FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 94-128
Chief of Police, New Haven Police Department,
Respondent April 18, 1995
The above-captioned matter was heard as a contested case on October 27, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. After the hearing, the hearing officer granted the request of David Adams, the subject of one of the personnel files requested by the complainant, to reopen the hearing and to permit him to intervene as a party. A reopened hearing was held on February 27, 1994, at which time the complainant, the respondent, and the intervenor Adams appeared and presented testimony, exhibits and argument on the complaint. Former police officer Douglas L. Dortenzio, who had requested and been sent a notice of the reopened hearing, failed to appear.
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 April 25, 1994, the complainant appealed to the Commission, alleging that his March 26, 1994 request for certain police officers' files had been denied by the respondent on April 4, 1994.
3. It is found that the complainant by letter dated March 26, 1994 requested from the respondent "all file records information" on eleven named New Haven police officers.
4. It is found that the respondent denied the complainant's request by letter dated April 4, 1994, because he believed disclosure of the requested records would constitute an invasion of personal privacy within the meaning of 1-19(b)(2), G.S.
Docket #FIC 94-128 Page 2
5. Section 1-20a(b), G.S., provides in relevant part:
Whenever a public agency receives a request to inspect or copy records contained in any of its employees' personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned. ...
6. Section 1-20a(c), G.S., provides in relevant part:
A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee's collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. ...
7. It is found that the subjects of the requested records are retired.
8. The respondent does not dispute that the subjects of the requested records are "employees" within the meaning of 1-20a, G.S.
9. It is concluded that the subjects of the requested records are entitled to the protection afforded "employees" within the meaning of 1-20a(b) and (c), G.S.
10. It is found that the respondent did not attempt to notify the subjects of the requested files of the complainant's request until October 24, 1994, seven months after the complainant's request, and three days before the first scheduled hearing in this matter.
11. It is further found that the respondent did not receive written objections from the subjects of the requested files until approximately February 27, 1995, after he again contacted them concerning the reopened hearing.
12. It is concluded that the requirement of notice under 1-20a(b), G.S., is triggered by the request from the complainant, not the Commission's notice of hearing.
Docket #FIC 94-128 Page 3
13. It is further concluded that the plain language of 1-20a(c), G.S., requires disclosure of the requested files unless a written objection is received within seven days after the employee receives notice of the request.
14. It is therefore concluded that the respondent violated 1-20a(b) and (c), G.S., by failing to timely notify the subjects of the requested files of the complainant's request, and by failing to disclose the records when it did not timely receive written objections from the subjects of the files.
15. It is found that the complainant in 1981 was arrested for and convicted of breach of peace and interfering with a police officer.
16. It is found that the complainant then sued the arresting officers and other police officers for civil rights violations, claiming that he had been beaten and denied medical care during the arrest and subsequent booking.
17. It is found that the complainant lost his civil rights action after trial in federal court.
18. The complainant maintains that he subsequently discovered evidence of wrongdoing by the officers he had sued, and now seeks to discover what additional evidence of wrongdoing is contained in the officer's files, so as to learn what wrongdoing the police department may have been aware of.
19. The respondent maintains that three of the employees--"E. Koetmere," "Alfred Amendola," and "(Internal Affairs) Odell" either do not exist or cannot be identified as ever having worked for the New Haven Police Department.
20. It is found, however, that Alfred Amendola was one of the two officers who arrested the complainant, and that his existence and previous employment status should not have been difficult for the respondent to ascertain.
21. In light of the findings in paragraph 20, above, the Commission finds less than persuasive the respondent's unsupported argument that he is unable to ascertain whether the other two individuals are or were employees of the New Haven police department.
22. The complainant in turn maintains that the respondent has misread his request in the following respects: (a) his request was for the records of Robert DiTenzio, not Douglas Dortenzio; (b) his request was for the records of Thomas Mullen, not Thomas Muller; (c) his request for the file of "(Internal Affairs) Odell" was for the records of a Sergeant Odell Cohens.
Docket #FIC 94-128 Page 4
23. It is found that, with the exception of Sergeant Odell Cohens, whose name was only clarified by the complainant after the first hearing in this matter, that the complainant's request is clearly for the records concerning the individuals he named (Robert DiTenzio and Thomas Mullen), not for the individuals contacted by the respondent (Douglas Dortenzio and Thomas Muller).
24. It is found that the respondent maintains files concerning the subject employees in at least two locations: in the employee's "personnel file," and in "internal investigation files."
25. It is found that internal investigation files are in the direct custody of the respondent.
26. It is found that each employee's personnel file contains a range of records, including an employment application, background investigation records, pension information, family information, payroll information, advancement and transfer information, letters of commendation, disciplinary actions, and injury reports.
27. It is found that, in the case of internal investigations resulting in disciplinary action, the record of disciplinary action is maintained in the employee's personnel file; and that all other records of internal investigations are kept separately in the internal investigation files.
28. It is concluded that the records contained in the personnel and internal investigation files are public records within the meaning of 1-18a(d) and 1-19(a).
29. The respondent maintains that information contained in the internal investigation files is beyond the scope of the complainant's request, which the respondent argues was restricted to personnel files.
30. It is found, however, that the complainant's request on its face is for "all file records information on the following police officers ...."
31. It is therefore found that information contained in the internal investigation files is within the scope of the complainant's March 26, 1994 request.
32. At the hearings on this matter, the complainant limited his complaint to records of wrongdoing committed by the officers whose records were the subject of his March 26, 1994 request.
33. Also at the hearings on this matter, the respondent objected that its right to a fair hearing was jeopardized by this limitation on the scope of the complainant's request.
Docket #FIC 94-128 Page 5
34. It is found, however, that both the complainant's March 26, 1994 letter of request, and his April 24, 1994 letter of complaint, refer generally to file information concerning the subject employees.
35. It is concluded therefore that the respondent was fairly put on notice that the issue to be heard by the Commission on this matter was his denial of the complainant's request for all file information concerning the subject employees, and that by narrowing the issue to records of wrongdoing, no prejudice has been done to the respondent.
36. The respondent also maintains that disclosure of the requested records would constitute an invasion of personal privacy within the meaning of 1-19(b)(2), G.S.
37. It is concluded that both the "personnel" files and the "internal investigation" files are personnel or similar files within the meaning of 1-19(b)(2).
38. On its own motion, the Commission takes administrative notice of its record and final decision in docket #FIC 93-230, Christine L. Kotrba and The Day against New London Police Department, in which is set forth the extensive line of cases ordering disclosure of internal investigation records.
39. It is found that there is a legitimate public interest in the disclosure of records of police internal investigation records.
40. It is also found that the respondent failed to prove that disclosure of the internal investigation records would be highly offensive to a reasonable person.
41. Is is found that the respondent failed to prove that disclosure would constitute an invasion of personal privacy.
42. It is therefore concluded that the respondent violated 1-15(a) and 1-19(a), G.S., by failing to promptly provide copies of the requested records to the complainant.
43. The intervening party Adams also maintains that disclosure of the requested records concerning him would invade his privacy, arguing that since he is no longer employed by the New Haven Police Department, there is no legitimate public interest in his employment history, and since disclosure could only be for the purpose of harassment, that disclosure would be highly offensive to a reasonable person.
44. It is found that the complainant is not seeking information such as addresses and telephone numbers.
Docket #FIC 94-128 Page 6
45. It is concluded that information relating solely to wrongdoing by the subject employees during their employment as police officers, which is what is sought by the complainant, is of legitimate public interest, and that disclosure of that information would not constitute an invasion of personal privacy.
46. The intervening party also objects to disclosure of complaints or investigations about him because he doesn't know what is in the records, and has no opportunity to challege or rebut the information in them.
47. It is found, however, that the intervening party has the same right of access to the subject records as does the complainant, and that he may challenge or rebut that information in whatever forum it is appropriate for him to do so.
48. The intervening party also objects to disclosure of information about him to the complainant because the complainant already had a right of access to the files during the previous criminal and civil litigation.
49. It is concluded, however, that the complainant's previous right of access under discovery does not affect his current rights under the Freedom of Information Act.
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 to the complainant copies of any records of wrongdoing contained in the files of the officers identified by the complainant in his March 26, 1994 letter of request.
2. In complying with paragraph 1 of this order, the respondent shall diligently search, or cause to be searched, his files for any records concerning the specific officers named by the complainant, except the respondent shall not be obligated to search for records concerning former Sergeant Odell Cohens, who was not adequately identified by the complainant in his letter of request. If the respondent is unable to locate any records whatsoever concerning any named employee, he shall personally execute an affidavit attesting to the steps taken in his search, and explicitly attesting to the fact that the individual was never an employee of the New Haven Police Department, or attesting in detail as to why no records concerning the former employee were retained. If the respondent is unable to locate any records of wrongdoing concerning any named employee, he shall execute affidavit to that effect and attesting to the steps taken in his search.
Docket #FIC 94-128 Page 7
Approved by Order of the Freedom of Information Commission at its special meeting of April 18, 1995.
Debra L. Rembowski
Clerk of the Commission
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:
P.O. Box 7242
New Haven, CT 06519
CHIEF OF POLICE, NEW HAVEN POLICE DEPARTMENT and DAVID ADAMS
c/o Patricia A. Cofrancesco, Esq.
Deputy Corporation Counsel
165 Church Street
New Haven, CT 06510
DOUGLAS L. DORTENZIO
383 Woodward Avenue
New Haven, CT 06512
Debra L. Rembowski
Clerk of the Commission