FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Tom Misczuk and Fox 61 News,
Complainants
against Docket #FIC 1998-326
Chief, Police Department, City of
New Haven; and Police Department,
City of New Haven,
Respondents February 24, 1999

        The above-captioned matter was heard as a contested case on December 16, 1998, at which time the complainants 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 1-18a(1), G.S.

        2. By letter dated October 8, 1998, the complainants submitted a formal Freedom of Information ("FOI") Act request to the respondent department requesting an opportunity to listen to and record the audio tape recordings of all broadcasts concerning the police pursuit of Darryl Belton on October 6, 1998, and the bus accident which took place during such pursuit as well as copies of the accident reports connected to both incidents. The complainants also requested an opportunity to review all records regarding both incidents.

        3. By letter dated October 14, 1998, the respondent chief denied the complainants’ requests claiming that the records and tape recordings were not releasable under the FOI Act because the case involving Mr. Belton was pending adjudication.

        4. By letter dated October 19, 1998, and filed with this Commission on the same date, the complainants appealed the respondent chief’s denial of their request.

        5. Section 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 the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provision of section1-15.

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

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

        7. It is found that the requested records are public records as defined in 1-18a(5) and 1-19(a), G.S.

        8. At the hearing on this matter, the respondents asserted that the requested records were exempt pursuant to 1-19(b)(3)(C), G.S., which provides that

Nothing in the [FOI] Act shall 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 crime, if 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 . . .

        9. It is found that the respondents failed to make any evidentiary showing that the records are to be used in a prospective law enforcement action and that the disclosure of the records would be prejudicial to such action.

        10. It is found that the respondents failed to prove the records requested are exempt from disclosure pursuant to 1-19(b)(3)(C), G.S.

        11. At the hearing on this matter, the respondents informed the hearing officer that the audio tapes on which the requested broadcasts were recorded had been erased and have been used again.

        12. It is found that the audio tapes described in paragraph 11, above, were erased on or about November 12, 1998.

        13. The Commission finds it inconceivable that the respondents would fail to ensure the preservation of the audio tape recordings and would allow them to be destroyed after receiving a Freedom of Information request for access to the same.

        14. Notwithstanding the finding in paragraph 12, above, it is concluded that the respondents violated 1-15(a) and 1-19(a), G.S., by failing to promptly provide the complainants with access to and copies of the records more fully described in paragraph 2, above.

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

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

        2. The respondents shall forthwith provide the complainants with copies of the accident reports more fully described in paragraph 2 of the findings, above, free of charge.

        3. The respondents shall forthwith contact the state police to determine whether it has a tape recording of the incident in question and inform the complainants of the result of their inquiry.

        4. The respondents shall forthwith engage at their expense an expert to be selected by the complainants to determine if the broadcasts more fully described in paragraph 2 of the findings above, can be reconstructed and, if so, the respondents shall forthwith provide the complainants with access as requested free of charge. If it is determined that such broadcasts cannot be reconstructed, the respondents shall forthwith provide the complainants with an affidavit attesting to the measures taken to reach such determination.

        5. The respondents shall forthwith post a copy of this final decision in a conspicuous place at the police department and at the town hall for a period of thirty days.

        6. The Commission strongly encourages the respondents to become more familiar with the State’s record retention requirements.

 

 

 

        Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 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:

 

Tom Misczuk and
Fox 61 News
One Corporate Center
Hartford, CT 06103
Chief, Police Department,
City of New Haven; and
Police Department,
City of New Haven
c/o Atty. Thayer Baldwin, Jr.
Office of the Corporation Counsel
165 Church Street
New Haven, CT 06510

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1998-326FD/mrb02261999