FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Kimberly Lazzari and

Anthony Lazzari,

 
  Complainants  
  against   Docket #FIC 2006-142

Chief, Police Department,

City of Waterbury,

 
  Respondent March 14, 2007
       

 

            The above-captioned matter was heard as a contested case on September 11, 2006, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The respondent submitted the requested records for an in camera inspection.

 

            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.  By letter of complaint filed March 28, 2006, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with their March 14, 2006 request for public records.

 

3.  The respondent, by a motion dated August 10, 2006, objected to the scheduling of a hearing in this matter, on the grounds that the complaint is identical to a complaint made by the complainants in May of 2005.  That motion was denied by the hearing officer, for the reasons set forth below.

 

4.  It is found that the complainants filed an earlier complaint, concerning an earlier request for the same records, that was docketed as FIC 2005-207.  That complaint was dismissed “with prejudice” on November 1, 2005, because the complainants had failed to appear to prosecute their case.

 

5.  The respondent cites Hampson v. Hampson, 250 Conn. L. Rptr. 308, for the following proposition:

 

… where courts have used the term “with prejudice” at any stage of a judicial proceeding, it normally constitutes a final judgment on the merits which bars a later suit on the same cause of action.

 

6.  In Hampson, the court concluded that a plaintiff’s withdrawal with prejudice of a motion to reopen a three-year-old matrimonial judgment on the basis of fraud barred the plaintiff from subsequently moving to reopen the judgment on the same grounds.  The court’s decision in Hampson shows that the court had dissolved the marriage of the parties in 1993 after two years of motions, depositions and extensive discovery.  The plaintiff filed a motion to set aside the judgment on the basis of fraud in 1996, the parties subsequently entered into a stipulated settlement, and the plaintiff then withdrew “with prejudice” the motion to reopen.

 

7.  The court also observed in Hampson v. Hampson:

 

Black’s Law Dictionary (6th Ed. 1990) defines the term “with prejudice” as follows: “Phrase ‘with prejudice,’ … means an adjudication on merits and final disposition, barring right to bring or maintain an action on same claim or cause.  In contrast, the term “without prejudice” is defined as follows: “… a declaration that no rights or privileges of the party concerned are to be considered waived or lost ….”  It can be fairly concluded that “with prejudice” ordinarily is synonymous with adjudication on the merits, barring further litigation on that cause of action.  46 Am.Jur.2d 889-90, Judgments 620 (1994).

 

8.  The Commission takes administrative notice of its records and files in docket #FIC 2005-207, Anthony Lazzari and Kimberly Lazzari v. Chief, Police Department, City of Waterbury, and finds that there was no adjudication by the Commission on the merits of that complaint, since there was no evidentiary hearing and no determination whether the complainants had been denied public records.

 

9.  It is concluded that the Commission’s use of the phrase “with prejudice” in its decision in docket #FIC 2005-207 was not intended to bar the complainants from making another request for the same records at issue in that case and filing another complaint, as is commonly meant by the phrase “with prejudice,” but rather to bar the complainants from re-opening or otherwise obtaining a hearing in docket #FIC 2005-207.

 

10.  For the above reasons, the respondent’s motion to dismiss the complaint is denied.

 

11.   It is found that, by letter dated  March 14, 2006,  the complainants requested from the respondent the following records:

 

a.       “Waterbury Police report – July 16, 2004 ‘Offenses Against Children’ the incident or offense – victim is a juvenile at 520 Wilson Street, Apt. 1 Waterbury CT 06702.  The police report is four pages and the Police Officer is Steve Flanigan.  Method of attack – Fear or Threat;”  and

 

b.      “Waterbury Police report – November 29, 2004 ‘Police Info’ the incident or offense – Officer Saucier and Officer Jarrell escorted us (Kimberly and Anthony) to the Chapman house on 14 Buckingham Street Waterbury, CT to check on Justin because Justin had a big lump bruise between his eyes earlier that day in the Waterbury Juvenile Courthouse.”

 

12.  It is found that the respondent denied the complainants’ request.

 

13.   Section 1-200(5), G.S., provides:

 

   “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

14.   Section 1-210(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 (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.

 

            15.  Section 1-212(a), G.S., provides: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

            16.  The respondent submitted the requested records for an in camera inspection.

 

            17.  It is found that the requested records are records relative to the alleged abuse of a child.

 

            18.  It is concluded that the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

           

19.  The respondent contends that the records are exempt from disclosure pursuant to 17a-101k, G.S.

 

20. Section 17a-101k, G.S., provides:

 

The Commissioner of Children and Families shall maintain a registry of the reports received pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103, and shall adopt regulations to implement the provisions of this section, including the use of the registry on a twenty-four-hour daily basis to prevent or discover abuse of children and the establishment of a hearing process for any appeal by a person of the commissioner's determination that such person is responsible for the abuse or neglect of a child pursuant to subsection (b) of section 17a-101g. The information contained in the reports and any other information relative to child abuse, wherever located, shall be confidential subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations. Any violation of this section or the regulations adopted by the commissioner under this section shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year.

 

21.  The federal Child Abuse Prevention and Treatment Act provides that, in order to receive grants for child abuse and neglect prevention and treatment programs, a state must have in effect a law that includes “methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child’s parents or guardians.”  42 U.S.C. 5106a(b)(2)(A)(v). 

 

22.  The Commission has previously concluded that the confidentiality provisions of 42 U.S.C. 5106a(b)(2)(A)(v) and 17a-101k(a), G.S., are clearly designed to protect the interests of the child.  See Docket #FIC 1998-384, Kathryn P. Sullivan v. Police Department, Town of Groton (Final Decision Upon Remand dated February 9, 2005), reversed, Town of Groton Police Department v. FOIC et al., Docket No. HHB-CV05-4004903-S, Superior Court, J.D. of New Britain, Memorandum of Decision dated January 30, 2006 (Pinkus, J.).

 

23.  The Commission has also previously concluded that the confidentiality provisions of 17a-101k(a), G.S., may be waived by a child’s guardian.  Id.

 

24.  However, it is found that in this case, the child’s guardian, Kimberly Lazzari, expressly declined to waive the confidentiality provisions of 17a-101k(a), G.S.  Although the guardian sought the records for herself, she did not wish the records to be made public.

 

25.  It is therefore concluded that the requested records are exempt from disclosure pursuant to 17a-101k(a), G.S., and that the respondent did not violate the provisions of 1-210(a) and 1-212(a), G.S., by denying the complainants copies of those records.

 

           

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

 

1.  The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 2007.

 

________________________________

Petrea A. Jones

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:

 

Kimberly Lazzari and

Anthony Lazzari

87 High Street, 3rd floor

Naugatuck, CT 06770

 

Chief, Police Department,

City of Waterbury

c/o Gary S. Roosa, Esq.

Police Department,
City of Waterbury

255 East Main Street

Waterbury, CT 06702-2389

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-142FD/paj/3/19/2007