OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||SECOND FINAL DECISION|
Daniel Goren and the
|against||Docket #FIC 2007-165|
Carl Nasto, Deputy Corporation
Counsel, Office of the Corporation
Counsel, City of Hartford;
and City of Hartford,
|Respondents||January 14, 2009|
The above-captioned matter was heard as a contested case on October 16, 2007, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This matter was consolidated for hearing with Docket #FIC 2007-226, Daniel Goren and the Hartford Courant v. Carl Nasto, Deputy Corporation Counsel, Office of the Corporation Counsel, City of Hartford.
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 email, dated March 8, 2007, the complainants requested that the respondents “make available/provide copies of … [a]ll subpoenas or requests for information sent to or made with the city within the last month (from Feb. 8 to the present) from any law enforcement agencies” (the requested records).
3. By letter dated March 14, 2007, respondent Nasto informed the complainants that “the [c]ity does not have any non-exempt public records that are responsive to your request.”
4. By letter dated March 19, 2007, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide them with the records described in paragraph 2, above. In their complaint, the complainants seek a civil penalty against the respondents.
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.”
8. It is found that the requested records, to the extent they are maintained by the respondents, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
9. It is found that, upon receipt of the request described in paragraph 2, above, respondent Nasto conducted a search for the requested records, and that such search revealed one record responsive to the request. It is further found that such record consists of a one-page email, dated February 22, 2007, to John Rose, Corporation Counsel for the City of Hartford, from Michael Sullivan, an investigator for the Office of the Chief State’s Attorney (the February 22 email). It is also found that the February 22 email lists twelve “items” sought by Mr. Sullivan, “relative to my investigation.”
10. It is found that, although the respondents produced a copy of the February 22 email at the hearing in this matter, the list identifying the twelve items sought by Mr. Sullivan (the list) was redacted in its entirety. Respondent Nasto contends he is required to withhold the list from the complainants because he believed that the Chief State’s Attorney’s Office was conducting a criminal investigation of “political corruption” in City Hall.
11. Specifically, the respondents claim that the list is exempt from disclosure under §§1-201, 1-210(b)(3)(A), (B), (C), and (G), G.S.
12. Although the respondents offered evidence at the hearing in this matter that they had subpoenaed Mr. Sullivan to appear at such hearing, it is found that neither Mr. Sullivan, nor any other representative of the Chief State’s Attorney’s Office appeared at the hearing.
13. With respect to the §1-210, G.S., claim of exemption, that provision states that “[f]or the purposes of section 1-200, the Division of Criminal Justice shall not be deemed to be a public agency except in respect to its administrative functions.”
14. It is found that the Chief State’s Attorney’s Office is an office within the Division of Criminal Justice. However, it is also found that the list is not a record of the Division of Criminal Justice, but rather, is a record received and maintained by the respondents. It is further found that the request for such list was made to the respondents and not to the Division of Criminal Justice. It is therefore concluded that §1-210, G.S., does not provide a basis upon which to withhold the list from the complainants.
15. With respect to the §1-210(b)(3), G.S., claim of exemption, that provision states, in relevant part:
Nothing in the Freedom of Information Act shall be construed to require disclosure 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 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, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action… (G) uncorroborated allegations subject to destruction pursuant to section 1-216[.]
16. It is found that the list is not, in the first instance, a record of a law enforcement agency, but rather, as noted in paragraph 14, above, is a record received and maintained by the respondents. Moreover, it is found that the respondents offered no evidence at the hearing in this matter, and therefore failed to prove, that the list was not otherwise available to the public, or that disclosure of the list would not be in the public interest because it would result in the disclosure of the identity of informants or witnesses not otherwise known, signed statements of witnesses, information to be used in a prospective law enforcement action, or uncorroborated allegations. It is therefore concluded that §1-210(b)(3), G.S., does not provide a basis upon which to withhold the list from the complainants.
17. Based upon the foregoing, it is concluded that the respondents violated the FOI Act as alleged in the complaint.
18. With respect to the complainants’ request for the imposition of a civil penalty, §1-206(b)(2), G.S. provides, in relevant part:
…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
19. It is found that respondent Nasto is the official directly responsible for the violation.
20. For purposes of the municipal indemnification statute, it is also found that, though respondent Nasto’s failure to comply with the FOI Act was without reasonable grounds, it was not willful, wanton or malicious.
The following orders by
the Commission are hereby recommended on the basis of the record
concerning the above-captioned complaint:
1. Forthwith, the respondents shall provide the complainants with a copy of the February 22 email containing the list described in paragraph 10 of the findings, above. In complying with this order, the respondents shall not redact any portion of such record.
2. In as much as attorney Nasto was acting in his official capacity as an employee of the respondent City, the respondent City of Hartford shall remit forthwith a civil penalty in the amount of $200 to the Commission.
3. Henceforth, the respondents shall comply with the disclosure requirements of §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2009.
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:
Daniel Goren and the Hartford Courant
c/o William S. Fish, Jr., Esq.
Paul Guggina, Esq.
Hinkley, Allen & Snyder LLP
185 Asylum Street
Hartford, CT 06103
Carl Nasto, Deputy Corporation Counsel,
Office of the Corporation Counsel,
City of Hartford; and City of Hartford
c/o John Rose, Jr.
City of Hartford
550 Main Street, Room 303
Hartford, CT 06103
c/o Richard F. Wareing
Pepe and Hazard
225 Asylum Street
Hartford, CT 06103
Petrea A. Jones
Acting Clerk of the Commission