FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Tracy Arthur Marlow,
Complainants
against Docket #FIC 1998-075
Erminia Bianco, Records Division,
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 complainant’s 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 complainant’s “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 complainant’s behavior 
toward his child on January 31, 1998, and the February 5, 1998 narrative report based 
upon the complainant’s 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 
complainant’s 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 
complainant’s 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 
complainant’s 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 
complainant’s 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

 

FIC1998-075/FD/tcg/06121998