FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Paul Choiniere and The Day,
against Docket #FIC 93-29
Chief of Police, Norwich Police Department,
Respondent September 22, 1993
The above-captioned matter was heard as a contested case on June 9, 1993, at which time the complainants 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 of complaint dated February 3, 1993, and filed with the Commission on February 4, 1993, the complainants appealed the respondent's January 21, 1993 denial of their request for records.
3. It is found that the complainants requested copies of two internal investigation reports, including written statements, internal memoranda, or other documents prepared or gathered by the respondent concerning: (a) allegations of abuse of the respondent's motor vehicle towing policies by police personnel (hereinafter "towing incident"), and (b) an incident involving police officers of the respondent department at a party at Mohegan Park (hereinafter "park incident").
4. It is found that by letter dated January 21, 1993, the respondent denied the complainants' records request, claiming that the records were exempt from disclosure under 1-19(b), G.S., as records pertaining to "ongoing/pending claims, litigation and law enforcement actions to which the City of Norwich is a party."
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5. The respondent concedes that investigations were conducted into the towing and park incidents, and that records were generated and compiled by either the respondent or some other public agency in connection with those investigations.
6. The respondent did not offer to produce the records at issue for in camera review by the Commission.
7. It is found that the investigation into the towing incident was conducted by the Norwich City Manager's office with assistance from the deputy chief of police, and legal counsel for Norwich.
8. It is found that the investigation into the towing incident was concluded prior to the complainants' records request, and the allegations of abuse were determined to be unfounded.
9. Specifically, it is found that the deputy chief of police authored a report which contained the findings and recommendations of those who investigated the towing incident, (hereinafter "towing report").
10. It is found that on or about January 4, 1993, the deputy chief left the Norwich Police Department and turned over the towing report and towing incident file (hereinafter "towing records"), to the respondent.
11. It is found that subsequent to his receipt of the towing records, the respondent transferred possession of all of the documents concerning the towing incident to an attorney representing the City of Norwich and the respondent in a lawsuit related to the towing incident.
12. The respondent did not provide the Commission with either an exact or approximate date of the transfer, and claims attorney-client privilege for that information.
13. Connecticut's common law rule of attorney-client privilege has been stated as follows:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance
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permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
LaFaive v. DiLoreto, 2 Conn. App. 58, 65 (1984).
14. It is found that the respondent failed to prove that at the time of the complainants' records request the towing records were not in its possession.
15. It is also found that even if the the towing records had already been transferred to counsel at the time of the complainants' request, their wholesale transfer to a private law firm to allegedly facilitate representation in a pending legal matter, neither changes their character as public records, nor establishes an exemption to their public disclosure.
16. The respondent claims that the towing records are exempt from disclosure because there is a lawsuit pending involving the towing incident.
17. It is found that on or about October 7, 1991, the respondent became a party to a lawsuit involving the towing incident.
18. It is found that while the towing records that were prepared or compiled by either the respondent or some other public agency, in connection with the investigation into the towing incident, may prove useful in a civil action concerning the towing incident, the respondent failed to prove that the towing records were in fact "records pertaining to strategy and negotiations with respect to pending claims or litigation," in accordance with 1-19(b)(4), G.S.
19. It is therefore concluded that the respondent failed to prove the applicability of 1-19(b)(4), G.S., or any exemption to disclosure of the towing records.
20. It is found that the state's attorney's office, with assistance from the respondent, is conducting the investigation into the park incident involving approximately fourteen of the respondent's police officers.
21. It is found that to date, as a result of that investigation, criminal charges have been filed against one police officer, who has been fired, while approximately eleven officers have been disciplined or reprimanded, and approximately seven grievances are pending as a result of actions taken against some of the officers.
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22. The respondent claims that the park incident records are not subject to public disclosure because they contain information that is inculpatory rather than exculpatory in that the records contain allegations of misconduct and/or unprofessional conduct on the part of the police officers involved, and the records would subject the police officers to embarassment.
23. Specifically, the respondent claims that 1-19(b)(2), 1-19(b)(3)(B) and 1-19(b)(4), G.S., as well as rules 26(b) and 37(a) of the Federal Rules of Civil Procedure (hereinafter "FRCP"), preclude disclosure of the park incident records.
24. The respondent concedes that all of the records pertaining to the park incident are maintained cumulatively not in personnel files, but rather in internal investigation files (hereinafter "park records"), and that the files also include one document that summarizes the findings and recommendations of those conducting the investigation (hereinafter "park report").
25. None of the police officers, who are allegedly the subjects of the park records, and on whose behalf the respondent claimed the applicability of 1-19(b)(2), G.S., appeared at the hearing.
26. It is found that the police officers who are the subjects of the park records and the respondent failed to prove that the park records are maintained as personnel files within the meaning of 1-19(b)(2), G.S.
27. It is further found that even if the park records constitute personnel files, the subject police officers and the respondent failed to establish: (a) an expectation of privacy on the part of the subject police officers in the records requested, and (b) that such an expectation was reasonable within the meaning of 1-19(b)(2), G.S., as expounded upon in Chairman v. FOIC, 217 Conn. 193 (1991).
28. Accordingly, under the facts of this case, the respondent failed to demonstrate the applicability of the 1-19(b)(2), G.S., exemption to the records at issue.
29. With respect to 1-19(b)(3)(B), G.S., the respondent claims that because the statute of limitations has not yet run on the state's ability to bring criminal charges against other police officers involved in the park incident, the park records are not subject to public disclosure.
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30. In this particular case, it is found that the respondent's speculation about the opportunity to commence a law enforcement action because the statute of limitations has not yet lapsed, is not sufficient to establish that the information contained in the requested records is "information to be used in a prospective law enforcement action," as set forth in 1-19(b)(3)(B), G.S.
31. It is also found that even if the park records are to be used in such an action, the respondent failed to prove that public disclosure of the park records would be prejudicial to such an action, in accordance with 1-19(b)(3)(B), G.S.
32. It is concluded that the respondent failed to meet its burden of proving the applicability of 1-19(b)(3)(B), G.S., to the park records.
33. It is found that although the park records prepared or compiled by the respondent or some other public agency, in connection with the investigation into the park incident, may prove useful in pending or future criminal or civil actions arising from the park incident, the respondent failed to prove that the park records were in fact "records pertaining to strategy and negotiations with respect to pending claims or litigation," in accordance with 1-19(b)(4), G.S.
34. It is therefore concluded that the respondent failed to prove the applicability of 1-19(b)(4), G.S., to the park records.
35. Rules 26(b) and 37(a), FRCP, set forth the rules for the scope of discovery and discovery sanctions for parties to a civil action pending in a federal court.
36. The respondent argues that there are discovery motions pending in the federal court that preclude disclosure of the park records until the court issues its ruling. The respondent also claims that FRCP preempts the Freedom of Information ("FOI") Act in this case.
37. It is found that the respondent failed to establish that the complainants are parties to any litigation concerning the park incident, or involving the respondent, that is pending in either a state or federal court.
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38. It is found that the complainants' records request is not a discovery request, or an attempt to circumvent discovery rules, and therefore the respondent failed to prove that the records request was inappropriate under the FOI Act, notwithstanding the respondent's involvement in a pending federal court action.
39. It is concluded that under the facts of this case, rules 26(b) and 37(a), FRCP, cannot be construed to limit the rights of members of the public, who are not parties to any federal proceeding involving the respondent, to obtain copies of, or access to "public records" as defined in 1-18a(d), G.S.
40. It is therefore concluded that the respondent withheld records that it failed to prove were wholly or partially exempt from disclosure under the FOI Act.
41. It is found that the towing report more fully described in paragraphs 3 and 9 of the findings, above, relate to the conduct of the public's business as carried out by the respondent and were received and retained by the respondent within the meaning of 1-18a(d), G.S.
42. It is found that the park report more fully described in paragraphs 3 and 24 of the findings, above, relate to the judgment and conduct of a group of police officers in a public park, and therefore directly relates to those police officers' fitness as public servants entrusted with upholding the law and protecting the citizenry of Norwich.
43. It is therefore concluded that the towing and park records at issue are public records as defined by 1-18a(d), G.S., and are subject to disclosure pursuant to 1-15 and 1-19, G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Within seven (7) days of the date of mailing of the notice of final decision in this case, the respondent shall provide, at no cost to the complainants, copies of the towing and park reports.
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2. Within seven (7) days of the date of mailing of the notice of final decision in this case, the respondent shall provide the complainants with access to all towing and park records for purposes of reviewing and tagging for copying those records that the complainants wish to have copied. The copies shall be provided, at no cost to the complainants, within seven (7) days of the date of tagging.
3. In complying with paragraphs 1 and 2 of this order, the respondent may redact, delete or blacken all references to, and the names and personally identifying information of otherwise confidential informants and third parties who provided statements or information in connection with the towing and park investigations.
4. The respondent shall henceforth fully comply with the disclosure provisions of 1-15 and 1-19, G.S.
5. The Commission notes that the respondent's wholesale transfer of the original towing records, especially without retaining duplicates as permanent records may not be in compliance with state law with respect to the retention and removal of public records.
6. The Commission notes further that the presentation of this case by respondent's counsel, and his failure to make available to the Commission all information that would facilitate the decision making process in this case, made it extremely difficult for the Commission to determine the applicability of claimed exemptions to disclosure. Consequently, where appropriate, the inferences have been drawn against the respondent because of his attorney's obfuscation.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 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:
Mr. Paul Choiniere and The Day
New London, CT 06320
Chief of Police, Norwich Police Department
c/o Marc S. Mandell, Esq.
71 East Town Street
Norwich, CT 06360
Debra L. Rembowski
Acting Clerk of the Commission