FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
 Lawrence Cook and Journal Inquirer,
  Complainant  
  against Docket #FIC 2003-289

State of Connecticut,

Department of Public Safety,

Division of State Police,

 
  Respondent May 26, 2004
       

 

The above-captioned matter was heard as a contested case on February 17, 2004, at which time the complainants 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  It is found that during a period of several weeks subsequent to May 8, 2003, the complainants made several oral requests for a copy of an internal investigation report (hereinafter “requested record” or sometimes “the record”) concerning a constable for the Town of Ellington, Michael Nieliwocki (hereinafter “Nieliwocki”).

 

            3.  The complainants alleged that the record described in paragraph 2, above, was complete on May 8, 2003.

 

            4.  It is found that on June 25, 2003, the complainants were told by the respondent’s representative, State Police Sergeant J. Paul Vance, that release of the requested record was delayed because it was very involved and several people must scrutinize it.

 

            5.  It is found that by letter dated July 14, 2003, the complainants requested that the respondent provide them with access to the requested record. 

 

            6.  It is also found that by letter dated July 14, 2003, the respondent denied the complainants’ request by stating:

 

In response to your July 14, 2003 letter seeking access to an internal affairs investigation concerning a Michael Nieliwocki, please be advised that investigation is still pending at this time and is being referred to his employing authority, the Town of Ellington, for further action.  We therefore suggest that your request be redirected to the Town of Ellington.

 

            7.  It is found that by letter dated July 28, 2003, the complainants sought a copy of the record from the First Selectman, Town of Ellington. 

 

8.  By letter dated and filed on August 14, 2003, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying the complainants access to the record described in paragraph 5, above.

 

            9.  It is further found that on September 3, 2004, the complainants were provided an opportunity to review a redacted copy of the record in the Town of Ellington’s First Selectmen’s office.

 

10.  At the hearing on this matter, the complainants narrowed the issue to one of promptness due to the fact that they were eventually allowed to see a redacted copy of the record.

 

11.  It is found that on February 13, 2003, at the request of the Town of Ellington, the respondent initiated an internal affairs investigation of certain alleged acts engaged in by Nieliwocki on February 8-9, 2002, utilizing a charge of inappropriate behavior and conduct unbecoming an officer. 

 

12.  It is found that the internal affairs investigation described in paragraph 2, above, also included a criminal investigation conducted by the Town of Vernon pursuant to a request by the Town of Ellington.

 

13.  It is also found that the record described in paragraph 2, above, concluded that Nieliwocki engaged in sexual behavior with a person with whom he came in contact with in the course of his duties.  The criminal investigation concluded that Nieliwocki was not guilty of any criminal wrongdoing.

 

14.  With respect to the complainants’ allegation described in paragraph 8, above, 1-210(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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with 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. 

 

15.  Section 1-212(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 . . . .”

 

16.  It is found that the requested record is a public record within the meaning of 1-210(a), G.S.

 

            17.  It is found that the respondent failed to prove that any exemption applies to the requested records.

 

18.  It is found that it was necessary for the record to be reviewed by a number of people within the respondent’s agency before its release to ensure its accuracy and determine if any exemption applied.

 

19.  It is concluded that the word “promptly” in 1-210, G.S., means “quickly and without undue delay, taking into account all of the factors presented by a particular request . . . [including] the volume of statements requested; the amount of personnel time necessary to comply with the request; the time by which the requester needs the information contained in the statements; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without loss of the personnel time involved in complying with the request.”  FOI Commission Advisory Opinion #51, January 11, 1982. 

 

20.  It is found that the respondent conducted a good faith investigation that included a review by many individuals to ensure its accuracy and determine if any exemption applied.

 

            21.  It is further found that the provision of the record described in paragraph 2, above, was, under the circumstances, prompt within the meaning of 1-210(2), above, G.S.

 

22.  It is concluded, therefore, that the respondent did not violate 1-210(a) and 1-212(a), G.S. with respect to the provision of the record.

 

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.  The Commission notes that the respondent had no legitimate reason to refer the complainants to the Town of Ellington to obtain the record.  The Commission, therefore, admonishes the respondent for doing so. 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 2004.

 

 

___________________________________

Dolores E. Tarnowski

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:

 

Lawrence Cook and Journal Inquirer,

306 Progress Drive, P.O. Box 510

Manchester, CT  06045-0510

 

State of Connecticut,

Department of Public Safety,

Division of State Police

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

FIC/2003-289/FD/mes/06/02/2004