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 2006-469

Chief, Police Department, City

of New Haven,

 
  Respondent March 28, 2007
       

 

The above-captioned matter was heard as a contested case on December 20, 2006, 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, by email to counsel for the respondent, dated August 28, 2006, the complainants requested a copy of a tape recorded interview of the complainants’ son, conducted jointly by representatives from the New Haven Police Department (“NHPD”), the Department of Children and Families (“DCF”), and the Child Sex Abuse Clinic in New Haven (hereinafter “requested record”).  The complainants also allege they were denied a copy of the transcript of the taped interview.  However, it is found that the complainants did not request the transcript from the respondent prior to filing the complaint.  Accordingly, such allegation shall not be further addressed herein.    

 

3.  It is found that, by email dated August 29, 2006, counsel for the respondent replied that the complainants’ request had been forwarded to the NHPD, and that she would be in touch later in the week.

 

4.  Having failed to receive the requested records, the complainants, by letter dated September 12, 2006, and filed on September 13, 2006, appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying them a copy of the requested record. 

 

5.   Section 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 … 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 ….”

 

6.  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.”

 

7.   It is found that the respondent maintains the requested record and that such record is a public record within the meaning of 1-210(a), G.S.

 

8.  The respondent asserts that the requested record is not subject to disclosure under the FOI Act based on 54-142a(c), 1-210(b)(3)(F), and 54-86e, G.S.

 

9.      Section 54-142a(c), G.S., provides in relevant part:

 

Whenever any charge in a criminal case has been nolled in the Superior Court … if at least thirteen months have elapsed since such nolle, all police and court records and records of any state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased  …. [Emphasis added.]

 

10.  Section 54-142a(e), G.S., further provides in relevant part:

 

… any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record … information pertaining to any charge erased under any provision of this section ….

 

11.  It is found that the requested record relates to the alleged sexual abuse of the complainants’ son, for which an individual was arrested.  It is also found that the charges against such individual were nolled by the court in September, 2004.

 

12.  It is found that the requested record is a “police record … pertaining to such charge” within the meaning of 54-142a(c), G.S. 

 

13.  It is found that the complainants are not the “subject of the record” they are seeking, within the meaning of 54-142a(e), G.S.  

 

14.  It is found that, as of the date of the complainants’ request (August 28, 2006), at least thirteen months had elapsed since the charges at issue were nolled, within the meaning of 54-142a(c), G.S.  Consequently, it is concluded that the requested record is “erased” within the meaning of 54-142a(c), G.S., and is therefore exempt from disclosure under the FOI Act.

 

15.  Based upon the foregoing, it is unnecessary to address the respondent’s other claims of exemption.

           

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 law permits certain parties, under certain circumstances, to petition the court for access to erased records. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 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

PO Box 451

Naugatuck, CT 06770

 

Chief, Police Department, City

of New Haven

c/o Kathleen M. Foster, Esq.

Assistant Corporation Counsel

165 Church Street

New Haven, CT 06510

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-469FD/paj/4/5/2007