In the Matter of a Complaint by                        FINAL DECISION


Edward A. Peruta,




                against                   Docket #FIC 94-40


Curtis Roggi, Rocky Hill Town Attorney,


                                Respondent                          October 12, 1994


                The above-captioned matter was heard as a contested case on June 7, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This case was consolidated for purposes of hearing with Docket #FIC 94-118, Edward A. Peruta v. Philip Dunn, Chief of Police, Rocky Hill Police Department.


                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 and filed February 9, 1994, the complainant appealed to this Commission alleging that the respondent denied his request on or about February 4, 1994 for access to former Rocky Hill Police Chief Philip Schnabel's (hereinafter "Schnabel") journals that were in his custody and control.  The complainant also requested that the Commission impose a civil penalty upon the respondent.


                3.  At the hearing on this matter, the complainant indicated that he is seeking access to all of the journal entries made by Schnabel during the period when Schnabel was Chief of the Rocky Hill Police Department (hereinafter "journals").


                4.  It is concluded that the requested journals constitute public records within the meaning of 1-18a(d) and 1-19(a), G.S.


Docket #FIC 94-40                                               Page 2


                5.  The Commission takes administrative notice of the case files, records and final decisions in docket #s FIC 92-213, Peruta against Shew, et al. and FIC 93-308, Peruta against Shew, et al. (hereinafter "FIC 93-308").


                6.  It was found in FIC 93-308 that the requested journals were previously in Schnabel's possession and were turned over by him to the respondent sometime prior to the hearing in FIC 93-308 at the request of the town manager following a records request for the covers from the complainant; and that the respondent subsequently placed them in a safety deposit box leased in his name, in violation of 1-19(a), G.S.  The Commission also imposed a civil penalty against the respondent.


                7.  It is found that on or about May 18, 1994, approximately three weeks after the date of the notice of final decision in FIC 93-308 and several months after the complainant's request for access to the journals, the respondent turned the journals over to the Chief of the Rocky Hill Police Department where they have been maintained in the "evidence lockup" until the date of the hearing in this matter.


                8.  It is also found that Schnabel still has in his possession a journal containing information relating to his tenure as Chief of the Rocky Hill Police Department, from May of 1982 through January of 1984, which has yet to be turned over to the respondent or to the Rocky Hill Police Department.


                9.  The respondent has not provided the complainant with access to the requested journals, maintaining that they are exempt from disclosure pursuant to the provisions of 1-19(b)(1) 1-19(b)(2), 1-19(b)(3), 1-19(b)(4), 1-19(b)(9) and 1-19(b)(10), G.S.


                10.  Section 1-19(b)(1), G.S., permits the withholding of:


                "preliminary drafts or notes provided the public agency has determined that the public interest in witholding such documents clearly outweighs the public interest in disclosure."


                11.  Section 1-19(b)(2), G.S., permits the withholding of:


                "personnel or medical files, and similar files the disclosure of which would constitute an invasion of personal privacy."


                12.  Section 1-19(b)(3), G.S., permits the withholding of certain categories of law enforcement records.


Docket #FIC 94-40                                               Page 3


                13.  Section 1-19(b)(4), G.S., permits the withholding of:


                "records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled."


                14.  Section 1-19(b)(9), G.S., permits the withholding of:


                "records, reports, and statements of strategy or negotiations with respect to collective bargaining."


                15.  In relevant part, 1-19(b)(10), G.S., permits the withholding of "...communications privileged by the attorney-client relationship."


                16.  It is found however, despite the respondent's claims concerning the exemptions set forth in paragraphs 10 through 15, above, that as of the date of the hearing in this matter, neither the respondent nor his counsel personally reviewed the subject journals.


                17.  In support of his denial of access to the requested journals, the respondent relied solely upon the testimony of Schnabel who, at the hearing on this matter, conceded that portions of the journals were not exempt from disclosure.  Schnabel further stated that he had no objection to the respondent (or any other counsel for the town of Rocky Hill) conducting a review of the requested journals, redacting those portions falling within the exemptions claimed in paragraph 9, above, and then disclosing the non-exempt portions to the complainant.


                18.  It is found that the respondent, having failed to review the subject journals in a good faith attempt to reasonably assess their disclosability, either personally or through his counsel, failed to prove the applicability of the exemptions claimed in paragraph 9, above.


                19.  It is further found, although the requested journals are now physically located at the Rocky Hill Police Department, they remain in the respondent's custody and subject to his control.


                20.  It is further found that the change of location of the requested journals does not abrogate the respondent's responsibilities under the Freedom of Information Act.


                21.  It is therefore concluded that the respondent violated the disclosure provisions of 1-19(a), G.S., by failing to provide the complainant with access to the requested journals.


Docket #FIC 94-40                                               Page 4


                22.  It is further found that the respondent's violation of the rights conferred by 1-19(a), G.S., particularly in view of the Commission's order in FIC 93-308, was without reasonable grounds.


                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 provide the complainant with access to the requested journals, described in paragraphs 2 and 3, of the findings, above, that are in his custody, subject to his control or which he is entitled to obtain.  This order is limited to disclosure of those journals containing information relating to Schnabel's tenure as the Chief of the Rocky Hill Police Department, from May of 1982 until January 3, 1992, when Schnabel was placed on administrative leave.


                2.  Prior to providing the complainant with the access described in paragraph 1 of the order, above, the respondent shall provide Schnabel an opportunity to review the requested journals and redact only those portions constituting communications privileged by the attorney-client relationship, that were from a client of his, while acting in his capacity as an attorney at law.


                3.  In complying with paragraph 1 of the order, above, the respondent may redact any medical information pertaining to Schnabel and any information that would reveal: the identities of confidential informants, information to be used in a prospective law enforcement action if prejudicial to such action, investigatory techniques not otherwise known to the general public, names and addresses of any victims of sexual assault, uncorroborated allegations subject to destruction pursuant to 1-20c, G.S. and strategy with respect to collective bargaining.


                4.  The Commission imposes a civil penalty against the named respondent in the amount of two hundred dollars ($200.00).  The aforementioned civil penalty shall be remitted to the Commission within thirty days of the date of the mailing of the notice of final decision in this matter.


Approved by Order of the Freedom of Information Commission at its special meeting of October 12, 1994.



                                                Debra L. Rembowski

                                                Clerk of the Commission


Docket #FIC 94-40                                               Page 5






38 Parish Road

Rocky Hill, CT 06067



c/o Michael J. Gustafson, Esq.

Halloran & Sage

225 Asylum Street

Hartford, CT 06103



                                                Debra L. Rembowski

                                                Clerk of the Commission