FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION
Anthony W. Oliphant,  
  Complainant  
  against   Docket #FIC 2008-790

James M. Lewis, Chief, Police Department,

City of New Haven; and Police Department,

City of New Haven,  

 
  Respondents November 18, 2009
       

 

The above-captioned matter was heard as a contested case on August 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 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 November 28, 2008, the complainant requested copies of the following:

 

[a].   Pursuant to Sec. 1-200, all ‘pending claim’ and ‘pending litigation’ associated with criminal cases (2) #06-5559 and #55984;

 

[b].  A complete copy of the file, investigation and the conclusion reached in the original, 9/28/06, ‘New Haven Civilian Complaint’ (1) that was filed with … and physically submitted to:  Det. Max Joyner, of the New Haven Police Department/Internal Affairs Unit;

 

[c].  Copy of New Haven Police ‘Complaint-Procedure/Policy;’

 

[d].  In reference to criminal-complaint #06-55984, I request ‘written-verification’ in order to verify and substantiate the delusive [sic] claim of, quote: ‘Mr. Oliphant wanted the incident documented in case his ex-girlfriend brothers come back to his home and he needs to defend himself’ (end of quote).  With no arrest being made for inexplicable reasons, why?

 

3.      It is found that on December 9, 2008, the respondents sent two pages of records that were responsive to the complainant’s request for records of criminal case #06-55984, as described in paragraph 2.a, above.

 

4.      By letter dated December 18, 2008, and filed on December 22, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request for records, described in paragraph 2, above.  The complainant requested that the Commission assess a civil penalty against the respondents.

 

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

 

“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.

 

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

 

[e]xcept 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 receive a copy of such records in accordance with the provisions of 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 concluded that the records requested by the complainant, to the extent that they exist, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that on May 29, 2009, the respondents provided 80 pages of records to the complainant.  It is found that such records were responsive to the complainant’s request for records, described in paragraph 2.a, b, and c, above.

 

10.    It is found that on June 22, 2009, the respondents provided additional records that were responsive to the complainant’s request, described in paragraph 2.c, above.

 

11.    At the hearing in this matter, the respondents agreed to search for additional records that, if they exist, would be responsive to paragraph 2.b, above.  

 

12.    It is found, based on an affidavit submitted by the respondents, that as a result of the search described in paragraph 11, above, the respondents discovered a CD and a micro-cassette that had not been included with the records provided to the complainant on May 29, 2009.  It is further found that on September 8, 2009, the respondents provided a copy of such CD and a transcription of the micro-cassette to the complainant.

 

13.   It is found that the respondents attributed the delay of six months before they complied with the complainant’s straightforward request for records to a mistake by the clerical staff in the Records Room.

 

14.   It is found that the respondents failed to promptly provide the records requested by the complainant, described in paragraph 2.a, b., and c., above.

 

15.   It is concluded, therefore, that the respondents violated the promptness provisions of 1-212(a), G.S.

 

16.   Section 206(b)(2), G.S., provides:

 

[U]pon 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.” 

         

17.      It is found that the respondent Chief is directly responsible for the violations of the FOI Act and that he acted without reasonable grounds.  However, the Commission, in its discretion, declines to impose a civil penalty. 

 

18.     With respect to the complainant’s request for records described in paragraph 2.d, above, it is found that the respondents provided copies of records in the criminal case #06-55984.  It is found, however, that the complainant’s request described in paragraph 2.d, above, also included a request for an answer to a question.  It is concluded that the FOI Act does not require an agency to create a record to answer a request for information.

 

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

 

1.         Henceforth, the respondents shall strictly comply with the promptness requirements of 1-212(a), G.S.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 18, 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:

 

Anthony W. Oliphant #139521

Northern Correctional Institution

287 Bilton Road

P.O. Box 665

Somers, CT 06071

 

James M. 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

New Haven, CT 06510

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-790FD/sw/11/23/2009