FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Tracy Arthur Marlow,|
|against||Docket #FIC 1998-075|
|Erminia Bianco, Records
New Canaan Police Department, Town of New Canaan;
Records Division, New Canaan Police Department,
Town of New Canaan,
|Respondents||June 10, 1998|
The above-captioned matter was heard as a contested case on April 23, 1998, at which time the complainant and the respondents appeared, 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 respondents are public agencies within the meaning of §1-18a(a), G.S.
2. By oral request to respondent Bianco on February 26, 1998, the complainant requested copies of some incident report or reports concerning the recent alleged incident or the incident under investigation (the requested records).
3. By oral response of respondent Bianco in conversation with the complainant on February 26, 1998, the respondents declined to disclose the requested records on the ground that the incident was still under investigation.
4. By letter dated March 17, 1998, and filed on March 19, 1998, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information Act by declining on February 26, 1998 to provide him with a copy of the incident report based upon the complainants February 5, 1998 report of an incident on January 31, 1998 at the New Canaan YMCA. The complainant also requested the imposition of a civil penalty.
5. It is found that on April 17, 1998 and April 20, 1998, the respondents provided the complainant with all records in their custody relating to the January 31, 1998 incident at the New Canaan YMCA.
6. It is concluded that, based upon the finding at paragraph 5, above, the only issue remaining, other than those relating to the potential assessment of penalties and fees, is the question of whether the requested records were furnished promptly in accord with §§1-19(a) and 1-15(a), G.S.
7. The respondents contend that, at the time of the February 26, 1998 request, the requested records were exempt from mandatory disclosure as the record of a law enforcement agency subject to various subsections of §1-19(b)(3), G.S., including subsection (A) which protects the identity of informants or witnesses, subsection (B) which protects the signed statements of witnesses, subsection (C) which protects information to be used in a prospective law enforcement action if prejudicial to such action, and subsection (D) which protects investigatory techniques not otherwise known to the general public. The respondents also requested at the hearing that, as a result of the complainants frivolous actions, the costs incurred by the respondents in connection with this matter should be assessed against the complainant.
8. Section 1-19(b) (3), G.S., provides in pertinent part that various records shall be exempt from mandatory disclosure, including:
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, (D) investigatory techniques not otherwise known to the general public
9. It is found that the respondents had custody of two different incident reports relating to the January 31, 1998 incident, as a result of cross-complaints relating to the same series of events. These included a witness statement of the complainants behavior toward his child on January 31, 1998, and the February 5, 1998 narrative report based upon the complainants statement to the New Canaan Police Department concerning the actions of the witness (the Department).
10. It is also found that the existence of cross-complaints relating to the January 31, 1998 incident suggested the possibility for threats to and intimidation of witnesses relating to a prospective law enforcement of the Department.
11. It is found that there was conflicting evidence concerning the scope of the complainants oral request to respondent Bianco on February 26, 1998, the complainant testifying that he requested only the February 5, 1998 narrative report discussed at paragraph 9, above, while the respondents maintain that the complainant requested all incident reports relating to the January 31, 1998 incident. It is, however, found that the complainants separate letter request of the same date as the oral request (February 26, 1998), addressed to the chief of the Department, requested that the complainant be provided all incident reports, arrest reports, investigation reports, and all other written records relating to the recent alleged incident when the police investigation was no longer active (emphasis added).
12. It is found that the Department responded on March 3, 1998 to the complainants letter request of February 26, 1998, indicating in part that the requested records would be made available to the complainant if the investigation is closed without an arrest being made. It is also found that the Department responded again on March 24, 1998, stating that prosecution was declined and the case is now closed and that the requested records could be received by contacting the respondent records division.
13. It is further found that no arrest was made relating to the January 31, 1998 incident and that the requested records were not otherwise available to the public.
14. And finally, it is found that until March 24, 1998 an investigation of a prospective law enforcement action relating to the January 31, 1998 incident was ongoing, and that, in light of the finding at paragraph 10, above, the respondents could reasonably have concluded during the early, pre-arrest stage of a prospective law enforcement action that disclosure of the requested records would have been prejudicial to such prospective law enforcement action.
15. Based upon the first finding at paragraph 13, above, it is concluded that §1- 20b, G.S., concerning records of arrest is not applicable to the present case, and more specifically, that the minimum disclosure requirements of §1-20b, G.S., are not applicable in this case which falls below the threshold of a criminal matter that resulted in an arrest.
16. It is concluded that the respondents are law enforcement agencies for purposes of §1-19(b)(3), G.S.
17. It is also concluded, based upon the finding at paragraph 13, above, that the requested records were not otherwise available to the public, as the term is utilized in §1-19(b)(3), G.S.
18. It is further concluded, based upon the finding at paragraph 14, above, and the conclusion at paragraph 16, above, that the requested records were compiled in connection with the detection or investigation of crime, as the term is utilized in §1- 19(b)(3), G.S.
19. It is also concluded that more latitude should be granted to respondents with reference to a finding of prejudice pursuant to §1-19(b)(3)(C), G.S., during the early pre- arrest stage of a prospective law enforcement action, and that based upon the findings at paragraphs 10 and 14, above, disclosure of the requested records would not have been in the public interest, as the term is utilized in §1-19(b)(3), G.S., because such disclosure could have undermined enforcement of the criminal law.
20. It is therefore concluded that the exemption at §1-19(b)(3)(C), G.S. authorized the respondents to decline to disclose the requested records until March 24, 1998.
21. In light of the findings at paragraphs 10 and 14, above, and the conclusions at paragraphs 19 and 20, above, it is concluded that the Commission does not need to make any finding beyond that found at paragraph 11, above, concerning the scope of the complainants oral request described at paragraph 2, above.
22. In light of the conclusion at paragraph 20, above, it is also concluded that the Commission does not need to consider the respondents claims of exemption pursuant to §§1-19(b)(3)(A),(B), and (D), G.S.
23. It is therefore concluded that, in declining to provide the requested records during the pendency of a prospective law enforcement action, the respondents did not violate the promptness requirements of §§1-19(a) and 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 complaint is hereby dismissed.
2. However, the Commission also declines, in this matter, to consider the request of the respondents, described at paragraph 7, above, for the complainant to be assessed for the respondents costs, which request would have to be considered in any case pursuant to the terms of §1-21i(b)(2), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 10, 1998.
_________________________ 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:
Tracy Arthur Marlow Three West End Avenue Old Greenwich, CT 06870-1640
Erminia Bianco, Records Division, New Canaan Police Department, Town of New Canaan; Records Division, New Canaan Police Department, Town of New Canaan c/o Atty. Elizabeth A. B. Suchy Tierney, Zullo, Flaherty & Murphy, P.C. 134 East Avenue P.O. Box 2028 Norwalk, CT 06852