed by the State of Connecticut; and/or [stet];

F.      All audio, video, and other multimedia documents or files that were created, that in any way relate to this matter.  This request includes, but is not limited to, all photographs and audio/video recordings captured by any microphone or camera that was located on any person or in any location including but not limited to a police cruiser, located on any person or in any location including but not limited to a police officer, and/or located within the police department that in any [way] captured audio or video of any individual or place listed above;

G.    Any and all search warrants or arrest warrants together with warrant applications related in any way to these events as well as inventories and/or photographs of searched premises and items seized;

H.    Any and all applications and requests for a grand jury investigation of this matter;

I.       Any written communications of any kind of the Connecticut State Police, State Prosecutors, United States’ Attorney’s office, or any law enforcement agency of any kind involving the investigation of this matter;

J.       All police investigative reports of any kind relating to these matters.

 

3.      By letter dated October 24, 2010 and filed November 1, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for the records.

 

4.      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 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 . . . (3) receive a copy of such records in accordance with 1-212.

 

6.      Section 1-212(a)(1), 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.”

 

7.      It is found that the respondents maintain the records described in paragraph 2, above, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

8.      After the hearing in this matter commenced, the parties requested that the hearing officer step out of the hearing room so that they could review the records produced by the respondents thus far in response to the records request.  When the hearing reconvened, the parties represented to the hearing officer that the complainants wanted the respondents to conduct an additional search for nine additional items or categories of records.  The respondents agreed that they would conduct this additional search and provide any records discovered as a result of this search to the complainants. 

 

9.      The parties were instructed that, in the event that additional matters needed to be adjudicated in connection with the search described in paragraph 8, above, they should report back to the hearing officer within one month so that this hearing could be reopened. 

 

10.  By email dated July 28, 2011, the respondents notified the complainants that, despite the fact that they have been conducting the agreed-to search, they have been unable to locate any additional responsive documents.  The respondents copied the hearing officer on this correspondence.  Such correspondence is hereby marked as respondents’ after-filed exhibit number one. 

 

11.  To date, neither the complainants nor the respondents have moved to reopen the hearing in this case or have raised any issue with regard to the respondents’ search. 

 

12.  It is found that, in response to the request for records and prior to the hearing in this case, the respondents provided the complainants with a package of responsive records, approximately one inch thick.  The complainants challenge the redactions made by the respondents on two of the pages of a supplemental police report contained in the package.

 

13.  On June 6, 2011, the respondents submitted the records described in paragraph 12, above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  Such in camera records shall be identified at IC-2010-686-01 and IC-2010-686-02. 

 

14.  The respondents contend that only the redactions made in the IC-2010-686-01 and IC-2091-686-02 are permissible pursuant to §§1-210(b)(3)(C) and (G), G.S.  

 

15.  Section 1-210(b)(3)(C), G.S., provides that nothing in the FOI Act shall require disclosure of the following:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of a crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (C) information to be used in a prospective law enforcement action if prejudicial to such action.

 

16.  It is found that, at the time the respondents reviewed the records at issue in this case, the respondent department was still in the process of investigating the accident and there was the potential for the department’s investigation to lead to criminal charges being filed against an individual or individuals.

 

17.  It is found however that, at this time, the respondents’ criminal investigation is over.  It is further found that, prior to the contested case hearing, the respondent department’s case was closed without criminal charges being filed against any individual.

 

18.  Accordingly, it is concluded that, while the respondents did not violate the disclosure provisions of the FOI Act at the time it redacted IC-2010-686-10 and IC-2010-686-02 and at the time it refused to disclose this information, once the investigation was closed and it was clear that the investigation would not lead to a criminal prosecution, the exemption claimed pursuant to §1-210(b)(3)(C), G.S., was no longer valid.  

 

19.  The respondents also claim that the redacted information is exempt pursuant to §1-210(b)(3)(G), G.S., which section provides that nothing in the FOI Act shall require the disclosure of the following:

 

 Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of a crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

 

20.  Section 1-216, G.S., provides as follows:

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records. 

21.  After a careful review of the in camera records, it is found that such records are records of a law enforcement agency, not otherwise available to the public, which records were compiled in connection with, in the first instance, the investigation of a motor vehicle accident.  However, it is further found that, while investigating the motor vehicle accident, certain criminal allegations were made, and statements were gathered in connection with the detection or investigation of crime.  It is found that the respondents have only redacted these statements and the related information concerning the criminal investigation of their case from the in camera records.

 

22.   It is also found that disclosure of the redacted portions of the in camera records would not be in the public interest because it would result in the disclosure of uncorroborated allegations subject to destruction pursuant to §1-216, G.S.

23.  It is concluded that the respondents did not violate the FOI Act by withholding the redacted portions of the in camera records. 

 

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

1.      The complaint is dismissed. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 24, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Connie Chen and Laura Piao

c/o A. Paul Spinella, Esq.

Spinella & Associates

Attorneys at Law

One Lewis Street

Hartford, CT  06103

 

 

Chief, Police Department, City of New Haven; and

Police Department, City of New Haven

c/o Kathleen M. Forster, Esq.

Office of the Corporation Counsel

165 Church Street

New Haven, CT  06510

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-686/FD/cac/8/25/2011