FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
against Docket #FIC 95-165
Newington Police Department,
Respondent March 13, 1996
The above-captioned matter was heard as a contested case on November 28, 1995, 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 May 9, 1995, the complainant requested copies of any and all police reports, memoranda, letters and documents pertaining to: (1) a theft at the Lobsterman Restaurant which occurred between May 30, 1993 and June 1, 1993; and (2) a fire which occurred on or about June 27, 1993 at the same location (hereinafter "theft and fire incidents").
3. By letter dated May 12, 1995, the respondent denied the complainant's request citing 1-19(b), G.S., because there was an "ongoing multi-jurisdictional investigation."
4. By letter dated May 17, 1995 and filed May 19, 1995, the complainant appealed to the Commission and alleged that the respondent violated the Freedom of Information ("FOI") Act by denying his request.
5. It is found that the respondent conducted an investigation of the theft and fire incidents, which investigation was suspended but not closed; and that no arrest has been made in connection with either incident as of the date of the hearing on this matter.
Docket #FIC 95-165 Page 2
6. It is found that the respondent maintains a box full of records which are responsive to the complainant's request, including, but not limited to: the initial officer's response report; files of the United States Department of Alcohol, Tobacco and Firearms (hereinafter "ATF"); telephone and banking records; Internal Revenue Service records; reports from the town of Newington and State of Connecticut fire marshalls; depositions; witness statements; and search warrants.
7. It is found that the records described in paragraph 6, above, are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
8. It is found that on June 29, 1995, the respondent informed the complainant's attorneys that copies of the requested records were available pursuant to federal discovery rules.
9. The respondent contends that the records in question are exempt from disclosure under 1-19(b)(3)(A), (B), (C) and (G), G.S., because they contain: (1) identities of informants; (2) signed witness statements; (3) information which might be used in a pending law enforcement action; and (4) uncorroborated allegations that an individual has engaged in criminal activities.
10. Section 1-19(b)(3), G.S., states, in relevant part:
"Nothing in [the FOI Act] shall be construed to require disclosure of ... (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action ... (G) uncorroborated allegations subject to destruction pursuant to section 1-20c."
Docket #FIC 95-165 Page 3
11. Section 1-20c, G.S., states, in relevant part:
"[R]ecords of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records."
12. It is found that the complainant was indicted by a federal grand jury in November 1994 for violation of 18 U.S.C. 894, collection of credit by extortionate means, and that his trial was scheduled to begin in Miami, Florida in the fall of 1995.
13. It is found that the federal prosecution referred to in paragraph 12, above, is a prospective law enforcement action within the meaning of 1-19(b)(3)(C), G.S.
14. It is further found, however, that the respondent failed to prove that the requested records contain information that would be used in the prospective law enforcement action and, in light of the respondent's offer to provide access to the records, how it would be prejudicial to such action.
15. It is concluded therefore that the subject records are not exempt from disclosure pursuant to 1-19(b)(3)(C), G.S.
16. It is found that the records at issue contain signed witness statements, and that such statements are exempt from disclosure under 1-19(b)(3)(B), G.S.
17. It is also found that the respondent failed to prove that the subject records contain the names of any informants or witnesses not otherwise known. Consequently, it is concluded that the subject records are not exempt from disclosure under 1-19(b)(3)(A), G.S.
18. It is found that the respondent failed to prove that the subject records contain uncorroborated allegations that an individual has engaged in criminal activity within the meaning of 1-19(b)(3)(G) and 1-20c, G.S. Consequently, it is concluded that the subject records are not exempt from disclosure under that provision.
19. The respondent also claims that the requested records are exempt from disclosure pursuant to the case of Gifford v. Freedom of Information Commission, 227 Conn. 641 (1993).
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20. It is concluded, however, that since no arrest was made by the respondent with respect to the theft and fire incidents, that the Gifford case does not apply under the facts of this case.
21. It is concluded that by failing to provide the complainant with copies of the requested records, with the exception of signed witness statements, the respondent violated the provisions of 1-15(a), G.S.
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 copies of the requested records, without charge.
2. In complying with paragraph 1 of this order, above, the respondent may redact or exclude signed witness statements.
3. Henceforth, the respondent shall strictly comply with the requirements of 1-15(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 13, 1996.
Elizabeth A. Leifert
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:
c/o Jon L. Schoenhorn, Esq.
97 Oak Street
Hartford, CT 06106-1515
Newington Police Department
c/o Mark S. Shipman, Esq.
Levy & Droney, P.C.
74 Batterson Park Road
Farmington, CT 06032
Elizabeth A. Leifert
Acting Clerk of the Commission