FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Burton M. Weinstein,  
  Complainant  
  against   Docket #FIC 2006-426

Chief, Police Department, City

of Bridgeport,

 
  Respondent July 11, 2007
       

 

The above-captioned matter was heard as a contested case on January 18, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint.  A Report of Hearing Officer, dated May 1, 2007, was tabled by the Commission at its May 23, 2007 regular meeting.

           

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 August 14, 2006, the complainant requested from the respondent:

 

i)                    “[a]ll reports of all police officers filed with the Bridgeport Police Department concerning the incident of August 25, 2005 in which Raylyn George was pursued by police and died of a gunshot wound … from the moment of the incident to date.” 

 

ii)                   “[a]ll documents having to do with suspension, if any, of Officer Batista following the August 20, 2005 gunshot wound which killed Raylyn George and his [Batista’s] reinstatement to duty, if any.  We seek all documents having to do with the suspension and reinstatement.  If he is not reinstated yet, please so indicate.  If Officer Batista is no longer on the police force, please indicate when he ceased to be so employed and the reason he is no longer so employed.  If he is still a police officer, please indicate his rank and duties.”

 

iii)                 “[a]ll standing orders, rules, regulations, protocols, directives, instructions, procedures or requirements, by whatever name known, having to do with what the Department requires, or even recommends be done when police officers discharge their guns in the line of duty toward anyone who shortly thereafter dies of a gunshot wound.  We specifically seek anything having to do with testing officers involved in the incident for gunshot residue.  If there are any prohibitions against washing or otherwise attempting to remove possible gunshot residue from the hands of police officers under those circumstances, please indicate what those prohibitions are.  We also seek any reports of any investigations made to determine if Officer Batista took a shower, washed his hands or otherwise did anything from the time he discharged his weapon on August 25, 2005 until a swab test was taken of his hands.” 

 

(the “ requested records ”).

 

3.  It is found that, by letter dated August 18, 2006, the respondent, through counsel, informed the complainant that his request had been received, and that such request was being reviewed “to determine that all police investigations in this matter have been closed, and that this matter is not pending in either a [c]riminal or [c]ivil [c]ourt.”

 

            4.  Thereafter, by letter of complaint dated August 21, 2006, and filed on August 23, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him a copy of the requested records.

 

5.      Section 1-200(5), G.S., provides, in relevant part:

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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…or (3) receive a copy of such records in accordance with section 1-212.  

 

7.  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” (emphasis added).

 

8.  It is found that the requested records, to the extent they are maintained by the respondent, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

9.  It is found that the Bridgeport Police Department (“BPD”) did not conduct an investigation into the shooting of Raylyn George by a member of the BPD; rather, at the request of the Chief State’s Attorney, such investigation was conducted by the State Police Major Crime Squad (“SPMCS”), in accordance with 51-277a, G.S. 

 

10.  It is found that, after such investigation by the SPMCS was concluded, a Report on the Death of Raylyn George, dated May 11, 2006, was prepared by the Office of the Chief State’s Attorney (the “report”).      

 

11.  It is found that, at the time of the complainant’s request, the respondent did not maintain a copy of the report, but, upon receiving such request, counsel for the respondent obtained the report from the Chief State’s Attorney and forwarded it to the complainant on September 1, 2006.

 

12.  It is found that, after the SPMCS concluded its investigation into the death of Raylyn George, it did not provide any of the records upon which the conclusions contained in the report were based, to the BPD.

 

13.  It is found that, at the hearing in this matter, the respondent contended that, because the BPD did not investigate the shooting of Raylyn George, the BPD did not create, nor maintain, any records responsive to the request described in paragraph 2.i, above, other than the report disclosed to the complainant on September 1, 2006.

 

            14.  However, on February 13, 2007, after the hearing in this matter, the respondent, through counsel, submitted to the Commission a document entitled “Brief/Additional Comments and Information of the Respondent.”  The Commission takes administrative notice of such document.

 

            15.  In the document described in paragraph 14, above, the respondent indicated that records responsive to the request described in paragraph 2.i, above, had been located within the BPD (the “located records”).  The respondent sent, as an attachment to such document, unredacted copies of the located records to the Commission, contending that 1-210(b)(2) and 1-210(b)(3)(A) and (C), G.S., exempted portions of such records from mandatory disclosure.  The Commission notes that such unredacted copies were sent to the Commission via facsimile.

           

16.  By the document described in paragraph 14, above, the respondent informed the Commission that copies of the located records had been forwarded to the complainant with redactions.           

 

17.  By the document and submission described in paragraphs 14 and 15, above, the respondent did not follow the Commission’s procedure for submission of records for in camera review, did not request an in camera review, and did not request that the hearing in this matter be reopened.  See 1-21j-37(f), Regulations of Connecticut State Agencies (in camera regulations).  

 

            18.  It is found that the respondent failed to present any evidence that any portion of the located records is exempt from disclosure under any provision of the FOI Act. 

 

19.  However, the Commission takes administrative notice of its decision in Docket #FIC2006-374, Burton Weinstein v. Commissioner, State of Connecticut, Department of Public Safety (the “DPS case”), in which the Commission found, after in camera review, that certain records, or portions thereof, were exempt from mandatory disclosure under 1-210(a)(2), 1-210(b)(3)(A) and 1-210(b)(3)(B), G.S.  The Commission takes further administrative notice of the fact that some of the records found to be exempt in the DPS case, are identical to the records faxed to the Commission by the respondent in this case.

 

20.  In light of this circumstance, the Commission declines to order the disclosure of the records faxed to the Commission by the respondent in this case, which were found to be exempt in the DPS case (i.e. those portions that would reveal the names or identities of informants or witnesses), as follows:   IC2006-374-195 (lines 9 and 10 only), IC2006-374-196 (lines 8 and 9 only), IC2006-374-23, IC2006-374-170 through 178, IC 2006-374-187 (lines 16 and 22 through 26), IC2005-374-192 and 193.

21.  However, it is found that, with respect to the remainder of the records faxed to the Commission by the respondent, it is concluded that the respondent violated the disclosure provisions of 1-210(a) and 1-212(a), G.S., with respect to the request described in paragraph 2.i, above.

 

22.  With respect to the request described in paragraph 2.ii, above, it is found that the respondent, on September 14, 2006 and September 27, 2006, provided the complainant with copies of certain records regarding Officer Batista’s appointments, promotions, demotions and assignments with the BPD.  It is found further that the respondent maintains no other records responsive to the request described in paragraph 2.ii, above.

 

23.  With respect to the request described in paragraph 2.iii, above, it is found that the respondent, on September 27, 2006, provided the complainant with a copy of the guidelines the BPD follows for the submission of gunshot residue evidence to the state Department of Public Safety.  It is found further that the respondent maintains no other records that are responsive to the request described in paragraph 2.iii, above.

 

24.  The Commission has construed the word “promptly,” as used in 1-212(a), G.S., to mean “quickly and without undue delay, taking into account all of the factors presented by a particular request.”  Such factors include:  the volume of the records requested, the amount of personnel time necessary to comply with the request, the agency’s time constraints with respect to its other work; the urgency with which the requestor needs the information contained in such requested records, the importance of such records to such requestor, if ascertainable, and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.  Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982); see also Robert Marchand, v. Board of Education, Glastonbury Public Schools, Docket #FIC 2003-448 (October 13, 2004).

 

25.  It is found that the respondent did not comply “promptly” with any of the complainant’s requests described in paragraph 2, above, within the meaning of 1-212(a), G.S., and consequently, it is concluded that the respondent violated 1-210(a) and 1-212(a), G.S., with respect to the requests described in paragraph 2, above.

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 an unredacted copy of the located records responsive to the request described in paragraph 2.i of the findings, above.  In complying with such order, the respondent may withhold the records described in paragraph 20 of the findings, above.

 

2.  Henceforth, the respondent shall comply with the provisions of 1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 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:

 

Burton M. Weinstein

PO Box 9177

Bridgeport, CT 06601

and

c/o Tina Sypek D’Amato, Esq.

135 Elm Street

Bridgeport, CT 06604

 

Chief, Police Department, City

of Bridgeport

c/o Melanie J. Howlett, Esq.

Office of the City Attorney

999 Broad Street

Bridgeport, CT 06604

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-426FD/paj/7/20/2007