FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Gary S. Levine,
Complainants
against Docket #FIC 1999-008
Louis Fusaro, Chief, Police Department,
City of Norwich; Robert Bernes, Deputy
Chief, Police Department, City of Norwich;
and Joseph May, Sergeant, Police Department,
City of Norwich,
Respondents July 28, 1999

        The above-captioned matter was heard as a contested case on March 17, 1999 at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-200(1), G.S., (formerly 1-18a(1), G.S.).

        2. It is found that on December 18, 1998, the complainant visited the Norwich Police Department and requested that the respondents provide him with a copy of any and all records concerning case # 98-38202 in their possession.

        3. It is found that the respondents denied the request on December 18, 1998 and again by letter dated December 22, 1998, indicating that case #98-38201 was pending on the criminal docket in the superior court.

        4. Having failed to receive a copy of the requested records the complainant, by letter dated and filed with the Commission on January 5, 1999, alleged that the respondents violated the Freedom of Information Act ("FOI") by denying him a copy of the requested records. The complainant requested that the Commission impose civil penalties upon the respondents.

        5. It is found that the respondents maintain records responsive to the complainant’s request, specifically the respondents maintain an incident report and photographs. It is concluded that such records are public records within the meaning of 1-210(a), G.S., (formerly 1-19(a), G.S.).

        6. Section 1-210(a), G.S., (formerly 1-19(a), G.S.), provides in relevant part that:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have a right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. [Emphasis added.]

        7. It is found that the respondents arrested the complainant for breach of peace and threatening on November 28, 1998.

        8. It is found that at the time of the complainant’s request and the respondents’ denial, there was a case pending in criminal court resulting from the arrest, described in paragraph 7, above.

        9. Section 1-215, G.S., (formerly 1-20b(a), G.S.,) provides:

(a) Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210….[Emphasis added.]

(b) For the purposes of this section, "record of the arrest" means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency: The arrest report, incident report, news release or other similar report of the arrest of a person. [Emphasis added].

        10. It is found that the incident report and photographs at issue constitute data or information other than that set forth in subdivision (1) of subsection (b) of 1-215, G.S., (formerly 1-20b(a), G.S.,), and are therefore, subject to the provisions of subdivision (3) of subsection (b) of section 1-210, G.S., (formerly 1-19(b)(3), G.S.).

        11. Section 1-210(b)(3), G.S., (formerly 1-19(b)(3), G.S.), provides:

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, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof or (G) uncorroborated allegations subject to destruction pursuant to section 1-216.

        12. At the hearing the respondents provided the complainant with the incident report at issue. They did not provide the complainant with the photographs. The respondents contend that they are concerned about the privacy of the victim described in the incident report.

        13. However, besides articulating a general concern for the privacy of the victim named in the incident, the respondents have failed to prove that any federal law or state statute permitted them to withhold a) the incident report and b) the photographs from the complainant.

        14. Consequently, it is concluded that the respondents violated 1-210(a), G.S., (formerly 1-19(a), G.S.), by failing to promptly provide the complainant with a copy of the incident report and photographs.

        15. Regarding the complainant’s request that the fee for copies of records being provided to him be waived based on his claim of indigence, it is found that the respondents’ policy when determining whether an individual is indigent is to have such individual qualified by the city of Norwich, Department of Social Services. The Commission does not find such a policy unreasonable.

        16. The Commission finds that at best the complainant appears to be difficult to deal with, and the attitude of the counsel for the respondents appears to fuel an already tense and volatile situation. This Commission is not a forum for the parties’ posturing and will not tolerate the type of non-cooperative attitudes displayed at the hearing.

        17. No civil penalty is found to be warranted in this case.

        The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

        1. Forthwith, the respondent police chief shall provide the complainant with a copy of the photographs.

        2. Forthwith, the respondent police chief shall provide the complainant with an affidavit attesting to the fact that all of the records responsive to the complainant’s request have been so provided to the complainant.

        3. Henceforth, the respondents shall strictly comply with 1-210(a), G.S., (formerly 1-19(a), G.S.).

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of

July 28, 1999.

 

 

_________________________

Melanie R. Balfour

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:

 

Gary S. Levine
108 Washington Street, Unit 201
Norwich, CT 06360-4327
Louis Fusaro, Chief, Police Department,
City of Norwich; Robert Bernes, Deputy
Chief, Police Department, City of Norwich;
and Joseph May, Sergeant, Police Department,
City of Norwich
c/o Atty. Konstant W. Morell
121 Broadway
Norwich, CT 06360

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-008FD/mrb/08031999