FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1997-238
October 29, 1997

In the Matter of a Complaint by Kimberley A. Thomsen and the Republican-American, Complainants
against
Acting Superintendent, Waterbury Police Department, Respondent

The above-captioned matter was heard as a contested case on October 6, 1997, at which time the complainants and the respondent appeared, and presented testimony, exhibits and argument on the complaint. David B. Gilmore, who has filed a separate complaint concerning many of the same issues, was granted intervenor status in this matter.

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 letters dated July 8 and August 19, 1997, the complainants requested that the respondent provide them with copies of:

a. the police communications tape and/or back-up tape for the week that included June 24, 1997, which tape was believed to include all 911 calls, call-backs and police radio communications for the relevant period (the "master tape");

b. "the personal tape made by Capt. Joseph Cass on June 24, 1997 at the police department", which tape is a copy of a portion of the master tape and is evidence in an internal affairs investigation at the respondent’s department (the "Cass tape");

c. all records, reports, memorandums, letters and other evidence related to the internal affairs investigation, which concerns the police response to a 911 hang-up call made on June 24, 1997 from 157 Southwind Road, Waterbury, and the erasure of the master tape (all relevant records of said internal affairs investigation, except for the master tape and the Cass tape, being hereinafter referred to as the "internal affairs records");

d. "any and all internal communication between the Waterbury Police Department and the city’s Corporation Counsel’s office and/or Mayor Philip A. Giordano’s office and/or any other city department which concerns any aspect of the June 24 911 hang-up call and ensuing events";

e. a list of names and assignments for police personnel, including civilians and sworn officers, on duty on June 24 and 25, 1997;

f. a list of times and dates of all 911 calls made from 157 Southwind Road, Waterbury, in 1997; and

g. any records concerning the Teac-CR 400 series communications recorder.

3. By letter dated August 22, 1997, the respondent agreed to provide the records described at subparagraphs 2e and 2g, above, but declined to furnish all of the other records requested (the "requested records") based upon various grounds including a pending court order, a claim that the Cass tape is not a public record, a claim that the requested records are "preliminary drafts and notes" pursuant to 1-19(b)(1), G.S., a claim that disclosure of the requested records would constitute an invasion of personal privacy pursuant to 1-19(b)(2), G.S., a claim that the requested records are exempt records of law enforcement agencies pursuant to 1-19(b)(3), G.S., and a claim that the requested records are subject to attorney-client privilege pursuant to 1-19(b)(10), G.S.

4. By letter dated September 16, 1997, and filed on September 17, 1997, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by declining in its letter of August 22, 1997 to furnish several of the records requested by the complainants’ letter of August 19, 1997.

5. At the hearing, the complainants focused, with reference to their request for the master tape described at subparagraph 2a, above, on that portion of the master tape which contained the 911 hang-up call and any related recordings made from Southwind Road, Waterbury on June 24, 1997, and not on the complete master tape for the entire week of June 24, 1997.

6. It is found that the records described at subparagraph 2g, above, were furnished to the complainants at the hearing, and the records described at subparagraph 2e, above, were, by agreement of the parties, to be furnished to the complainants following the hearing.

7. It is found that the list described at subparagraph 2f, above, does not exist and that nothing in the FOI Act requires a public agency to create records not in existence.

8. At the hearing, the hearing officer ordered an in camera inspection of the Cass tape and the internal affairs records. The hearing officer issued such order in writing on October 7, 1997. On October 9, 1997, the respondent requested that the full Commission issue an advisory opinion/declaratory ruling concerning the applicability of the hearing officer’s order and a stay of all proceedings until the Commission issues such an advisory opinion/declaratory ruling. The Commission held a special meeting to consider respondent’s request on October 15, 1997. At such meeting, the Commission voted not to waive its regulations regarding in camera inspection, to ratify the hearing officer’s order of October 7, 1997, to grant the request for an advisory opinion/declaratory ruling and to deny a stay of the proceedings. On October 16, 1997, the respondent petitioned the superior court for an injunction staying the proceedings and the hearing officer’s order, which injunction the court declined to issue at an October 17, 1997 hearing. Following said hearing, the respondent filed the Cass tape and the internal affairs records with the Commission for in camera inspection as ordered.

9. It is found that the master tape has been erased. The master tape remains in the custody of the respondent, and as a result of litigation in an otherwise unrelated matter concerning another portion of the master tape, the master tape is still subject to a court order which requires the respondent "to take all reasonable steps to preserve" it. There is a possibility that the master tape can be restored through technical means available to a consultant retained by the respondent.

10. It is found that Capt. Cass did make a copy of a portion of the master tape, and that the court order referenced at paragraph 9, above, is not applicable to the Cass tape.

11. It is found that the 911 telephone number is used by the public for a wide range of telephone calls, both emergency and routine, and that only about one quarter of the calls received by the respondent on the 911 telephone number are in connection with the detection or investigation of crime.

12. It is found that the internal affairs investigation in question is an administrative investigation and is not intended for the investigation or detection of any crime. The respondent presented testimony indicating that the investigation is open, pending completion of the work of the consultant referenced at paragraph 9, above. It is found that the internal affairs investigation is still open and that a report still subject to revision is currently being prepared by Lt. Guerriero (the "Guerriero report").

13. It is found that none of the internal affairs records or the Cass tape contain "uncorroborated allegations of criminal activity", as the term is used in 1-19(b)(3)(G), G.S.

14. It is found that the requested records, including the Cass tape, are public records pursuant to 1-18a(d), G.S. The Cass tape was made by an officer on duty, using equipment belonging to the respondent’s department, and is evidence in the internal affairs investigation at the respondent’s department. Its status as a public record is not altered by the unsubstantiated suggestion that the Cass tape could have been edited, after it was made from the master tape, but before it was taken into evidence in the internal affairs investigation.

15. Based upon the in camera inspection, it is found that the following internal affairs records or portions thereof reveal the contents of the Cass tape: a) numbered record 14; b) the second, third, ninth and tenth full lines of handwriting in the body of the record (not counting the partial lines of the heading) on numbered record 29; and c) the tenth and eleventh full lines of handwriting in the body of the record (not counting the partial lines of the heading) on numbered record 31.

16. Based upon the in camera inspection, it is found that the following records are arrest records of a juvenile in the unrelated matter described at paragraph 9, above: numbered records 23 to 27, inclusive, 42, 49, 50, 51, and 52.

17. Unless the master tape, which is the currently inaudible, is made audible through the available technical means, such master tape is not a record containing information relevant to the complainants’ request.

18. The respondent contends that the requested records are "preliminary drafts or notes" exempt from mandatory disclosure pursuant to 1-19(b)(1), G.S.

19. Section 1-19(b)(1), G.S., states that the FOI Act shall not require mandatory disclosure of:

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

20. Section 1-19(c)(1), G.S., however, provides in pertinent part that:

disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency….

21. It is concluded that records of an open administrative investigation are not protected from disclosure as they would be if they contained "information to be used in a prospective law enforcement action" pursuant to 1-19(b)(3), G.S.

22. Therefore, it is concluded that 1-19(b)(1), G.S., exempts from mandatory disclosure only the Guerriero report, because it alone is subject to revision within the meaning of 1-19(c)(1), G.S. R. E. Van Norstrand v. Freedom of Information Commission, 211 Conn. 339 (1989). The preliminary drafts or notes exemption does not protect from mandatory disclosure the other internal affairs records upon which the Guerriero report will be substantially based, because such records are no longer "subject to revision". A contrary ruling, allowing the other internal affairs records to be exempt pursuant to 1-19(b)(1), G.S., would wrongfully promote a public policy that enabled public agencies to delay disclosure of such completed records merely by keeping open the process of drafting a report based upon the records.

23. The respondent also contends that the requested records are exempt from disclosure pursuant to 1-19(b)(2), G.S., which provides that a public agency need not disclose "personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy".

24. In Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993), the Supreme Court set forth the test for the exemption contained in 1-19(b)(2), G.S. The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that such information is highly offensive to a reasonable person.

25. It is concluded that the requested records are not part of Mayor Giordano’s personnel file.

26. The respondent further contends that disclosure should not be required because Mayor Giordano and Mrs. Giordano have not been accorded their right to participate in the proceedings, based upon the procedures set forth at 1-20a, G.S., for notifying "employees" concerning requests for records that may constitute an "invasion of privacy".

27. It is concluded, however, that Mayor Giordano and Mrs. Giordano are not "employees" of the respondent and, therefore, that the procedures set forth at 1-20a, G.S., are not applicable. Moreover, Mayor Giordano at least is found to have actual knowledge of these proceedings, and indeed, counsel for the respondent stated on the record that Mayor Giordano, in fact, did object to disclosure.

28. It is also concluded that the information contained in the requested records does pertain to legitimate matters of public concern, including the public’s ability to evaluate on a timely basis the actions of the respondent’s department, especially with reference to the circumstances surrounding the erasure of the master tape.

29. It is further concluded that the information contained in the requested records is not highly offensive to a reasonable person in that it details the disposition of public duties by a public agency.

30. Consequently, it is also concluded that the requested records are not exempt from disclosure under 1-19(b)(2), G.S. and are public records subject to mandatory disclosure pursuant to 1-19(a) and 15(a), G.S.

31. The respondent contends that the requested records are "records of law enforcement agencies" exempt from mandatory disclosure pursuant to 1-19(b)(3), G.S. It is concluded, however, based upon the findings of fact at paragraph 11 to 13, above, all of which establish a civil and administrative context for the requested records, that the requested records are not exempt from mandatory disclosure pursuant to 1-19(b)(3), G.S., except that the juvenile arrest records listed at paragraph 16, above, are exempt pursuant to 1-19(b)(3)(E), G.S.

32. The respondent did not pursue its contention that the requested records, presumably including some of the records described at paragraph 2d, above, are exempt from mandatory disclosure based upon the attorney-client privilege set forth at 1-19(b)(10), G.S. Therefore, it is concluded that the respondent failed to prove the applicability of the 1-19(b)(10), G.S., exemption.

33. It is therefore concluded that the respondent violated 1-19(a) and 1-15(a), G.S., by failing to provide the complainant with a copy of the requested records except for: a) the master tape; b) the Guerriero report; c) the list described at subparagraph 2f, above; and d) the juvenile arrest records listed at paragraph 16, above.

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 a copy of the requested records not yet provided to the complainants, except for: a) the master tape; b) the Guerriero report; c) the list described at subparagraph 2f, above; and d) the juvenile arrest records listed at paragraph 16, above.

Approved by Order of the Freedom of Information Commission at its special meeting of October 29, 1997.

_________________________
Doris V. Luetjen
Acting 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:
Kimberly A. Thomsen and The Republican American
c/o Thomas G. Parisot, Esq.
Secor, Cassidy & McPartland, P.C.
41 Church Street
P. O. Box 2818
Waterbury, CT 06723-2818

Acting Superintendent, Waterbury Police Department
c/o Ross M. Chinitz, Esq.
Assistant Corporation Counsel
City of Waterbury
236 Grand Street
Waterbury, CT. 06702

_____________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-238/FD/mes/10301997