In the Matter of a Complaint by FINAL DECISION


Joseph R. Killen,




against Docket #FIC 87-358


Chief, Windsor Locks Police Department


Respondent May 11, 1988


The above-captioned matter was heard as a contested case on January 19, 1988, 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. In March, 1987 the complainant filed a gun permit application with the Windsor Locks police department.


3. By letter dated September 4, 1987 the respondent informed the complainant that, based on the results of the police department's background investigation, the complainant's gun permit application had been denied.


4. By letter dated November 23, 1987 the complainant made a request of the respondent for a report of the department's background investigation, including the names and statements of persons interviewed.


5. By letter dated November 27, 1987 the respondent denied the complainant's request.


6. By letter of complaint filed with the Commission on December 9, 1987 the complainant appealed the respondent's denial of his request for records.


7. It is found that a member of the Windsor Locks police department investigated the complainant's fitness for a gun permit by interviewing 12 to 15 neighbors and other acquaintances of the complainant. The officer took notes on their comments, which comments formed the basis of a report submitted to the respondent.


Docket #FIC 87-358 Page Two


8. The respondent claims that he does not wish to release the information to the complainant for fear that the complainant, who has a criminal record, will retaliate against persons who made negative comments and because he does not want to discourage the public from cooperating in the future.


9. The respondent further claims that the officer's report is a preliminary draft or note upon which the respondent based his own final decision, that he made a determination that the public interest in promoting cooperation in such investigations by withholding the report outweighed the public interest in disclosure and that the report is, therefore, exempt from disclosure pursuant to 1-19(b)(1), G.S.


10. It is found that the notes taken by the investigating officer in the course of interviewing acquaintances of the complainant, which notes formed the basis of the officer's report to the respondent, are preliminary drafts or notes within the meaning of 1-19(b)(1), G.S.


11. It is found, based on the respondent's determination that the public interest in withholding the records outweighs the public interest in disclosure, that such notes are exempt from disclosure pursuant to 1-19(b)(1), G.S.


12. It is found, however, that the investigating officer's report to the chief is an intra-agency report comprising part of the process by which a governmental decision was formulated within the meaning of 1-19(c), G.S.


13. It is concluded that such report is not exempt from disclosure pursuant to 1-19(b)(1), G.S., it is, rather, subject to disclosure pursuant to 1-19(c), G.S.


14. The respondent failed to prove that the report submitted by the officer, or the information contained therein, is exempted from disclosure by any provision of the Freedom of Information Act, other state statute or federal law.


15. Under the specific circumstances of this case, however, the Commission declines to order disclosure of the comments of one person whose situation is unique to the complaint and the names of persons who provided information to the investigating officer.


Docket #FIC 87-358 Page Three


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


1. The respondent forthwith shall provide the complainant with access to inspect or copy the report referred to at paragraph 12 of the findings, above.


2. In complying with paragraph 1 of the Order, above, the respondent may mask or delete the comments of one person whose situation is unique to the complaint and the names of persons who supplied information concerning the complainant's suitability for a gun permit.


Approved by order of the Freedom of Information Commission at its regular meeting of May 11, 1988.



Catherine H. Lynch

Acting Clerk of the Commission