FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

Matthew Kauffman and the Hartford

Courant; Jeffrey B. Cohen and WNPR/

Connecticut Public Broadcasting, Inc.,

 
  Complainants  
  against   Docket #FIC 2009-751

Daryl K. Roberts, Chief, Police Department,

City of Hartford; Police Department,

City of Hartford; John Rose, Corporation

Counsel, City of Hartford; and

City of Hartford,

 
  Respondents September 22, 2010
       

                        

The above-captioned matter was heard as a contested case on April 13, 2010, at which time the complainants 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), G.S.

 

2.  It is found that, by email dated October 22, 2009, the complainants sent a request to the respondents to “inspect/review whatever documentation was used by the police department to compile its June 4 memo.”  It is found that the subject of the June 4, 2009 memo is gang activity in Hartford, specifically, increased gang activity occurring within the city’s middle schools, and the Hartford Police Department’s (“HPD”) efforts to identify, monitor and suppress such activity.

 

            3.  It is found that, by email dated December 7, 2009, respondent Rose informed the complainants that their request, described in paragraph 2, above, was denied, “because the documents you seek are sensitive police intelligence and/or relate to ongoing investigations and/or are otherwise protected from disclosure by law.”

 

4.  By letter of complaint, dated and received December 10, 2009, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request for records described in paragraph 2, above.  In their complaint, the complainants requested that civil penalties be assessed against the respondents.

 

5.  Prior to the hearing in this matter, counsel for the respondents filed a motion to dismiss Corporation Counsel John Rose as a respondent in this matter.  The complainants objected to such motion.  Argument on the motion was heard at the start of the hearing, and at the conclusion of such argument, the motion was denied.    

 

            6.  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.

 

7.  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.

 

            8.   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.”

 

9.  It is found that the records described in paragraph 2, above, are public records within the meaning of 1-200(5), G.S., and therefore must be disclosed in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

10.  At the hearing in this matter, the respondents offered to provide to the complainants copies of the records responsive to the request, described in paragraph 2, above, with redactions.  It is found that such records consist of a 140 page computer printout of information related to gangs (the “computer printout”), and an additional 36 pages of records created or gathered by police officers concerning gangs and gang activity.  At the hearing, the complainants withdrew their complaint insofar as it relates to the redactions made to the computer printout, and thus, the respondents’ claims of exemption with respect to such computer printout shall not be considered herein.  At the close of the hearing, the hearing officer ordered the respondents to submit the additional 36 pages of records being claimed exempt from disclosure to the Commission for an in camera inspection (the “in camera records”).    

            11.  The respondents contend that the in camera records, or portions thereof, are exempt from disclosure pursuant to 1-210(b)(3)(A),(C),(D) and (E), and 1-210(b)(11), G.S.   In their post-hearing brief, the respondents additionally argue that they are prohibited by 14-10(c), G.S., from disclosing motor vehicle information contained in certain portions of the in camera records.

 

            12.  Section 1-210(b)(3), G.S.,  provides, in relevant part, that

 

 “[N]othing in the FOI Act shall be construed to require disclosure 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known….(C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes….”

 

            13.  Section 1-210(b)(11), G.S., provides, in relevant part, that:

 

“Names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each such student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school.”

 

            14.  Section 14-10(c), G.S., provides, in relevant part:

 

All records of the Department of Motor Vehicles pertaining to the application for registration, and the registration, of motor vehicles of the current or previous three years shall be maintained by the commissioner at the main office of the department. Any such records over three years old may be destroyed at the discretion of the commissioner. (2) Before disclosing personal information pertaining to an applicant or registrant from such motor vehicle records or allowing the inspection of any such record containing such personal information in the course of any transaction conducted at such main office, the commissioner shall ascertain whether such disclosure is authorized under subsection (f) of this section, and require the person or entity making the request to (A) complete an application that shall be on a form prescribed by the commissioner, and (B) provide two forms of acceptable identification. … The commissioner may disclose such personal information or permit the inspection of such record containing such information only if such disclosure is authorized under subsection (f) of this section.

 

            15.  It is found that the in camera records consist of:  notes written by school resource officers concerning gang activity at school(s); completed “Field Interview Cards;” notes of HPD containing “intelligence information;” printouts from various websites depicting gang members and gang information; printouts from law enforcement bulletins containing gang information; motor vehicle information printouts from NCIC; and photographs depicting gang graffiti at school(s).  Such records shall be identified herein as IC 2009-751-001 through IC 2009-751-036.   

 

            16.  With regard to the respondents 1-210(b)(3)(D),G.S., claim of exemption, it is found that the in camera records are records of law enforcement agencies not otherwise available to the public compiled in connection with the detection or investigation of crime.  

 

            17.  Based upon careful review of the in camera records, it is found that such records constitute investigatory techniques not otherwise known to the general public, within the meaning of 1-210(b)(3)(D),G.S.

 

 18.  Based upon the foregoing, it is found that the following records, or portions thereof, are exempt from disclosure:  IC 2009-751-001 through IC 2009-751-036 (all proposed redactions). [1]

 

            19.  It is therefore concluded that the respondents did not violate the FOI Act when they withheld from the complainants the redacted portions of the in camera records, as described in paragraph 18, above.

 

            20.  At the hearing in this matter, the complainants asserted that the respondents’ response to their request, described in paragraph 2, above, was not prompt, and, in fact, was intentionally delayed, and that this conduct on the part of the respondents is part of a pattern designed to avoid the government transparency required by the FOI Act.  According to the complainants, the respondents could and should have reviewed the requested records at the time they were requested, determined which portions were not exempt from disclosure, and provided them with redacted copies of such records in a more timely fashion.

 

            21.  With regard to such assertions, it is found that the request, described in paragraph 2, above, was received by the respondent Roberts, and that Roberts forwarded such request to the respondent Rose, for the purpose of obtaining legal advice with regard to whether the records responsive to such request were exempt from disclosure under the FOI Act.   

 

            22.  It is found that the respondent Roberts “had discussions with” the respondent Rose concerning the records.  At the hearing in this matter, the respondent Rose testified, and it is also found that the respondent Rose did not personally review, at any time prior to the denial of the request, any of the records responsive to the request, described in paragraph 2, above.  However, it is also found that, in an email dated December 7, 2009 to the complainant Cohen, the respondent Rose stated that “I am satisfied that the documents you seek are sensitive police intelligence and/or relate to ongoing investigations and/or are otherwise protected from disclosure by law.”

 

23.  It is found that, after the discussions described in paragraph 22, above, the respondent Roberts made the decision to deny the request, described in paragraph 2, above.

 

24.  Based upon the foregoing, it is found that the motion to dismiss Corporation Counsel John Rose as a respondent in this matter, previously denied, is hereby granted.

 

25.  With regard to the issue of promptness, the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in 1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.  The Commission also gave the following guidance:

 

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act.  Providing such access is therefore as much a part of their mission as their other major functions.  Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority.  Thus, it should take precedence over routine work that has no immediate or pressing deadline.

 

26.  The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

 

27.  It is found that the respondents offered no explanation at the hearing as to why it took them approximately six weeks to respond to the complainants’ request, described in paragraph 2, above, with a blanket denial.  It is found that the failure to review the records to determine whether such records could have been redacted and provided to the complainants at the time such records were requested, resulted in an additional four month delay in access to those portions of such records for which no exemption was claimed.

 

28.  It is found that, based upon the foregoing, the respondents violated the promptness provisions of 1-212(a) and 1-210(a), G.S.   

 

29.  With regard to the complainants’ request for civil penalties against the only remaining individual respondent, Roberts, the Commission declines to impose civil penalties, based upon the facts and circumstances of this case.

 

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

 

            1.  The respondents shall, henceforth, strictly comply with the promptness provisions of 1-212(a) and 1-210(a), G.S.  

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 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:

 

Matthew Kauffman and the

Hartford Courant

285 Broad Street

Hartford, CT 06115

 

Jeffrey B. Cohen and

WNPR/Connecticut Public Broadcasting, Inc.

1049 Asylum Avenue

Hartford, CT 06105

 

Daryl K. Roberts, Chief, Police Department,

City of Hartford; Police Department,

City of Hartford; John Rose, Corporation

Counsel, City of Hartford; and

City of Hartford

c/o Henri Alexandre, Esq.

Crumbie Law Group, LLC

280 Trumbull Street, 21st Floor

Hartford, CT 06103

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-751FD/paj/9/28/2010

 

 

 

 

 

                                                                       

 

 



[1]Because of the finding that the in camera records, or portions thereof, are exempt pursuant to 1-210(b)(3), G.S., the Commission need not consider the respondents’ remaining claims of exemption.