FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Glenn M. Conway,  
  Complainant  
  against   Docket #FIC 2009-695

Chief, Police Department,

Town of Orange; and Police Department,

Town of Orange,

 
  Respondents July 28, 2010
       

 

The above-captioned matter was heard as a contested case on March 1 and April 22, 2010, at which times 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 November 9, 2009, the complainant made a far reaching request to the respondents for copies of various categories of records, which included the entire personnel file of Officer Chris Chiarelli. The request expressly excluded “all records pertaining to medical information, home addresses and phone numbers.”

 

3.  By letter dated November 16, 2009 and filed with the Commission on November 18, 2009, the complainant appealed to the Commission, alleging that the respondents “denied access to records, prompt or otherwise”, and asked the Commission to “order immediate access to records and whatever other relief the Commission deems appropriate.” 

 

4.  It is found that, by letter dated November 17, 2009, the respondents responded to various aspects of the complainant’s November 9, 2009 request, including with reference to the personnel file of Officer Chris Chiarelli, a statement that “notice has been sent to Officer Chiarelli and his Union pursuant to 1-214 of the Connecticut General Statutes.” It is also found that both Officer Chiarelli and the President of the relevant union, UE Local 222, each executed and filed a single sworn objection, dated November 25, 2010, to the disclosure of Officer Chiarelli’s personnel file with the respondent Police Department. In response to the complainant’s letter dated November 9, 2009, the respondents, by additional correspondence, provided other records which are no longer at issue in this case.

 

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 records requested by the complainant are “public records” within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.  Section 1-210(b), G.S., states in relevant part:

 

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… (D) investigatory techniques not otherwise known to the general public….

 

9.  At the March 1, 2010 hearing, the complainant stipulated that the only records remaining at issue, as a result of his November 9, 2009 request, are the personnel records of Officer Chris Chiarelli (the “requested records”). Also at the March 1, 2010 hearing, the respondents agreed to perform a page by page review of the requested records in order to identify the specific records concerning which Officer Chiarelli and his Union might waive their objections to disclosure. This process resulted in the identification of approximately 159 pages that the respondents were willing to disclose in full and another six records that the respondents were willing to disclose with some redaction. At the April 22, 2010 hearing, following the payment of a copying charge, these pages and the redacted records were provided to the complainant. Finally, at the March 1, 2010 hearing, the respondents agreed to submit all requested records that it did not agree to disclose to the Commission for an in camera inspection, including un-redacted copies of records to be disclosed in redacted form.

 

10.  On April 9, 2010, the respondents submitted fifteen pages of records for in camera inspection.  On the index to the in camera records, the respondents claimed various exemptions, including 1-210(b)(3)(D), G.S., for various of the respective records. Such records are hereby identified as IC-2009-695-1 through IC-2009-695-15. Record IC-2009-695-1 through Record IC-2009-695-6, inclusive, are the records that were disclosed with redactions.  

 

11.  It is 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. 

 

12.  At both hearings, respondents’ counsel represented that Officer Chiarelli had a “sensitive” and “unusual” assignment, and based on the in camera inspection, it is so found. The complainant, who is an attorney with knowledge of the criminal justice system, testified that his review of various unsealed arrest warrants in the offices of various Court Clerks tended to disclose the nature of Officer Chiarelli’s “sensitive” and “unusual” assignment. Respondents countered that a distinction should be drawn between counsel being able to draw his own inferences based upon his review of a series of public records on file in various Courts, and disclosure of specific records that confirmed a certain “sensitive” and “unusual” assignment.

 

13.  Based on the in camera inspection, it is found that disclosure of the requested records would place the personal safety of Officer Chiarelli at risk. At the April 22, 2010 hearing, respondents’ counsel represented that the complainant’s law partner, Greg Cerritelli, represented an individual arrested by Officer Chiarelli in a criminal case that was ongoing. Officer Chiarelli was the arresting officer in a concerted effort and the arrested individual represented by attorney Cerritelli was part of a group. The complainant did not demur concerning these representations of respondents’ counsel.

 

14.  It is finally found that Officer Chiarelli lives with daily concern for his physical well being. Respondents’ counsel argued that information should not be subject to mandatory disclosure that would facilitate someone, not party to this case, who wished to perform research with criminal intent to eliminate a witness, or alternatively, to intimidate an officer.

 

15.  It is first of all concluded that the complainant, with his legal expertise as an attorney, being able to review various Court filings in different locations and reach his own unconfirmed inference concerning Officer Chiarelli’s assignment, does not, whether his inference is correct or not, constitute disclosure of “investigatory techniques not otherwise known to the general public” (emphasis added), as that phrase is utilized in 1-210(b)(3)(D), G.S.    

 

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

 

a)      Record IC-2009-695-1 through Record IC-2009-695-6, inclusive, contain six redactions (out of twenty six) that are outside the scope of the complainant’s request; the remaining twenty redactions are exempt from mandatory disclosure pursuant to 1-210(b)(3)(D), G.S., because their disclosure would result in disclosure of investigatory techniques not otherwise known to the general public;

 

b)      Record IC-2009-695-7 contains social security information that is exempt from mandatory disclosure pursuant to various provisions of federal law and state statute, as recognized in numerous previous decisions of the Commission; Record IC-2009-695-7 also contains health insurance policy information which the Commission has previously declined to order disclosed (for example, Docket #FIC 2008-607; David Collins and The New London Day v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety);

 

c)      Record IC-2009-695-8 is exempt from mandatory disclosure pursuant to 1-210(b)(3)(D), G.S., because its disclosure would result in disclosure of investigatory techniques not otherwise known to the general public;

 

d)     Record IC-2009-695-9 and Record IC-2009-695-10, contain social security information, discussed at subsection b), immediately above, and tax withholding information which the Commission has previously declined to order disclosed (for example, Docket #FIC 2000-086; Mitchell D. Poudrier v. Superintendent of Schools, Killingly Public Schools);

 

e)      Record IC-2009-695-11 is exempt from mandatory disclosure pursuant to 1-210(b)(3)(D), G.S., because its disclosure would result in disclosure of investigatory techniques not otherwise known to the general public as well as social security information,  discussed at subsection b), immediately above;

 

f)       Record IC-2009-695-12 contains information that is exempt from mandatory disclosure pursuant to 1-210(b)(3)(D), G.S., because its disclosure would result in disclosure of investigatory techniques not otherwise known to the general public;

 

g)      Record IC-2009-695-13 contains information that is outside the scope of the complainant’s request; and

 

h)      Record IC-2009-695-14 and Record IC-2009-695-15, contains information that is exempt from mandatory disclosure pursuant to 1-210(b)(3)(D), G.S., because their disclosure would result in disclosure of investigatory techniques not otherwise known to the general public.

 

17.  Based upon the conclusions at paragraph 16, above, the Commission declines to address the additional exemptions that were claimed on the in camera index for various in camera records.

 

18.  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.

 

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

 

1.      The complaint is hereby dismissed.

 

2.      The Commission notes that many public records were provided to the complainant as a result of the efforts of respondents’ counsel. Given that Officer Chiarelli’s personnel file comprised about 174 pages, 159 pages were provided in full and six more with some redaction. Less than 10% of the personnel file was filed with the Commission for in camera review. Moreover, Officer Chiarelli is performing a dangerous assignment. The Commission does not want to order disclosure of records that would: a) deter Officer Chiarelli or others from serving in the type of assignment he has been undertaking; or that would b) add to the risks inherent in the type of assignment undertaken by Officer Chiarelli and others.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 28, 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:

 

Glenn M. Conway

7 Elm Street

New Haven, CT 06510

 

Chief, Police Department,

Town of Orange; and Police Department,

Town of Orange

c/o Michael J. Dorney, Esq.

LeClair Ryan, P.C.

555 Long Wharf Drive, 8th Floor

New Haven, CT 06511

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-695FD/paj/8/5/2010