FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Maria T. Hileman and The Day,
against Docket #FIC 93-23
State of Connecticut, Connecticut State Library,
Respondent October 13, 1993
The above-captioned matter was heard as a contested case on June 21, 1991, when the hearing was continued to July 7, 1993, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint. At the hearing into this matter, the city of Norwich and its police department requested and were granted intervenor status.
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 filed with this Commission on January 27, 1993, the complainants alleged that the respondent violated the provisions of the Freedom of Information ("FOI") Act by refusing to release transcripts of testimony taken in 1965 by the Norwich City Council ("NCC") during an investigation into the administration of the Norwich Police Department ("NPD").
3. It is found that by letter dated December 7, 1992, the complainants requested of the respondent access to the transcripts of testimony taken by a special committee of the NCC authorized to investigate the official conduct of the NPD (state library record group 62, item 71).
4. It is found that by letter dated January 21, 1993, the respondent denied the complainants' request.
5. It is found that the transcripts at issue are public records within the meaning of 1-18a(d), G.S.
6. At the hearing into this matter, Richard Abele and James McGowen appeared to testify on their own respective behalves; they are the only current NPD employees who testified before the NCC committee in 1965 and are neither deceased nor retired. Richard Abele and James McGowen are herein granted party status.
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7. It is found that at a meeting on March 7, 1966, the NCC adopted a resolution that the transcripts at issue should be held by the city clerk until December 7, 1971, at which time they should be destroyed.
8. It is found that when approval for destruction was sought of public records administrator Rockwell Potter, Mr. Potter and the state archivist determined the transcripts had historical value and should not be destroyed but should in fact be permanently retained.
9. It is also found that by letter dated November 7, 1972, Mr. Potter suggested to the city clerk that should retention of the transcripts cause a space problem in her office, an alternative arrangement was available. The transcripts could be transferred to the state library and under certain circumstances placed under seal pursuant to statutory authority in effect at that time, which was prior to the enactment of the FOI Act (i.e. 1-20, G.S., repealed in 1975, P.A. 75-342 17).
10. This Commission notes that the statutory provision, 1-20, G.S., as relied upon by the respondent and identified in paragraph 9, above, also provided for a privileged appeal of any attendant denial.
11. It is found that the city clerk and the public records administrator entered a written agreement on April 5, 1973 that essentially provided that the respondent would retain the subject transcripts and that it would also withhold them from public disclosure for a period of fifty years.
12. The respondent claims that the agreement identified in paragraph 11, above, served to prospectively prohibit this (yet to be created) Commission from ordering disclosure of the transcripts prior to the conclusion of the fifty year period on April 5, 2023.
13. Section 1-19(a), G.S., provides in pertinent part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours.... (emphasis added).
14. It is concluded that the agreement identified in paragraph 11, above, does not fall within the "except as otherwise provided" language of 1-19(a), G.S.
15. It is accordingly concluded that the respondent's argument outlined in paragraph 12, above, does not exempt the
Docket #FIC 93-23 Page 3
transcripts from disclosure under the facts of this case.
16. The respondent also argues that the agreement identified in paragraph 11, above, should be upheld because the U.S. Constitution prohibits the legislative enactment of "ex post facto" laws, to which the respondent compares the FOI Act.
17. This Commission finds the respondent's argument identified in paragraph 16, above, unpersuasive, as the FOI Act is not a criminal statute to which the prohibition against ex post facto laws refer.
18. The respondent further argues that based upon the constitutional prohibition against legislation impairing the obligation of contracts ("the contract clause"), this Commission is duty-bound to honor the agreement outlined in paragraph 11, above, over the provisions of the FOI Act.
19. This Commission notes that the record contains no evidence to indicate that either the city clerk or respondent would be prejudiced by an order of disclosure of the transcripts. Furthermore, at no time has either party had any financial obligation under the subject agreement. This Commission also notes that legislation reasonable and necessary to serve important public interests may pass constitutional muster.
20. It is accordingly concluded that the respondent has failed to establish that: a) the contract clause applies under the facts of this case, or b) prior to passage of the FOI Act, public agencies could have contracted to be, in effect, exempt from the provisions thereof.
21. The respondent argues that the transcripts at issue are exempt from disclosure pursuant to 1-19(b)(2), G.S.
22. It is found that approximately fifty-four individuals were called to testify before the NCC and were questioned about a range of topics concerning the NPD including: on and off-duty conduct of Norwich police officers, the administration of the NPD, the handling of police benevolent funds, whether there was improper use of firearms and keys to public buildings, and whether NPD instruction/training manuals were up-to-date.
23. It is also found that the state's attorney's office took the position that the proper investigatory agent was the city of Norwich and not its own office due to the administrative nature of the problems then allegedly plaguing the NPD.
24. It is concluded that the transcripts at issue are similar in content to police department internal investigation files.
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25. It is concluded that the transcripts at issue are not personnel or medical files and similar files within the meaning of 1-19(b)(2), G.S.
26. It is also found that witnesses whose testimony was taken later relayed to various other similar witnesses the contents of their closed-door sessions.
27. It is also concluded that even if the subject transcripts were personnel or medical files, disclosure of those portions of the transcripts relating solely to the operations of the NPD (as opposed to the private affairs of personally identifiable individuals) would not constitute an invasion of personal privacy within the meaning of 1-19(b)(2), G.S.
28. It is concluded that the respondent violated the provisions of 1-19(a), G.S., by denying the complainants access to the requested records under the facts of this case.
29. At the hearing into this matter, the complainants emphasized that they are not interested in any information concerning the private affairs of individuals that may be contained in the subject transcripts. They accordingly seek disclosure only of data concerning the operations of the NPD contained in the subject transcripts.
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 permit the complainants to access the transcripts at issue. Compliance with this order shall occur no later than sixty days from the mailing of the final decision in this case.
2. In so complying with the order in paragraph 1, above, the respondent may redact all references to the private affairs of personally identifiable individuals including references to their marital status, religion, family members and personal financial matters including any matter that does not relate to the operations of the NPD.
3. Due to the unique circumstances of this case and the compelling testimony of Mssrs. Abele and McGowen, this Commission declines to order disclosure of the content of the testimony of Mssrs. Abele and McGowen. Such testimony may be redacted prior to disclosure as ordered in paragraph 1 of the order, above.
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Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 1993.
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:
Ms. Maria T. Hileman
New London, CT 06320
STATE OF CONNECTICUT, CONNECTICUT STATE LIBRARY
c/o Ralph E. Urban, Esq.
110 Sherman Street
Hartford, CT 06105
Acting Clerk of the Commission