In the Matter of a Complaint by FINAL DECISION


Ray A. Cooke,




against Docket #FIC 88‑406


Norwalk Police Department,


Respondent December 20, 1988


The above‑captioned matter was heard as a contested case on October 24, 1988, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated and heard simultaneously with Docket #FIC 88‑365.


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 September 30, 1988, the complainant requested the respondent provide him with access to or copies of the respondent's internal affairs investigation #88‑018‑IA.


3. By letter dated October 7, 1988, and filed with the Commission on October 12, 1988, the complainant appealed to the Commission, alleging the denial of his request.


4. The respondent claims that the complainant cannot use the Freedom of Information Act to circumvent ongoing federal court discovery procedures concerning the requested records. The respondent further claims that the requested records are exempt from disclosure under 1‑19(b)(2), 1‑19(b)(4) and 1‑19(b)(10), G.S. In addition, the respondent claims the complainant filed this complaint with the Commission in retaliation for police action at the complainant's business and requests the imposition of a civil penalty against the complainant.


5. At the hearing, the complainant alleged the respondent failed to comply with the Commission's order in Docket #FIC 88‑76 and requested the imposition of a civil penalty against the respondent and respondent's counsel.


6. It is found that the complainant and his brother are plaintiffs in Civil No. B88 368, a case pending in the United States District Court, District of Connecticut.


Docket #FIC 88‑406 Page Two


7. It is found that the respondent, the respondent's police chief, and the detective who is the subject of the investigation in question are defendants in that same case.


8. It is found that on August 9, 1988, the complainant, as plaintiff in the federal case, addressed a set of interrogatories to the respondent's police chief which included a request for the production of all documentation of any complaints about the detective, "including the results of any and all investigations, discipline and penalties arising from such complaints."


9. It is found that on August 18, 1988, the respondent's police chief, as defendant in the federal suit, objected to the request for production.


10. Thus it is concluded that at the time the complainant requested the records of the investigation, and at the time the complainant appealed to the Commission, the records were the subject of a discovery dispute in litigation brought by the complainant in District Court.


11. Since the question of whether the respondent should disclose the requested records to the complainant was properly before the District Court at the time of the complainant's appeal to the Commission, as a matter of policy the Commission extends full comity to the decision of the District Court on that issue.


12. The Commission notes that it therefore need not address the other claims of the respondent and declines to impose a civil penalty against the complainant.


13. The Commission also notes that it cannot here address the complainant's allegations as to non‑compliance with the order in Docket #FIC 88‑76, as it goes beyond the scope of the written complaint in this matter. The Commission declines to impose a civil penalty against the respondent or its counsel at this time.


The following order of 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 special meeting of December 20, 1988.



Catherine H. Lynch

Acting Clerk of the Commission