FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Juan P. Gonzales,
against Docket #FIC 92-369
Respondent July 28, 1993
The above-captioned matter was heard as a contested case on May 7, 1993, 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 and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter dated November 13, 1992, the complainant requested from the respondent "the amount paid by the City of Bridgeport to Attorney Donald Houston for his presentation of a case involving [the complainant] before the Bridgeport Board of Police Commissioners."
3. It is found that on December 1, 1992, the respondent's secretary informed the complainant that his request was being reviewed by the City Attorney; thereafter on December 11, 1992, the City Attorney informed the complainant that he might not be able to obtain the requested information.
4. By letter dated December 14, 1992 and filed December 16, 1992, the complainant appealed the respondent's denial of access to the requested information to this Commission.
5. It is found that the complainant's request pertains to the Bridgeport Police Department's (hereinafter "BPD") hiring of independent counsel to present its position in hearings before the Bridgeport Board of Police Commissioners. The hearings resulted from the BPD's internal investigation of an off-duty incident involving the complainant (hereinafter "investigation") and were conducted for the purpose of determining the
Docket #FIC 92-369 Page 2
appropriate disciplinary action to impose upon the complainant.
6. Although the respondent did not testify at the hearing on this matter and did not conduct a search to ascertain whether records exist containing the requested information, his counsel represented that the respondent, in fact, maintains records containing such information.
7. It is concluded that such records containing the requested information are public records within the meaning of 1-18a(d), G.S.
8. The respondent maintains that because the complainant filed a notice of intent to bring action against the City and has filed complaints with both the State Board of Mediation and Arbitration (hereinafter "SBMA") and the State Commission on Human Rights and Opportunities (hereinafter "CHRO"), the records containing the requested information are exempt from disclosure pursuant to the provisions of 1-18a(g) and (h), 1-19(b)(4) and 1-19b(b), G.S.
9. It is found that the complainant has indicated in writing his intention to file a complaint against the BPD and its chief alleging that he received discriminatory treatment in connection with the events described in paragraph 3, above, although as of the date of hearing in this matter, the complainant has not filed any court action as a result of such events.
10. It is found however, that on or about January 21, 1993, the complainant filed a complaint with CHRO alleging that the BPD employed discriminatory practices in the conduct of its investigation and in meting out disciplinary action against the complainant.
11. It is further found that as of the date of hearing in this matter, the complainant had an appeal pending before the SBMA relative to the disciplinary action taken against him.
12. Section 1-19(b)(4), G.S., exempts from disclosure records "pertaining to strategy or negotiations with respect to pending claims and litigation to which the public agency is a party...."
13. Sections 1-18a(g) and (h), G.S., define the terms "pending claims" and "pending litigation" for purposes of the Freedom of Information ("FOI") Act.
14. It is found that both the complainant's CHRO complaint and his appeal before the SBMA constitute pending claims or pending litigation within the meaning of 1-18a(g) and (h), G.S.
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15. It is further found however, that the respondent failed to prove that the records containing the requested information pertain to "strategy or negotiations" with respect to either of the pending matters within the meaning of 1-19(b)(4), G.S.
16. Consequently, it is concluded that the 1-19(b)(4), G.S., exemption is not applicable to the subject records in this case.
17. Section 1-19b(b), G.S., provides that nothing in the FOI Act shall be deemed in any manner to affect the rights of litigants under the laws of discovery of this state.
18. It is found that the respondent failed to prove his claim with regard to 1-19b(b), G.S., above. Rather, he merely asserted that since the complainant voluntarily filed a CHRO complaint, an appeal to the SBMA and a notice of intent to bring an action against the City, he should avail himself of the discovery processes available to him and should not be permitted to use the FOI Act to gain access to the requested information.
19. It is found that the respondent's assertion described in paragraph 18, above, fails to demonstrate how disclosure of the subject records would in any way affect the rights of litigants under the laws of discovery of this state.
20. It is concluded therefore that the respondent violated the provisions of 1-15(a) and 1-19(a), G.S., by failing to provide the complainant with the records maintained by him that contain the requested information, as described in paragraph 2, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith conduct a search of the records maintained by him and provide the complainant, at no cost to him, a copy of any record that contains the requested information, as described in paragraph 2, of the findings above.
2. Henceforth the respondent shall act in strict compliance with the provisions of 1-15(a) and 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 28, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
Juan P. Gonzales
3561 Main Street
Bridgeport, CT 06606
c/o Atty. John H. Barton
Associate City Attorney
202 State Street
Bridgeport, CT 06604
Debra L. Rembowski
Acting Clerk of the Commission