FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Luis Salaman,  
  Complainant  
  against   Docket #FIC 2006-329
Francisco Ortiz, Jr., Chief, Police
Department, City of New Haven; and
Bonnie Posick Winchester, Public
Information Officer, Police
Department, City of New Haven,
 
  Respondents April 25, 2007
       

            

The above-captioned matter was heard as a contested case on December 11, 2006, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of CorrectionSee Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al., Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).

 

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

 

1.  The respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.  It is found that by request dated June 7, 2006, renewing earlier requests made in February and April 2006, the complainant sought from the respondents a copy of the following records pertaining to case number 03-44764 (hereinafter “requested records”):

 

a.       “Any and all documents produced by Sergeant Esposito;”

b.      the number of pictures “taken of the shell casings;” and

c.       “a copy of any police report in [the] matter.”

 

3.  It is found that, by correspondence dated February 6 and April 26, 2006, and subsequently thereafter, on June 13, 2006, the respondents informed the complainant that they had received his requests, which were being processed; and that additional research time was needed to comply with such requests.

 

 

 

4.  By letter dated June 20, 2006, and filed with the Commission on June 28, 2006, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his requests for records.  The complainant requested the imposition of a civil penalty against the respondents.

 

5.  At the hearing on December 11, 2006, the respondents stated on the record that they had received the complainant’s requests, but failed to timely reply to such requests due to a mistake in identity between the complainant and another inmate with a similar name, whose records request was made about the time of the complainant’s requests.  Further, the respondents also stated that they had compiled, and were prepared to disclose to the complainant, the requested records, absent several photos they were unable to locate.  The respondents agreed to send the complainant’s counsel copies of the requested records, which the respondents believe are disclosable under the FOI Act and Department of Correction Directives.  The parties then stipulated that only the records claimed exempt by the respondents remain at issue in this appeal.  Consequently, the Commission will only address such records in this decision.

 

6.  At the hearing, the respondents claimed that portions of the requested records were exempt from disclosure pursuant to 1-210(b)(3)(A) and (C), G.S.

 

7.  Following the close of the hearing in this matter, the respondents provided the Commission with copies of the records at issue for in camera review.  The in camera records consist of 39 pages and have been designated as IC page #s 2006-329-1 through 2006-329-39, inclusive.  These records date from 2003 and include various case incident reports, containing completed forms, narratives, and a transcribed interview.  The identities of individuals mentioned in these claimed exempt portions of the requested records were redacted prior to submission for in camera review.

 

8.  Section 1-200(5), G.S., defines “public record” as:

 

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.

 

9.  Section 1-210(a), G.S., in turn, 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.

 

10.  Section 1-212(a), G.S., states in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

11.  It is found that the records sought by the complainant constitute “public records” and must be disclosed to the public in accordance with 1-210(a), G.S., unless otherwise exempt from disclosure.

 

12.  On the in camera index submitted with the requested records for in camera review, the respondents maintained their claim that portions of the requested records were exempt from disclosure pursuant to 1-210(b)(3)(A), G.S.  However, the respondents also claimed that portions of the requested records were exempt from disclosure pursuant to 1-210(b)(3)(B), G.S., as “signed statements of witnesses.”  The respondents did not indicate on the in camera index that portions of the requested records are exempt from disclosure pursuant to 1-210(b)(3)(C), G.S., as described in paragraph 6, above.

 

13.  The respondents contend that in camera records IC# 2006-329-1, 8, 10, 11, 12, 13, 15, 36, 38, and 39, are exempt pursuant to 1-210(b)(3)(A), G.S.  Such provision permits the nondisclosure of:

 

Records 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known.

 

14.  Upon review of the in camera records described in paragraph 13, above, it is found that the respondents failed to prove that the identity of the individuals named therein are not otherwise known or that such individuals’ safety would be endangered if their identities were released within the meaning of 1-210(b)(3)(A), G.S.  Consequently, it is also found that the respondents failed to prove that disclosure of the in camera records would not be in the public interest because it would result in the disclosure of “the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known,” within the meaning of 1-210(b)(3)(A), G.S.

 

15.  With respect to the respondents’ claim that IC# 2006-329-25 through 34 are exempt from disclosure pursuant to 1-210(b)(3)(B), G.S., such provision permits the nondisclosure 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 … signed statements of witnesses.”

 

16.  Upon review of in camera records IC# 2006-329-25 through 34, it is found that the in camera records are records of law enforcement agencies which were compiled in connection with the detection or investigation of crime, within the meaning of 1-210(b)(3)(B), G. S.  It is also found, however, that such in camera records do not constitute signed statements of a witness, within the meaning of 1-210(b)(3)(B), G.S.

 

17.  Consequently, it is concluded that in camera records IC# 2006-329-25 through 34 are not exempt from disclosure within the meaning of 1-210(b)(3)(B), G.S.  Rather, it is found that such records constitute an unsigned transcription of a police department interview.

 

18.  It is found that the index of in camera records does not claim an exemption for IC# 2006-329-2 through 7, 9, 14, 16 through 24, 35, and 37.

 

19.  With respect to the respondents’ claim at the hearing that portions of the requested records are exempt from disclosure pursuant to 1-210(b)(3)(C), G.S., such provision permits the nondisclosure of:

 

Records 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action ….

 

20.  The respondents’ burden of proof under 1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).

 

21.  Upon review of in camera records IC# 2006-329-1 through 39, it is found that the respondents failed to present any specific evidence with respect to the application of this exemption to the requested records.  It is therefore found that the respondents failed to prove that disclosure of the in camera records would not be in the public interest because it would result in the disclosure of “information to be used in a prospective law enforcement action if prejudicial to such action,” within the meaning of 1-210(b)(3)(C), G.S.

 

22.  It is therefore concluded that IC# 2006-329-1 through 39 are not exempt from mandatory disclosure pursuant to 1-210(b)(3)(C), G.S.  Accordingly, it is further concluded that the respondents violated 1-210(a) and 1-212(a), G.S., when they declined to provide copies of IC# 2006-329-1 through 39 to the complainant.

 

23.  Based on the facts and circumstances of this case, the Commission declines to consider the imposition of a civil penalty.

 

 

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

 

            1.  Forthwith, the respondents shall provide the complainant with a copy of in camera records IC# 2006-329-1 through 39.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 25, 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:

 

Luis Salaman, #262626

Osborn Correctional Institution

PO Box 100

Somers, CT 06071

 

Francisco Ortiz, Jr., Chief, Police
Department, City of New Haven; and
Bonnie Posick Winchester, Public
Information Officer, Police
Department, City of New Haven

c/o Kathleen Foster, Esq.

Assistant Corporation Counsel

Office of the Corporation Counsel

165 Church Street, 4th floor

New Haven, CT 06510

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-329FD/paj/4/30/2007