FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Susan Wallace,

 
  Complainant  
  against   Docket #FIC 2009-402

Lynn Baldoni, Chief, Police Department,

City of Middletown; and Police Department,

City of Middletown,

 
  Respondents May 26, 2010
       

 

The above-captioned matter was heard as contested case on November 4, 2009, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.

 

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)(A), G.S.

 

2.  It is found that by letter, dated June 23, 2009, the complainant made a request to the respondents for copies of all three statements she had provided to the respondents and certain other records.  By letter dated July 14, 2009, the complainant refined and supplemented her request to the respondents for copies of:

 

a)      Every family violence offense report made pursuant to 46b-38d(a), G.S., in any incident involving either Gregory M. Warzecha or Tyler S. Warzecha;

b)      Records regarding Gregory M. Warzecha;

c)      Records regarding Tyler S. Warzecha;

d)     Records regarding the complainant; and

e)      All records created pursuant to 4-193(c), G.S., concerning who has obtained access to, or received disclosure of, personal data and the reason for each such access.

 

3.  It is found that by letter dated June 26, 2009 the respondents acknowledged the complainant’s June 23, 2009 request, stating that the respondent Police Department is “reviewing and acting on said request”.

 

4.  By letter dated July 8, 2009 and filed with the Commission on July 9, 2009, the complainant appealed to the Commission, alleging that the respondents’ failure to provide the five categories of requested records (the “requested records”) violated the Freedom of Information Act (“FOIA”). The complainant requested the imposition of civil penalties. At the hearing, the respondents stipulated that the July 14, 2009 letter be deemed part of the original June 23, 2009 request.

 

5.  Section 1-200(5), G.S., states:

 

“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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

7.  It is concluded that the requested records are “public records” within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.  Sections 1-210(b) and 1-216, G.S., state, respectively, in relevant parts:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

 

(3) 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 (C) information to be used in a prospective law enforcement action if prejudicial to such action, … (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, … (G) uncorroborated allegations subject to destruction pursuant to section 1-216;

 

….

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

9.  At the hearing, the respondents agreed to submit the requested records for an in camera inspection. The respondents submitted sixteen sets of records, which all together comprised 315 pages of records.  The sixteen sets of records are identified by their respective case numbers assigned by the respondent Department. On the index to the in camera records, the respondents claimed the exemptions at 1-210(b)(3)(C), 1-210(b)(3)(E), 1-210(b)(3)(G), and 54-142a, G.S., for various of the respective records.

 

10.  It is further found that the requested records are the records of a law enforcement agency, that they are not otherwise available to the public, and that they were compiled in connection with the investigation of crime. 

 

11. It is found that the records described at paragraph 14.e), 14.k), 14.n), and 14.o) involved arrests, and that all charges were dismissed or nolled, except for the charges described in paragraph 14.k), which have been conditionally dismissed and were not subject to a final disposition as of December 2, 2009 (the date the in camera records were certified).

 

12.  The American Heritage Dictionary (2nd College Ed. 1976) defines “corroborate” to mean: “To support or confirm by new evidence; attest the truth or accuracy of.”

 

13.  Black’s Law Dictionary (5th Ed. 1979) defines “corroborate” to mean:

 

To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.  The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.

 

See Michael Thibault v. Chief, Police Department, City of New London, Docket #FIC 2006-344; Bona v. Freedom of Information Commission; Rowland v Freedom of Information Commission, 44 Conn. App. 622 (1997); Bona v. Freedom of Information Commission; Rowland v Freedom of Information Commission, CV94-0123208S, CV94-0123411S (1995).                    

 

14.  Based upon the in camera inspection, it is concluded that:

 

a)      Record 01-29140, described on the in camera index as “harassing phone calls”, including three pages with reports dated October 16, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.;

b)      Record 02-13331, described on the in camera index as “suspicious letter”, including four pages with reports dated May 29, 2002, is exempt from mandatory disclosure, with allegations in an email that are uncorroborated pursuant to 1-210(b)(3)(G), G.S.;

c)      Record 03-26451, described on the in camera index as “possible child abuse”, including two pages with reports dated October 9, 2003, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.;

d)     Record 04-30220, described on the in camera index as “suspected abuse”, including eleven pages with reports dated December 17, 2004, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.;

e)      Record 08-1881, described on the in camera index as “domestic violence, risk of injury, assault in the 3rd degree, disorderly conduct”, including thirty five pages with reports dated January 24, 2008, is exempt from mandatory disclosure, because it is an erased record pursuant to 54-142a, G.S.;

f)       Record 08-15038, described on the in camera index as “missing person”, including twenty pages with reports dated June 17, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to 1-210(b)(3)(E), G.S.;

g)      Record 08-15093, described on the in camera index as “police assist”, including a one page report dated June 17, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to 1-210(b)(3)(E), G.S.;

h)      Record 08-28753, described on the in camera index as “missing person”, including eleven pages with reports dated November 24, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to 1-210(b)(3)(E), G.S.;

i)        Record 08-28828, described on the in camera index as “larceny, theft from building”, including thirty eight pages with reports dated July 27, 2009, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to 1-210(b)(3)(E), G.S.;

j)        Record 09-11983, described on the in camera index as “suspicious person”, including four pages with reports dated June 1, 2009, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.;

k)      Record 09-13608, described on the in camera index as “domestic violence, arrest, strangulation third degree, dismissed conditionally, only arraignment report is releasable, no disposition as of December 2, 2009” (emphasis added), including thirty pages with reports dated June 18, 2009, is exempt from mandatory disclosure, because it contains information to be used in a prospective law enforcement action disclosure of which would be prejudicial to such action, pursuant to 1-210(b)(3)(C), G.S.;

l)        Record 09-14014, described on the in camera index as “police assist, violation protective order”, including twenty five pages with reports dated June 22, 2009, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.;

m)    Record 01-14746, described on the in camera index as “well being check”, including three pages with reports dated June 3, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G) , G.S.;

n)      Record 01-20878, described on the in camera index as “domestic violence, assault in the 3rd degree, disposition nolle, November 9, 2001”, including fifteen pages with reports dated July 29, 2001, is exempt from mandatory disclosure, because it contains erased records pursuant to 54-142a, G.S.;

o)      Record 01-19897, described on the in camera index as “domestic violence, disorderly conduct, criminal mischief, disposition dismissed, January 29, 2002”, including forty one pages with reports dated July 20, 2001, is exempt from mandatory disclosure, because it contains erased records pursuant to 54-142a, G.S.; and

p)      Record 01-22728, described on the in camera index as “suspicious circumstances”, including seventy two pages with reports dated August 14, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to 1-210(b)(3)(G), G.S.

 

15.  At the hearing, the complainant stated that the prosecutor’s office had indicated that the records referred to above at paragraph 14.e) could be released. The hearing officer offered the complainant an opportunity to file a late filed exhibit containing such a statement from the prosecutors. The complainant did, in fact, file with the Commission a statement authorizing release from the Office of the Chief State’s Attorney. But according to the complainant’s correspondence, the respondents have not released such records. As discussed at paragraphs 11 and 14.e), above, such records resulted in a criminal charge, which has been dismissed or nolled. Therefore, as previously concluded, these records are erased and exempt from disclosure (except to the subject of the records) pursuant to 54-142a and 54-142(e)(1), G.S.

 

16.  It is concluded that the respondents did not violate 1-210(a) and 1-212(a), G.S., when they failed to provide the requested records to the complainant.

 

17With respect to the complainant’s request for the imposition of a civil penalty, 1-206(b)(2), G.S. provides, in relevant part:

 

…upon 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.

 

18.  Based on the conclusion in paragraph 16, the Commission finds that there was no violation of the FOIA, and therefore there are no grounds for a civil penalty.

 

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

 

1.      The respondents are ordered to search for: a) family violence offense reports made pursuant to 46b-38d(a), G.S., in any incident involving either Gregory M. Warzecha or Tyler S. Warzecha; and b) records created pursuant to 4-193(c), G.S., that relate to the in camera records described at paragraph 14.  If any such records are located, the respondents shall, within 30 days of the mailing of the final decision,   provide such records to the complainant without charge. If the respondents have no such records, they shall, within 30 days of the mailing of the final decision, provide the complainant with an affidavit detailing the extent of their search, and stating that they maintain no such records. 

 

2.      Except as provided in order 1, above, the complaint is hereby dismissed.

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 26, 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:

 

Susan Wallace

11 Blue Orchard Drive

Middletown, CT 06457

 

Lynn Baldoni, Chief, Police Department,

City of Middletown; and Police Department,

City of Middletown

c/o Timothy P. Lynch, Esq.

Acting City Attorney

245 DeKoven Drive

PO Box 1300

Middletown, CT 06457

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-402FD/paj/6/1/2010