FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Andy Thibault,  
  Complainant  
  against   Docket #FIC 2006-389

Chief, Police Department,

City of Waterbury,

 
  Respondent April 11, 2007
       

 

The above-captioned matter was heard as a contested case on September 26, 2006, at which time the complainant 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 letter dated July 28, 2006, the complainant requested that the respondent provide him with a copy of any and all reports “including #04-26782, mentioning Madeleine Gleason and/or Christian Sorensen (the “requested records”).

 

3.   It is found that, by letter dated August 4, 2006 (the “August 4, 2006 letter”), the respondent, through his attorney, stated that no report exists for incident #04-26782, which is the initial missing person report regarding William Smolinski, but provided the complainant with a “computer printout regarding incident report #04-26782.”  The August 4, 2006 letter further stated that any other documents relating to the investigation of William Smolinski’s disappearance are exempt from disclosure pursuant to 1-210(b)(3)(A), 1-210(b)(3)(B), and 1-210(b)(3)(C), G.S.

 

4.  By letter dated August 4, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him copies of the records described in paragraph 2, above. 

 

5.  Section 1-210(a), G.S., provides, in relevant part:

 

[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 section 1-212.

 

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 requested records are public records within the meaning of 1-210(a), G.S.

 

8.  It is found that, on August 27, 2004, the respondent opened an investigation into the disappearance of William Smolinski, Jr.   It is further found that, by letter dated August 4, 2006, the respondent requested the assistance of the Federal Bureau of Investigation (“FBI”) in conducting a joint investigation into the disappearance of Mr. Smolinski.     

 

9.  At the hearing in this matter, the respondent objected to release of all requested records, generally citing 1-210(b)(3), G.S.     

 

10.  Section 1-210(b)(3), G.S., provides, in relevant part, that nothing in the FOI Act shall be construed to require disclosure of:

 

“[r]ecords of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action …”

 

11.  After the hearing in this matter, the respondent submitted the requested records for in-camera inspection, which documents shall be identified herein as IC-2006-389-1 through IC-2006-389-17.  Such documents consist of police reports, witness statements, and handwritten notes.  

 

12.  It is found that the police department of the city of Waterbury is a law enforcement agency within the meaning of 1-210(b)(3), G.S., and that the respondent compiled the requested records in connection with the investigation into the disappearance of Mr. Smolinski.  It is also found that the requested records are not otherwise available to the public. 

 

13.  Upon careful examination of IC-2006-389-1 through IC-2006-389-17, it is found that IC-2006-389-2 and IC-2006-389-10 are signed statements of witnesses within the meaning of 1-210(b)(3)(B), G.S.

 

14.  It is therefore concluded that the records described in paragraph 13, above, are exempt from mandatory disclosure and, further, that the respondent did not violate the disclosure provisions of 1-210(a) and 1-212(a), G.S. by denying the complainant’s request for a copy of such records.

 

15.  In Department of Public Safety v. FOIC, 51 Conn. App. 100, 105 (1998), the  court stated that 1-210(b)(3)(C), G.S., required an evidentiary showing that (1) the records are to be used in a prospective law enforcement action and (2) the disclosure of such records would be prejudicial to such action.  The court further stated that “the statute is not satisfied by the mere good faith assertion that the matter to which the information pertains is potentially criminal ... there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.”

 

16.  It is found that, other than a broad assertion of prejudice, the respondent has failed to prove how any of the requested records, specifically IC-2006-389-1, IC-2006-389-3 through IC-2006-389-9, and IC-2006-389-11 through IC-2006-389-17, would prejudice a prospective law enforcement action if released.

 

17.  Accordingly, it is concluded that the requested records described in paragraph 16, above, are not exempt from mandatory disclosure by virtue of 1-210(b)(3)(C), G.S., and that the respondent violated the FOI Act by denying the complainant copies thereof.

 

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

1.  Forthwith, the respondent shall provide the complainant with a copy of the requested records described in paragraph 16 of the findings, above, at no cost.  

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of April 11, 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:

 

Andy Thibault

PO Box 1415

Litchfield, CT 06759

 

Chief, Police Department,

City of Waterbury

c/o Gary S. Roosa, Esq.

255 East Main Street

Waterbury, CT 06702-2389

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-389FD/paj/4/17/2007