FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Vernon Horn,  
  Complainant  
  against   Docket #FIC 2008-573

Chief, Police Department,

City of New Haven; and

Police Department, City of

New Haven,

 
  Respondents August 26, 2009
       

           

The above-captioned matter was heard as a contested case on April 7, 2009 at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The respondents moved to reopen the hearing, and such motion was granted.  The reopened hearing was conducted on August 10, 2009.  At such time, the complainant appeared and presented argument on the complaint.  The respondents did not appear at the August 10, 2009, hearing, although the administrative record of the Commission in this matter indicates that the respondents received notice of such hearing.  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.). 

 

            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 letter dated August 21, 2008, the complainant requested that the respondents provide him with copies of any and all records related to the investigation of the homicide that took place on January 24, 1999, case #99-4353, including statements, memos, reports and interviews conducted by Detectives Dease, Adger, Breland, and Coppola (hereinafter “the requested records”).    

 

3.  By letter dated August 26, 2008, and filed September 2, 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 the requested records.        

 

4.  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.

 

5.  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. 

 

6.  Section 1-212(a), G.S., provides in relevant part that “any 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 1-200(5), 1-210(a) and 1-212(a), G.S.

 

8.  It is found that, in November 2008, the respondents attempted to provide the complainant with approximately two hundred pages of responsive records, some of which were redacted.  It is also found that such packet of records was returned in the mail to the respondents as unclaimed.  It is found that, in January, 2009, the respondents again sent to the complainant, at his place of incarceration, responsive records, some of which were redacted.  It is further found that, when the complainant received the January packet of records, he reviewed them, saw that they were redacted, and returned them to his counselor-supervisor at the correctional facility.   At the hearing in this matter, the complainant testified that he refused the packet of records because they are needed for court and the court will not accept redacted records.

 

9.  It is found that, subsequent to January 2009, the respondents made further, exhaustive searches for any other responsive requested records and located some photographs and copies of evidence log sheets.  At the hearing in this matter, the respondents pledged to send copies of such records to the complainant.

 

10.  It is concluded that the respondents violated the promptness provisions of 1-210(a) and 1-212(a), G.S., in this matter by providing copies of the requested records several months after the request for such records.

 

11.  Based on the facts and circumstances of this case, it is found that the respondents have located and provided, or agreed to provide, to the complainant all requested records, except for the redactions described in paragraph 8, above. 

 

12.  The respondents submitted copies of the redacted records to the Commission for in camera review.  Such in camera documents are hereinafter identified as IC-2008-573-1 through IC-2008-573-24, and IC-2008-573-31 through IC-2008-573-328.  

 

            13.  At the time the respondents submitted the in camera documents described in paragraph 12, above, they also submitted redacted copies of such documents to the Commission for comparison.  Pursuant to 1-21j-38, Regulations of Connecticut State Agencies, such redacted copies are hereby designated as respondents’ after-filed exhibit # 4.  

 

14.  On the index to in camera records, the respondents indicated that they claim no exemption for the following records:  IC-2008-573-263 through IC-2008-573-283, IC-2008-573-291, IC-2008-573-293 through IC-2008-573-295, and IC-2008-573-308 through IC-2008-573-322.   Accordingly, such documents should have been disclosed to the complainant.

 

15.  With respect to the remainder of the in camera documents, the respondents contend that 1-210(b)(3)(A), G.S., exempts such records from mandatory disclosure.

 

16.   Section 1-210(b)(3)(A), G.S., exempts from mandatory disclosure:

 

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….

 

17.  The in camera documents described in paragraph 15, consist of incident reports, transcripts of witness statements, evidence log sheets, and inventory of property forms, all such documents dating from 1999.  Upon careful review of such in camera documents, it is found that they constitute records of a law enforcement agency compiled in connection with the detection or investigation of crime, within the meaning of 1-210(b)(3), G.S. 

 

18.  The respondents contend that the identity of witnesses and informants in the in camera records are exempt by virtue of 1-210(b)(3)(A), G.S.   The Commission notes that the respondents have redacted more information from the records than the identities of individuals.

 

19.  Upon careful review of IC-2008-573-194, it is found that the redactions on such page constitute the identity of an informant not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if such person’s identity were made known, within the meaning of 1-210(b)(3)(A), G.S.   Accordingly, it is concluded that the redactions on such page are permissibly exempt from mandatory disclosure.  It is further concluded that the respondents did not violate the FOI Act by withholding such portions of IC-2008-573-194 from the complainant.

 

20.  With respect to the remainder of the in camera documents, it is found that the respondents failed to prove that the redactions at issue constitute the identity of informants or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if such persons’ identity were made known, within the meaning of 1-210(b)(3)(A), G.S.   Accordingly, it is concluded that such redactions are not permissibly exempt from mandatory disclosure.  It is further concluded that the respondents violated the FOI Act by withholding such portions of the in camera records from the complainant.

 

 

            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 to the complainant copies of the in camera records described in paragraph 15 of the findings, above, without redactions, and free of charge.

 

            2.  In complying with paragraph 1 of the order, above, the respondents need not disclose the redactions in IC-2008-573-194. 

 

            3.  If they have not already done so, the respondents shall provide to the complainant copies of the records described in paragraph 14, above, free of charge.

 

 

           

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 26, 2009.

 

____________________________

S. Wilson

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:

 

Vernon Horn #260554

Corrigan-Radgowski C I

986 Norwich New-London Turnpike

Uncasville, CT 06382

 

Chief, Police Department,

City of New Haven; and

Police Department, City of

New Haven

C/o Kathleen M. Foster, Esq.

Assistant Corporation Counsel

City of New Haven

165 Church Street

New Haven, CT 06511

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-573FD/sw/8/27/2009