FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Josh Kovner and
The Hartford Courant,
Complainants
against Docket #FIC 1999-173
Office of the Chief State’s Attorney, State
of Connecticut, Division of Criminal Justice,
Administration, Personnel and Finance,
Respondent September 8, 1999

        The above-captioned matter was heard as a contested case on May 26, 1999, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At the hearing on this matter, Anthony Martin requested and was granted intervenor status.

        After consideration of the entire record, the following facts are found and conclusions of law are reached:

        1. The respondent is a public agency with respect to its administrative functions within the meaning of 1-200(1), G.S. [formerly 1-18a(a), G.S.] and 1-201 [formerly 1-19c, G.S.].

        2. By letter dated April 5, 1999, the complainants made a request to the respondent for a copy of the personnel file of Assistant State’s Attorney Anthony T. Martin. The complainants indicated that medical information could be withheld and that the social security number could be redacted from the records.

        3. By letter dated April 7, 1999, the respondent responded to the complainants’ request indicating that because Mr. Martin objected to the disclosure of his personnel file, their request was denied.

        4. By letter dated and filed on April 12, 1999, the complainants appealed to this Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying their request for a copy of Mr. Martin’s personnel file.

        5. Section 1-210(a), G.S. [formerly 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 section 1-212. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.

        6. Section 1-212(a), G.S. [formerly 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."

        7. It is found that the requested records relate to the administrative functions of the respondent and therefore are public records within the meaning of 1-210(a), G.S. [formerly 1-19(a), G.S.].

        8. It is found that Mr. Martin has been arrested and charged with a crime and the Office of the Chief State’s Attorney is prosecuting him.

        9. At the hearing on this matter, the respondent and Mr. Martin argued that because the respondent is prosecuting Mr. Martin, the respondent is prohibited from disclosing the requested records because Rules 3.6 and 3.8 of the Rules of Professional Conduct (1999) prohibit the respondent, in its capacity as prosecutor, from doing anything which would contribute to a hostile atmosphere or create any pretrial publicity.

        10. Rule 3.6 of the Rules of Professional Conduct (1999) provide that:

A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

A statement referred to in subsection (a) ordinarily is likely to have such an effect when it refers to a civil matter triable by a jury, a criminal matter, or any other proceeding that could result in incarceration, and that statement relates to: . . .(5) Information the lawyer knows or reasonably knows is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial.

(emphasis added)

        11. Rule 3.8 of the Rules of Professional Conduct (1999) provides at subsection 5 that:

[t]he prosecutor in a criminal case shall . . exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6."

        12. It is found that nothing in Rules 3.6 and 3.8 of the Rules of Professional Conduct (1999) exempt or prohibit the disclosure of otherwise public records.

        13. In this regard, it is also found that subsection (c) of Rule 3.6 provides in relevant part that:

[n]otwithstanding subsections (a) and (b) (1)-(5) [of Rule 3.6], a lawyer involved in the investigation or litigation of a matter may state without elaboration . . . the information contained in a public record . . . .

(emphasis added)

        14. It is further found that the respondent and the intervenor failed to claim or prove that any exemption in the FOI Act applied to the requested records or that any other federal law or state statute prohibited disclosure of the requested records.

        15. It is concluded therefore that the respondent violated the provisions of 1-210(a) and 1-212(a), G.S. [formerly 1-19(a) and 1-15(a), G.S., respectively] when it failed to provide the complainants with a copy of Mr. Martin’s personnel file.

 

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

        1. The respondent shall forthwith provide the complainants with a copy of the entire personnel file of Assistant State’s Attorney Anthony T. Martin, free of charge, excluding medical records, social security numbers, and the addresses of the Assistant States’ Attorneys and their families.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of
September 8, 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:

 

Josh Kovner and The Hartford Courant
285 Broad Street
Hartford, CT 06115
Office of the Chief State’s Attorney, State of Connecticut, Division of Criminal Justice,
Administration, Personnel and Finance
c/o Atty. Judith Rossi
Executive Assistant State’s Attorney
Office of the Chief State’s Attorney
300 Corporate Place
Rocky Hill, CT 06067
Anthony Martin
c/o Atty. Hope C. Seeley
Santos & Seeley PC
51 Russ Street
Hartford, CT 06106-1566

 

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

FIC1999-173FD/mrb/09141999