FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Isaiah Simmons,  
  Complainant  
  against   Docket #FIC 2009-032

Chief, Police Department,

Town of East Haven; and

Police Department,

Town of East Haven,

 
  Respondents December 2, 2009
       

 

The above-captioned matter was heard as a contested case on June 9, 2009, at which time the complainant and the respondents appeared 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, 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 December 31, 2008, the complainant made a request to the respondents for copies of the following records “in reference to” State v. Isaiah Simmons, Docket No. NNHCR060062918T:

 

(a) “Details of any civil complaints filed by or against ‘Officer’ David Cari of his official duties”;

 

(b)  “All police statements and reports and any other files pertaining to the case”;

 

(c)  “All ballistic evidence”;

 

(d)   “All medical reports;”

 

(e)  “All medical, workers compensation, and insurance claims and any other claims pertaining to this case;”

 

(f)  “A copy of Officer David Cari’s disciplinary record.”

 

                  3.  By letter of complaint received and filed January 16, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the requests described in paragraph 2, above.

 

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 that:

 

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 . . . (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 “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

7.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

8.  It is found that the respondents conducted a thorough search for the records described in paragraph 2, above.   It is also found that such search revealed that the respondents maintain no records responsive to the requests described in paragraphs 2(a), 2(c), and 2(f), above. 

 

9.  It is therefore concluded that the respondents did not violate the FOI Act with regard to the requests described in paragraphs 2(a), 2(c), and 2(f), above.

 

10.  With regard to the requests described in paragraphs 2(b), 2(d), and 2(e), it is found that the respondents maintain records responsive to such requests, however, the respondents also claimed, at the hearing in this matter, that such records, or portions thereof, are exempt from disclosure pursuant to 1-210(b)(2), 1-210(b)(3), and 1-215, G.S.  At the conclusion of the hearing, the hearing officer ordered the respondents to submit the records being claimed exempt to the Commission for in camera review.  Such records were provided to the Commission on July 7, 2009, and shall be identified herein as IC 2009-032-A01 through IC 2009-032-A09; IC2009-032-B01 through IC2009-032-B11;[1]  IC2009-032-D01 through IC2009-032-D08; IC2009-032-E01 through IC2009-032-E07.  On the index to the in camera records, the respondents additionally claimed certain portions of the in camera records are exempt from disclosure pursuant to 1-217(a)(2) and 1-210(b)(19), G.S. 

 

11.  It is found that the in camera records consists of various police reports and workers’ compensation records. 

 

12.  With regard to the respondents’ 1-210(b)(19), G.S., claim of exemption, the respondents argue that the following records, or portions thereof, are exempt from disclosure pursuant to such provision:  the victim’s home telephone number and address contained in IC2009-032-A01, A04 and A05; and the transcribed interview of the victim contained in IC2009-032-B01 through IC2009-032-B11.

 

13.  Section 1-210(b)(19), G.S., provides, in relevant  part:

 

 (a) Nothing in the Freedom of Information Act shall be construed to require disclosure of … (19)  Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) (i) by the Commissioner of Public Works, after consultation with the chief executive officer of an executive branch state agency, with respect to records concerning such agency; and (ii) by the Commissioner of Emergency Management and Homeland Security, after consultation with the chief executive officer of a municipal, district or regional agency, with respect to records concerning such agency; (B) by the Chief Court Administrator with respect to records concerning the Judicial Department; (C) by the executive director of the Joint Committee on Legislative Management, with respect to records concerning the Legislative Department.  As used in this section, “government-owned or leased institution or facility” includes, but is not limited to, an institution or facility owned or leased by a public service company, as defined in section 16-1, a certified telecommunications provider, as defined in section 16-1, a water company, as defined in section 25-32a, or a municipal utility that furnishes electric, gas or water service, but does not include an institution or facility owned or leased by the federal government, and “chief executive officer” includes, but is not limited to, an agency head, department head, executive director or chief executive officer.  Such records include, but are not limited to:

 

(i)  Security manuals or reports;

(ii)  Engineering and architectural drawings of government-owned or leased institutions or facilities;

(iii)  Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

(iv)  Training manuals prepared for government-owned or leased institutions or facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(v)  Internal security audits of government-owned or leased institutions or facilities;

(vi)  Minutes or records of meetings, or portions of such minutes or records, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(vii)  Logs or other documents that contain information on the movement or assignment of security personnel;

(viii)  Emergency plans and emergency preparedness, response, recovery and mitigation plans, including plans provided by a person to a state agency or a local emergency management agency or official; and

(ix)  With respect to a water company, as defined in section 25-32a, that provides water service: Vulnerability assessments and risk management plans, operational plans, portions of water supply plans submitted pursuant to section 25-32d that contain or reveal information the disclosure of which may result in a security risk to a water company, inspection reports, technical specifications and other materials that depict or specifically describe critical water company operating facilities, collection and distribution systems or sources of supply.

 

14.  It is found that the respondents offered no evidence, at the hearing in this matter, and therefore failed to prove, that there are reasonable grounds, as determined by the Commissioner of Public Works, the Commissioner of Emergency Management and Homeland Security, the Chief Court Administrator of the executive director of the Joint Committee on Legislative Management, that disclosure of the records, or portions thereof, described in paragraph 12, above, may result in a safety risk.

 

15.  It is therefore found that the records described in paragraph 12, above, or portions thereof, are not exempt from disclosure pursuant to 1-210(b)(19), G.S.

 

16.  With regard to the respondents’ 1-210(b)(3)(B), G.S., claim of exemption, the respondents argue that the following record, in its entirety, is exempt from disclosure pursuant to such provision:  IC2009-032-B01 through IC2009-032-B11.

 

17.  Section 1-210(b)(3)(B), G.S., permits the nondisclosure 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 … signed statements of witnesses.”

 

18.  Upon review of in camera records IC2009-032-B01 through IC2009-032-B11, it is found that such records are records of law enforcement agencies which were compiled in connection with the detection or investigation of crime, within the meaning of 1-210(b)(3)(B), G. S.  It is also found, however, that such in camera records do not constitute signed statements of a witness, within the meaning of 1-210(b)(3)(B), G.S.  Rather, it is found that such records constitute an unsigned transcription of a police department interview.

 

19.  Consequently, it is found that the in camera records described in paragraph 16, above, are not exempt from disclosure under 1-210(b)(3)(B), G.S. 

 

20.  With regard to the respondents’ 1-217(a)(2), G.S., claim of exemption, the respondents argue that the portion of in camera record IC2009-032-E03 which identifies the residential address and phone number of the police officer involved in the incident is exempt from disclosure pursuant to such section.

 

21.  Section 1-217, G.S., provides, in relevant part, that:

 

(a)     No public agency may disclose, under the Freedom of Information Act, the residential address of any of the following persons:…(2)   A sworn member of a municipal police department, a sworn member of the Division of State Police within the Department of Public Safety or a sworn law enforcement officer within the Department of Environmental Protection….

22.  It is found that the residential address of the police officer listed in the in camera record described in paragraph 18, above, is exempt from disclosure pursuant to 1-217(a)(2), G.S.  However, it is found that such statute does not exempt from disclosure the home phone numbers of police officers.  It is further found that the respondents offered no evidence at the hearing in this matter of any efforts undertaken by this officer to keep his home phone number private.

23.  However, at the hearing in this matter, the complainant repeatedly stated that he was not seeking any “personal information” about this officer, but rather, was only seeking information related to the performance of his job as a police officer.  Based upon such statements, the Commission declines to order the disclosure of the officer’s home phone number.

24.  The respondents also seek to withhold the officer’s social security number, contained in IC2009-032-E03, pursuant to 1-210(b)(2) and 1-210(b)(19), G.S.  With respect to social security numbers in general, the Commission has historically declined to order the disclosure of such numbers.  Based upon this precedent, and coupled with the complainant’s statements at the hearing that he is not seeking this type of personal information about this officer, the Commission declines to order the disclosure of the officer’s social security number contained in IC 2009-032-E03.

25.  With regard to the respondents’ 1-215, G.S., claim of exemption, the respondents argue that the following record, in its entirety, is exempt from disclosure pursuant to such section:  IC2009-032-D06.

 

26.  Section 1-215(a), G.S., provides, in relevant part, that “any record of the arrest of any person…shall be a public record…. Any personal possessions or effects found on a person at the time of such person’s arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested.” 

 

27.  After careful review of the in camera record described in paragraph 25, above, it is found that portions of such record describe possessions or effects not relevant to the crime for which the person was arrested.  It is therefore found that only those portions of such record which describe such possessions or effects are exempt from disclosure pursuant to 1-215, G.S.

 

28.  Based upon the foregoing, it is therefore concluded that the respondents violated the FOI Act by withholding the records, or portions thereof, described in paragraphs 12 and 16 and 27.

 

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 provide the complainant with a copy of the in camera records, free of charge.

 

2.  In complying with paragraph 1 of the order, above, the respondents may redact the residential address, phone number and social security number of the police officer, wherever such information is located in the in camera records.  In addition, the respondents may redact those portions of IC2009-032-D06 that identify any possessions or personal effects not relevant to the arrest of the complainant.

 

3.  Henceforth, the respondents shall strictly 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 December 2, 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:

 

Isaiah Simmons #336740

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Chief, Police Department,

Town of East Haven; and

Police Department,

Town of East Haven

C/o Benjamin Gettinger, Esq.

Lynch, Traub, Keefe and Errante

Attorneys and Counselors At Law

52 Trumbull Street

P.O. Box 1612

New Haven, CT 06506

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-032FD/sw/12/8/2009

 

 



[1] Although the respondents submitted records identified with the letter “C”, no redactions were made in, and no exemptions were claimed for, such records.