FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Ricardo Leon,  
  Complainant  
  against   Docket #FIC 2009-335

Chief, Police Department,

City of Waterbury; and

Police Department,

City of Waterbury,

 
  Respondents May 12, 2010
       

           

The above-captioned matter was heard as a contested case on October 23, 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.  By letter of complaint filed June 8, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for copies of certain police records.     

 

            3.  It is found that by letter sent dated May 21, 2009, the complainant requested copies of records pertaining to his criminal case, and to certain police procedures.

 

            4.  It is found that the respondents promptly provided all the responsive records in their custody, with the exception of signed witness statements, and excerpts contained in the arrest warrant application that quoted verbatim those signed witness statements.  Those excerpts were redacted from the copies of the arrest warrant application provided to the complainant.

 

5.  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.

 

            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, (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. 

 

7.  It is found that the signed witness statements and excerpts from those statements are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

            8. The respondents maintain that the records described in paragraph 7, above, are exempt from disclosure pursuant to 1-210(b)(3)(B), G.S., which 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 … (B) signed statements of witnesses ….

           

            9.  The records described in paragraph 7, above, were submitted to the Commission for an in camera inspection.      

 

10.  It is found that the signed witness statements themselves described in paragraph 7, above, are records of a law enforcement agency not otherwise available to the public which were compiled in connection with the detection or investigation of crime, and that disclosure of said records would not be in the public interest because it would result in the disclosure of signed statements of witnesses.

 

11.  It is therefore concluded that the signed witness statements are permissibly exempt from disclosure pursuant to 1-210(b)(3)(B), G.S., and that the respondents did not violate the FOI Act in declining to provide them to the complainant.

 

12.  However, it is also found that the excerpts from the signed witness statements (if not the entire witness statements) are contained in the arrest warrant application filed in the Superior Court.

 

13. Section 36-2 of the Connecticut Practice Book governing criminal proceedings provides:

 

 (a) All affidavits submitted to the judicial authority in support of the application for an arrest warrant and from which a determination of probable cause for the issuance of an arrest warrant has been made shall be filed with the clerk of the court together with the return of the arrest warrant pursuant to Section 44-11 and thereafter remain a part of the court file.

(b) At the time the arrest warrant is issued, upon written request of the prosecuting authority and for good cause shown, the judicial authority may order that the supporting affidavits be sealed from public inspection or that disclosure be limited under such terms and conditions as it finds reasonable, subject to the further order of any judicial authority thereafter having jurisdiction of the matter. No such order shall limit their disclosure to the attorney for the accused, but the judicial authority may place reasonable restrictions on the attorney's further disclosure of the contents of the affidavits.

(c) Any order sealing such affidavits from public inspection or limiting their disclosure shall be for a specific period of time, not to exceed two weeks from the date of arrest, and within that time period the prosecuting authority may by written motion seek an extension of the period. The original order of the court sealing the affidavit or limiting its disclosure shall remain in effect until the court issues an order on the motion. The motion to extend the period and the court's order thereon shall be made in accordance with the provisions of Section 42-49A. Affidavits which have been the subject of such an order shall remain in the custody of the clerk's office but shall be kept in a secure location apart from the remainder of the court file.

(d) Unless the judicial authority issuing an arrest warrant has, upon written request of the prosecuting authority, entered an order limiting disclosure of the supporting affidavits, all affidavits filed pursuant to this section shall be open to public inspection and copy and the clerk shall provide copies to any person upon receipt of any applicable fee.

 

14.  The respondents presented no evidence that the arrest warrant application was ever sealed by the court in 2005, at the time of the arrest, or that it continued to be sealed at the time of the request in this case.

 

15.  It is therefore concluded that the excerpts from the signed witness statements contained in the arrest warrant applications (but not the entire witness statements, unless the excerpt constitutes the entire statement) are otherwise available to the public.

 

16.  It is therefore concluded that the excerpts from the signed witness statements contained in the arrest warrant applications are not exempt from disclosure pursuant to 1-210(b)(3)(B), G.S., and that the respondents violated the FOI Act by withholding such 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.  The respondents shall forthwith provide to the complainant an unredacted copy of the arrest warrant application requested by the complainant, free of charge.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 2010.

 

 

 

____________________________

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:

 

Ricardo Leon, #340879

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Chief, Police Department,

City of Waterbury; and

Police Department,

City of Waterbury

c/o Kevin J. Daly, Jr., Esq.

Corporation Counsel’s Office

26 Kendrick Avenue, 8th Floor

Waterbury, CT 06702

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-335FD/paj/5/13/2010