In the Matter of a Complaint by FINAL DECISION


Fred S. O'Donnell,




against Docket #FIC 90-487


Waterbury Fire Marshal and Waterbury Fire Department,


Respondents October 23, 1991


The above-captioned matter was heard as a contested case on April 22, 1991, at which time the complainant 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 of law are reached:


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


2. By letters of request to the respondent fire marshal dated November 13 and 30, 1990 (hereinafter "document requests"), the complainant requested copies of all documentation, including photographs and videotapes, for fires that occurred on or about May 25 and June 29, 1990 at 282 Scott Road ( hereinafter "first fire") and 1575 Thomaston Avenue (hereinafter "second fire"), respectively.


3. For each fire, the complainant requested copies of the following:


(a) the initial and final investigative reports;


(b) "902 reports" to the state fire marshal;


(c) narrative and interim reports;


(d) fire department run reports and related documents; and


(e) news releases, correspondence, or statements pertaining to evidence recovered from the fire scenes, including photographs or videotapes taken by, or recovered from witnesses to, or bystanders at each fire.


Docket #FIC 90-487 Page 2


4. By letter of complaint dated and postmarked December 11, 1990, the complainant alleged that the respondents failed to comply with his document requests.


5. It is found that the requested documents are public records as defined by 1-18a(d), G.S.


6. With respect to the first fire, the respondents argue that the complainant has received the records described in paragraphs 3(a)-(e) of the findings, above.


7. It is found that the records concerning the first fire were provided to the complainant prior to the hearing on this matter or that the complainant subsequently obtained a copy of them.


8. It is found that with the exception of the narrative/final report, all of the records requested were provided to the complainant prior to his document request or that the complainant subsequently obtained a copy of them.


9. It is found that the narrative/final report was given to the complainant on or about March 6, 1991.


10. It is found that, in part, the considerable delay in disclosure of the narrative/final report occurred because the report could not be completed before an electrical expert examined the wiring in the building.


11. It is found, however, that the electrical expert orally gave his report to the respondents sometime in January, 1991.


12. It is concluded that, notwithstanding the time that it took to receive the expert's report, the respondents failed to "promptly" provide a copy of the narrative/final report, in accordance with 1-15, G.S.


13. It is found that with respect to the second fire the respondents have not provided the complainant with any of the requested records.


14. At the hearing, the respondents argued that the documents requested in connection with the second fire are exempt from disclosure pursuant to 1-19(b)(3), G.S.


Docket #FIC 90-487 Page 3


15. Section 1-19(b)(3), G.S., permits a public agency to withhold from public disclosure:


"records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of ... information to be used in a prospective law enforcement action if prejudicial to such action, ... [or] investigatory techniques not otherwise known to the general public ...."


16. It is found that at the time of the document request the state's attorney's office was pursuing a criminal investigation into the cause and origin of the second fire.


17. It is found that the respondents assisted in the arson investigation that led to the arrest and filing of felony arson charges against the owner/occupant of the Thomaston Avenue premises.


18. It is found that the respondents informed the complainant that they would provide him with the records that the state's attorney's office determined would not compromise the ongoing criminal investigation.


19. Under the facts of this case, it is found that to the extent that the respondents were responsible for conducting the arson investigation into the second fire, the respondents were "law enforcement agencies" within the meaning of 1-19(b)(3), G.S.


20. However, it is concluded that the respondents' failure to review the documents requested by the complainant, and alternatively, their failure to request that the state's attorney's office review the documents and disclose to the complainant all documents relating to the second fire that would not compromise the ongoing criminal action constitutes a violation of 1-15 and 1-19, G.S.


Docket #FIC 90-487 Page 4


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


1. Henceforth the respondents shall act in strict compliance with the disclosure provisions of 1-15 and 1-19, G.S.


2. If the criminal prosecution and investigation concerning the second fire is still pending, the respondents shall immediately review and disclose the documents in accordance with paragraph 20 of the findings, above, and provide the complainant with a properly executed affidavit that the remaining documents fall within the 1-19(b)(3), G.S., exemption.


3. When the criminal investigation and prosecution has concluded, the respondents shall forthwith provide the complainant with the records he requested concerning the second fire, in accordance with 1-15 and 1-19, G.S.


Approved by Order of the Freedom of Information Commission at its regular meeting of October 23, 1991.



Karen J. Haggett

Clerk of the Commission


Docket #FIC 90-487 Page 5





Fred S. O'Donnell

P.O. Drawer E

Mystic, CT 06355


Waterbury Fire Marshal and Waterbury Fire Department

c/o Vincent J. Flynn, Esq.

Assistant to the Corporation Counsel

City of Waterbury

236 Grand Street

Waterbury, CT 06702



Karen J. Haggett

Clerk of the Commission