In the Matter of a Complaint by                        FINAL DECISION


Henry M. Keezing and The Herald,




            against              Docket #FIC 88-440 (Remand)


New Britain Police Department, New Britain Board of Police Commissioners and James Raines,


                        Respondents                 September 12, 1990


            The above-captioned matter was heard as a contested case on December 8, 1988, at which time the complainants, the respondents and James Raines appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with contested case Docket #FIC 88-427.


            Per order of the Superior Court (Freed, J.) dated May 2, 1990, the hearing on this matter was reopened on June 28, 1990, and the Commission examined the records at issue in camera.


            After consideration of the entire record, the following facts are found and conclusions of law are reached:


            1.         The respondents department and board are public agencies within the meaning of 1-18a(a), G.S.


            2.         On September 10, 1988 the New Britain police department received a citizen's complaint, by telephone, concerning the on-duty performance of James Raines, then a sergeant in the department.


            3.         The allegations against Sgt. Raines, if proved, could have led to criminal prosecution.  However, after a consultation with Hartford's chief state's attorney it was decided that there would be no criminal prosecution of the matter.


            4.         The New Britain police department's internal affairs investigation of the complaint against Sgt. Raines lasted from September 10, 1988 to October 18, 1988 and produced a stack of documents approximately 1 1/2" thick.


            5.         A hearing before the respondent board on the matter of the complaint against Sgt. Raines was scheduled for October 25,


Docket #FIC 88-440                           Page Two


1988.  On or about October 18, 1988 Sgt. Raines resigned and the hearing before the respondent board was cancelled.


            6.         By letter dated October 19, 1988 the complainants made a request of the respondent board for a copy of the charges against Sgt. Raines.  By letter of approximately the same date the complainants made a request of the respondent department for a copy of the internal affairs investigation of the complaint against Sgt. Raines.


            7.         By letters dated October 18, 1988 and October 21, 1988 the respondent office of corporation counsel advised Mr. Raines and his collective bargaining representative of the complainants' requests, pursuant to 1-20a, G.S.  By letters of the same dates, Mr. Raines notified the office of corporation counsel of his objection to the release of the requested records.


            8.         By letter of complaint filed with the Commission on November 2, 1988 the complainants appealed the respondents' denial of access to the requested documents.


            9.         At hearing Mr. Raines appeared and, at his request, was made a party to the above matter.


            10.       Also at hearing the respondents' motion to quash subpoenas issued by the complainants, on the ground that only the Commission has authority to issue a subpoena in a matter before it, was denied.


            11.       The respondent board and office of corporation counsel stated at hearing that they gave notice to Mr. Raines of the complainants' request on the ground that the subject records were personnel, medical or similar files within the meaning of 1-20a(b), G.S.  They did not, however, assert any claim of a right to privacy with respect to such records.


            12.  The respondent Raines claims never to have viewed the records in issue.


            13.  It is found, however, that sometime after the initial hearing of December 8, 1988 but before the reopening of the hearing on June 28, 1990, respondent Raines' attorney reviewed the records in question.


            14.       The respondent Raines claims that there is no public interest in disclosure of the requested records and that their disclosure would constitute an invasion of privacy within the meaning of 1-19(b)(2), G.S.


            15.       Respondent Raines' stated personal privacy interest is


Docket #FIC 88-440                           Page Three


that disclosure of the information in question would by its nature cause personal embarrassment to him and his family.


            16.       It is found that the internal affairs records in question are public records within the meaning of 1-18a(d), G.S.


            17.       It is further found that the records in question are personnel, medical or similar files within the meaning of 1-19(b)(2), G.S.


            18.       It is also found that there is a legitimate and overriding public interest in the performance of police officers and in their fitness to perform, including any allegations of misconduct.


            19.       It is concluded that, on balance, the public interest in disclosure of the records in question, which document serious allegations concerning the on-duty conduct of a police officer and the investigation thereof, greatly outweighs the public interest in their disclosure.


            20.       It is also concluded that, on balance, the personal privacy interests in the identities of private citizens and witnesses, and the identities/home addresses of private citizen-witnesses outweighs the public interest in their disclosure.


            21.       Additionally, the respondents claim that a letter dated November 26, 1984 by the corporation counsel (contained on the 5 pages of in camera evidence designated as pages TT, UU, VV, WW, and XX) constitutes a privileged attorney/client communication.


            22.       It is found that the letter identified in paragraph 21, above, is addressed to the chairperson of the respondent board of police commissioners, that copies of the letter were also provided to the mayor as well as to the personnel director, and that the letter was typed by yet another individual.


            23.  It is also found that the letter identified in paragraph 21, above, is in no manner marked as confidential, privileged or proprietary.


            24.       It is found that the letter identified in paragraph 21, above, consists of an outline of general legal principles and guidelines concerning information relating to police misconduct, and it contains no information given by the client to the attorney in confidence.


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            25.  It is concluded that the letter identified in paragraph 21, above, is not exempt from disclosure pursuant to 1-19(b)(10), G.S.


            26.       Finally, the respondents claim that the transcripts of four board of police commissioner hearings into the matter in issue should be exempt from disclosure because the sessions were conducted as executive sessions pursuant to 1-18a(e), G.S.


            27.  It is found that the transcript reflects that at each of the four hearings identified in paragraph 26, above, the following individuals were present: the chairman, two to three commissioners, the chief, a clerk, two attorneys, respondent Raines, a court stenographer, and one to two witnesses.


            28.  It is concluded, therefore, that pursuant to 1-21g(a), G.S., the hearings identified in paragraph 26, above, were not conducted as executive sessions within the meaning of the FOI Act.


            29.  This Commission furthermore notes that the FOI Act provides no exemption for any records of the contents of an executive session an agency chooses to keep; and therefore, any such records kept would become disclosable public records pursuant to 1-19a, G.S.


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


            1.         The respondents board and department forthwith shall provide the complainants with access to inspect and copy all records concerning the September 10, 1988 citizen's complaint against James Raines and the internal affairs investigation thereof, referred to in paragraph 4 of the findings, above.


            2.         In complying with order #1, above, the respondents may redact the following information identified in paragraph 20, above (listed by in camera page designation):


            Page F:  The second word from the left of the fourth line of the fourth paragraph (consisting of the name of a private citizen);

            Page FF: the last word on line 6 of the first full paragraph (consisting of the name of a private citizen);

            Page LL: the fourth and fifth words from the left on line 5 of the third full paragraph (identification information about a private citizen)

            Page OOO: the name of a private citizen/witness appearing on lines 4, 5, 13, 14 and 18

            Page PPP: the names of two private citizens/witnesses appearing 19 times on the page

            Page QQQ: the last word of the third paragraph (names of private citizens)


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            Page RRR: the names of private citizens appearing on the third from the last line of the longest paragraph; and the names of two witnesses appearing nine times on the page

            Page SSS: names of witnesses appearing thirteen times on the page and the names of two doctors appearing in the last paragraph

            Page TTT: the names of witnesses appearing in three places, as well as the names and home addresses of four private citizen witnesses

            Page UUU: the name of a witness appearing twice in the first full paragraph, as well as the names of three doctors appearing in the second full paragraph.


Approved by order of the Freedom of Information Commission at its regular meeting of September 12, 1990.



                                    Tina C. Frappier

                                    Acting Clerk of the Commission


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One Herald Square

New Britain, CT 06050



c/o Joseph M. Musco, Esq.

New Britain City Attorney

185 Main Street

New Britain, CT 06051



c/o George V. Lawler, Esq.

Lawler & Guerrini, P.C.

160 West Street, Suite C

Cromwell, CT 06416



                                    Tina C. Frappier

                                    Acting Clerk of the Commission