FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Joan O’Rourke,
Complainants
against Docket #FIC 1998-255
Chief, Police Department, City
of Torrington; and Police
Department, City of Torrington,
Respondents January 27, 1999


        The above-captioned matter was heard as a contested case on November 5, 1998, 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 respondents are public agencies within the meaning of 1-18a(1), G.S.

        2. By letters dated July 22, 1998, and August 17, 1998, the complainant made a written request to the respondent chief for copies of records described as an OPS report, case #96017, and a criminal investigation report, case #98-3862.

        3. By request forms dated August 17, 1998, the complainant made formal Freedom of Information ("FOI") requests for the records described in paragraph 2, above.

        4. By letter dated August 18, 1998, the respondent chief responded to the complainant’s requests and advised her that she would not be given access to the reports requested.

        5. By letter dated August 18, 1998, and filed with this Commission on August 21, 1998, the complainant appealed the respondent chief’s denial of her request for copies of the records more fully described in paragraph 2, above.

        6. It is found that by letter dated October 26, 1998, and received by this Commission on October 27, 1998, the collective bargaining unit of the subject of the requested records more fully described in paragraph 2, above, objected to disclosure of the records.

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

[e]xcept 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 the right to receive a copy of such records in accordance with the provisions of 1-15.

        8. Section 1-15(a), G.S., provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

        9. It is found that the records described in paragraph 2, above, are public records within the meaning of 1-18a(5), G.S.

        10. At the hearing on this matter, the complainant withdrew that portion of her complaint appealing the respondent chief’s denial of her request for a copy of the criminal investigation report, case #98-3862, described in paragraph 2, above.

        11. It is found that the OPS record is a report of an internal investigation initiated by a complaint filed by the complainant to the respondent police department regarding the manner in which one of the respondent’s officers conducted another internal investigation.

        12. At the hearing on this matter, the respondents argued that the OPS record described in paragraph 2, above, was not disclosed because the chief believed that disclosure of the record would be an invasion of the personal privacy of the officer investigated and therefore was exempt from disclosure pursuant to 1-19(b)(2), G.S.

        13. Section 1-19(b)(2), G.S., 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."

        14. 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 a invasion of personal privacy. In determining whether disclosure would constitute and 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.

        15. It is found that the requested records constitute personnel, medical or similar files within the meaning of 1-19(b)(2), G.S.

        16. It is also found that the respondents failed to prove that the requested record does not pertain to a legitimate matter of public concern and failed to prove that the information contained therein is highly offensive to a reasonable person and therefore failed to establish that disclosure of the records would constitute an invasion of personal privacy.

        17. It is also found that the internal investigation report is a matter of legitimate public concern.

        18. It is further found that disclosure of the internal investigation report would not be highly offensive to a reasonable person.

        19. The respondents also claimed an exemption pursuant to 1-19(b)(3)(C) and (G), G.S., which provides that the FOI Act "shall not 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 a crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of (C) information to be used in a prospective law enforcement action if prejudicial to such action . . . or (G) uncorroborated allegations subject to destruction pursuant to section 1-20c . . .".

        20. It is found that the respondent police department initiated two investigations regarding the complaint more fully described in paragraph 11, above; one was a criminal investigation and the other an internal investigation.

        21. It is found that the internal investigation was ordered postponed until the conclusion of the criminal investigation.

        22. It is found that once the criminal investigation was closed the internal investigation resumed as a separate, independent, non-criminal investigation.

        23. It is found therefore that the internal investigation report is not a record that was compiled in connection with the detection or investigation of a crime and that neither exemption found in 1-19(b)(3), G.S., applies.

        24. It is concluded therefore that the respondents violated 1-15(a), and 1-19(a), G.S., by failing to provide the complainant with prompt access to the requested record.

 

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

        1. The respondents shall provide the complainant with a copy of the internal investigation report, more fully described in paragraph 2, of the findings, above, free of charge.

        2. Henceforth the respondents shall strictly comply with the provisions of 1-19(a) and 1-15(a).

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 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:

 

Joan O’Rourke

29 Buttercup Lane

New Hartford, CT 06057

Chief, Police Department,

City of Torrington; and

Police Department, City

of Torrington

c/o Atty. Albert G. Vasko

140 Main Street

Torrington, CT 06790

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-255FD/mrb02011999