FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|against||Docket #FIC 2008-328|
James Lewis, Chief, Police Department,
City of New Haven; and
Police Department, City of New Haven,
|Respondents||April 22, 2009|
The above-captioned matter was heard as a contested case on October 30 and December 8, 2008, at which times 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 Correction. See 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.). This matter was consolidated for hearing with docket #FIC 2008-518, Bryan Jordan v. James M. Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven; and docket #FIC 2008-649, Bryan Jordan v. John Lewis, Chief, Police Department, City of New Haven; and Police Department, City of New Haven.
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. By letter of complaint filed May 8, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for copies of records pertaining to his arrest and conviction, and requesting the imposition of civil penalties against the individually named respondent.
3. It is found that by letter dated April 28, 2008 the complainant requested copies of twenty-five categories of records pertaining to his arrest and conviction.
4. It is found that the complainant, by letter to the Commission dated October 17, 2008, stated that he had received some of the requested records from the respondents, and that the only records not released to him were:
a. any and all tape-recorded statements from any and all persons listed in the complainant’s April 28, 2008 request;
b. the detailed agreement between the State of Connecticut and the State of North Carolina in regard to the charges pending against and the extradition of Roger Williams (a witness to the homicide of Curtis Hannans, described below). The complainant clarified that he sought all charges that the New Haven Police Department was actively seeking to arrest Mr. Williams for in the month of January 2007, and how the charges were plead to both in Connecticut and North Carolina;
c. a detailed report from the autopsy lab that performed the autopsy of the victim Curtis Hannans, indicating whether a gun powder residue test was done on that victim;
d. any and all photographs of the crime scene;
e. all active warrants for the arrest of Curtis Hannans at the time of his death on September 19, 2005;
f. any release of funds approved by the New Haven Police Department given for a written or taped statement relating to the events that caused the death of Curtis Hannans; and
g. copies of the arrest warrant and affidavit that was filed with the State’s Attorney’s Office for the arrest of Detective Clarence Willoughby (who investigated the Hannans homicide).
5. The complainant also explained in his October 17, 2008 letter that he had requested the internal affairs investigation of Detective Willoughby, and generally sought to prove that Willoughby had untruthfully testified concerning his untarnished police record at the time of the complainant’s trial. The internal investigation report is not the subject of this complaint, and will be addressed in a subsequent decision of the Commission.
6. It is found that the respondents, in response to the request described in paragraph 4.a, above, provided transcripts of the requested tape-recorded statements, rather than the recordings themselves.
7. It is found that the information redacted from the transcripts was the identity of informants not otherwise known and the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known.
8. It is found that the respondents do not have the technical ability to redact the information described in paragraph 7, above, from the tape-recorded statements.
9. It is found the detailed agreement described in paragraph 4.b, above does not exist. It is further found that, after a diligent search for all active arrest warrants, the respondents were unable to locate any records in their files indicating what charges the New Haven Police Department was actively seeking to arrest Mr. Williams for in the month of January 2007, and how the charges were pleaded to both in Connecticut and North Carolina.
10. It is found that the respondents conducted a diligent search for the autopsy record described in paragraph 4.c, above, and that it is not in the custody of the respondents.
11. It is found that the photographs described in paragraph 4.d., above, were provided to the complainant on or about November 9, 2008, by agreement of the respondents, following the first hearing on this matter. It is also found that the photographs were immediately confiscated by the Department of Correction.
12. It is found that the respondents conducted a diligent search for the Hannans arrest warrants described in paragraph 4.e, above, and that they do not have copies of such warrants.
13. It is found that the “release of funds” records described in paragraph 4.f, above, relate to payments to confidential informants. It is found that three categories of records are responsive to this request: (a) the individual “chits” made by the individual police officers, identifying the confidential informant (the “CI”) and the amount of the payment; (b) the requests for reimbursement made by the officers to the department; and (c) a log of which confidential informants received payments.
14. It is found that the records described in paragraph 13, above, were at one time boxed and delivered, in somewhat unorganized form, to the Federal Bureau of Investigation. It is further found that the ten to twelve boxes of records were returned to the Police Department in 2008, when the internal investigation of Detective Willoughby created concerns about the payments to confidential informants, and the records were audited by the Department.
15. The Commission takes administrative notice of the fact that Detective Willoughby was charged with stealing money from the Department’s CI fund. The Commission also takes administrative notice of the fact that, in the course of that criminal proceeding, Willoughby, through his attorney, subpoenaed, and was granted access to, in April 2009, records relating to three confidential informants; a complete list of all confidential informants registered with the New Haven police department from 2004 through 2007; records of any internal affairs investigation of Willoughby and five others; and records, including inventories, letters and/or receipts relating to documents seized from the New Haven Police Department by the Federal Bureau of Investigation during the past five years.
16. It is found that, to find any CI payment records relating to the request in paragraph 4.f, above, the respondents would have to conduct research that linked the homicide of Hannans, the name of the CI that gave a statement in that homicide, and Detective Willoughby, particularly his alleged misconduct with respect to CI files.
17. It is found, by reasonable inference from the facts on the record, that the Department, in its audit of the CI payments, and its internal investigation of Detective Willoughby, and its assembly of records in response to the production request described in paragraph 15, above, would have found any records responsive to the request in paragraph 4.f above. Thus, the complainant’s request for such records would not itself require research, the research already having been conducted by the Department.
18. It is found that the arrest warrant and affidavit described in paragraph 4.g., above, exists. At the hearing, the respondent agreed to provide this record, if it had not been sealed by the court, within two days of the hearing. It is further found that the respondent presented no evidence that the arrest warrant and affidavit were sealed. It is also found, however, that the warrant and affidavit were not received by the complainant, either because they were never delivered to the complainant, or because they were confiscated by the Department of Correction.
19. Section 1-200(5), G.S., provides:
“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 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.
20. 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, (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.
21. It is found that the records described in paragraph 4.g, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
22. The complainant contends that he is entitled to receive not just a redacted transcript of the taped witness statements described in paragraph 4.a, 6, 7, and 8, above, but a copy of the actual tape recording itself.
23. The respondents maintain that the identity of the witnesses and informants named in the recorded statements are exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., and that the respondents’ only means of redacting that information is to transcribe the recording and redact the identities of the protected persons.
24. Section 1-210(b)(3)(A), G.S., provides that disclosure is not required 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 ….
25. It is concluded that the respondents are not required to disclose the information described in paragraphs 22 and 23, above, and that a redacted transcript was a reasonable accommodation to the complainant’s request, under the facts and circumstances of this case.
26. It is therefore concluded that the respondents did not violate §1-210(a), G.S., by providing redacted transcripts to the complainant.
27. With respect to the photographs confiscated from the complainant by the Department of Correction, it is found that the respondents did not violate the Freedom of Information Act.
28. With respect to the “release of funds” records described in paragraph 4.f, the respondents contend that it would be too burdensome to research the ten to twelve unorganized boxes of records to find the particular payment records sought by the complainant, and redact the names of the confidential informants.
29. It is found, however, that the respondents have had several opportunities to have reviewed and/or audited the records described in paragraph 4.f., above, and that responding to the complainant’s request would not require additional research.
30. It is concluded that the respondents violated §1-210(a), G.S., by failing to provide the records described in paragraph 4.f, above.
31. With respect to the requests described in paragraphs 4.b, 4.c, and 4.d, it is found that the respondents did not violate the FOI Act, since they do not have custody of those records, if they exist at all.
32. It is found that the respondents did not act without reasonable grounds and that therefore the imposition of civil penalties is not warranted.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall forthwith mail or deliver to the complainant, at his institutional address, the records described in paragraphs 4.f and 4.g., above. In supplying the records described in paragraph 4.f, the respondents may delete the identity of any confidential informants. If no records described in paragraph 4.f exist, the respondents shall execute an affidavit to that effect, and deliver it to the complainant, with a copy to the Commission.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 22, 2009.
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:
James Lewis, Chief, Police Department,
City of New Haven; and
Police Department, City of New Haven
C/o Kathleen M. Foster, Esq.
Office of the Corporation Counsel
165 Church Street, 4th Floor
New Haven, CT 06510
Acting Clerk of the Commission