FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
William H. Narwold,
against Docket #FIC 87-218
Jeffrey B. Garfield, Executive Director and General Counsel, State Elections Enforcement Commission,
Respondent October 28, 1987
The above-captioned matter was heard as a contested case on September 1, 1987, at which time the complainant 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:
1. The respondent is a public agency within the meaning of §1-18a(a), G.S.
2. By letter dated July 27, 1987, the complainant requested copies of all records concerning the complaint filed by James Dyer (hereinafter "Complaint #87-108") on June 4, 1987 with the State Elections Enforcement Commission (hereinafter "SEEC").
3. By letter dated July 31, 1987, the respondent stated the complainant could inspect and copy all of the records relating to Complaint #87-108, except for the following records:
a. A three-page letter dated June 22, 1987, from Gary A. Kurpiewski, Chairman of the Republican Town Committee, to Douglas Levine of the Office of the United States Attorney (hereinafter "Item #8").
b. A tape recording of a July 6, 1987 subpoena proceeding with Patrick L. Carroll (hereinafter "Item #35").
c. The handwritten notes of two SEEC investigators generated during the course of their investigation of Complaint #87-108 (hereinafter "handwritten notes").
Docket #FIC 87-218 Page 2
4. By letter of complaint dated August 3, 1987 and filed with the Commission on August 4, 1987, the complainant alleged the respondent denied his request for public records in violation of the Freedom of Information Act and requested the imposition of a civil penalty.
5. By letter dated August 27, 1987, the complainant filed a subsequent complaint with the Commission and requested the complaint be heard at the same time as Docket #FIC 87-218.
6. By letter dated August 31, 1987, the respondent objected to the complainant's request to consolidate described in paragraph 5, above, alleging there was insufficient time to respond to the complainant's latest appeal since he had not received it until August 31, 1987.
7. At the hearing, the complainant's request to consolidate the complaint described in paragraph 5, above, was denied.
8. The respondent claims:
a. Items #8 and #35 are exempt from public disclosure under §1-19(b)(3)(B), G.S.
b. The handwritten notes are exempt from public disclosure under §§1-19(b)(1) and 1-19(b)(3)(B), G.S.
c. To require the disclosure of the records requested would interfere with the rights of litigants under the laws of discovery of this state in violation of §1-19b(b), G.S., and would violate 18 U.S.C. §3500, Rule 16 (a)(2) of the Federal Rules of Criminal Procedure.
d. The disclosure of the records requested would subject witnesses and informants to potential harassment and intimidation and would discourage further cooperation from potential witnesses and informants.
e. The disclosure of the records requested may enable an individual to construct a defense to an alleged violation of the state election laws and thus violations would go unremedied.
f. The disclosure of the records requested may result in pretrial publicity that could harm innocent members of the public and could prejudice the outcome of the case.
Docket #FIC 87-218 Page 3
9. Pursuant to §9-7b(13), G.S., the SEEC is deemed a law enforcement agency for purposes of §1-19(b)(3), G.S., to the extent that it is involved in an investigation of alleged or suspected criminal violations of any provision of the general statutes relating to an election, primary or referendum and is engaged in such investigation for the purpose of presenting evidence to the chief state's attorney.
10. It is found the SEEC currently is conducting an investigation of Complaint #87-108 to determine whether there has been a violation of §9-333w, G.S.
11. It also is found any violation of §9-333w, G.S., committed knowingly and willfully, could subject the offender to criminal penalties under §9-333y, G.S.
12. It further is found if the SEEC's investigation reveals evidence of a violation of §9-333w, G.S., it is authorized to refer such evidence to the chief state's attorney pursuant to §9-7b(7), G.S.
13. It is concluded the SEEC is a law enforcement agency for purposes of §1-19(b)(3), G.S., to the extent that it is investigating an alleged violation of §9-333w, G.S., for the purpose of referring such evidence to the chief state's attorney, pursuant to §9-7b(13), G.S.
14. It is found Item #8, Item #35 and the handwritten notes are public records within the meaning of §1-18a(d), G.S.
15. It also is found Item #8 contains a statement of a potential witness made to a United States Attorney that concerns the SEEC's investigation of Complaint #87-108 and an alleged violation of a federal criminal statute.
16. It further is found Item #35 is a recording of a subpoena proceeding conducted on July 6, 1987 and comprises part of the SEEC's investigation of Complaint #87-108.
17. It further is found the handwritten notes contain the identities of witnesses and informants, statements of the inspectors' perceptions of potential witnesses, investigatory leads and strategies, and other information that may invade individuals' personal privacy.
18. It further is found although the SEEC neither has named a respondent nor referred any evidence to the chief state's attorney concerning Complaint #87-108, it actively is conducting an investigation of the complaint to determine whether there has been a violation of §9-333w, G.S., and presently is in the "middle to late middle stages" of its investigation.
Docket #87-218 Page 4
19. It is concluded, given the current status of the respondent's investigation of Complaint #87-108, disclosure of Item #8, Item #35 and the handwritten notes would be prejudicial to a prospective law enforcement action and therefore such records are exempt from public disclosure under §1-19(b)(3)(B), G.S.
20. It also is concluded the respondent's failure to release Item #8, Item #35 and the handwritten notes to the complainant was not a violation of §§1-15 and 1-19(a), G.S.
21. Consequently, the Commission declines to impose a civil penalty against the respondent.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by order of the Freedom of Information Commission at its regular meeting of October 28, 1987.
Catherine H. Lynch
Acting Clerk of the Commission