FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|Thomas V. Daily,|
|against||Docket #FIC 2009-710|
Commissioner, State of Connecticut,
Department of Public Safety; and
State of Connecticut, Department
of Public Safety,
|Respondents||October 13, 2010|
The above-captioned matter was heard as a contested case on June 2, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts 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 letter dated October 21, 2009, the complainant made a request for records from the respondents, in which he sought copies of all records related to the following:
a. 1957 Ferrari 250 GT, Spider, Pinin Farina, Cabriolet, Series 1, Vehicle Identification Number 0799 GT;
b. Paul B. Hallinby;
c. Any investigation of Nos. 1 and 2 above, including but not limited to, Case No. 0800265932; and
d. All correspondence, including emails, from Detective Richard Van Tine, or any other person at the Department of Public Safety, regarding Nos. 1, 2 and 3 above, to any person, including, but not limited to, Attorney Oliver Weber, Dr. Andreas Gerber, Gerald Roush, Mark Daniels and Litchfield State’s Attorney’s Office.
3. It is found that, by letter dated October 23, 2009, the respondents acknowledged the complainant’s request for records, and further indicated that, upon receipt of a $16.00 search/copy fee pursuant to §29-10b, G.S., the request would be processed.
4. It is found that, under cover letter dated October 28, 2009, the complainant submitted the required search/copy fee to the respondents.
5. By letter dated November 20, 2009 and filed November 23, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with any records in response to his October 21, 2009 request.
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 . . . (3)
receive a copy of such records in accordance with section 1-212.
8. Section 1-212(a)(1), G.S., provides in relevant part that:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
9. It is found that the respondents maintain the documents described in paragraph 2, above, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S., and that copies of such records must be provided in accordance with §§1-210(a), and 1-212(a), G.S., unless the records, or portions of the records, are exempt from disclosure.
10. At the hearing on this matter, the complainant represented that, prior to the contested case hearing, the parties were able to work out many of their disputes, and the respondents provided him with all of the responsive records in their possession. However, the complainant contended that some of the records the respondents provided to him were redacted. With regard to the redactions, the complainant contended that, while some redactions were made pursuant to §1-210(b)(3)(D), G.S., (law enforcement investigatory techniques), he was only challenging the redactions made pursuant to §1-210(b)(3)(C), G.S., (information to be used in a prospective law enforcement action). In addition, the complainant represented that the respondents had informed him that, prior to his October 21, 2009 request in this case, emails on Detective Van Tine’s computer, which emails were sent or received prior to September 2008, had been erased. The complainant further represented that it was his understanding the respondents had made a FOI request from Department of Information Technology (“DOIT”) for the back-up copies of these emails. In this regard, the complainant represented that it was his understanding that the DPS’s FOI request was in a queue at DOIT waiting to be processed. The complainant desired an order that the FOI request in the hands of DOIT receive expedited processing.
11. With regard to the redactions, the respondents contend that the material redacted from the emails is exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.
12. Section 1-210(b)(3)(C), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the 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. . . (C) information to be used in a prospective law enforcement action. . . .
13. It is found that, when the respondents received this request, it was assigned to Sgt. Seth Mancini for processing.
14. It is found that, when Sgt. Mancini received the request, he reviewed it and promptly forwarded the request to the respondents’ Reports and Records Unit and the respondents’ Bureau of Criminal Investigations so that responsive records could be gathered. It is further found that when records responsive to the request were located they were forwarded to Sgt. Mancini. Specifically, it is found that several hundred pages of emails and an investigative report consisting of more than one thousand pages were gathered and forwarded to Sgt. Mancini. It is further found that Sgt. Mancini reviewed these records for exempt information and made the redactions in the records referred to in paragraph 11, above.
15. It is found that, in determining whether there was an ongoing criminal
investigation, Sgt. Mancini first spoke with Detective Van Time and his
immediate supervisor within the respondents’ Bureau of Criminal
16. It is found that, after speaking with the detectives referred to in paragraph 15, above, Sgt. Mancini made the redactions in the emails referred to in paragraph 11, above, for the purpose of maintaining the confidentiality of “a prospective criminal prosecution and an ongoing investigation.”
17. It is found that, at the present time, there is an ongoing law enforcement investigation with regard to various illegal activities reflected in the requested records. It is further found that, based on the respondents’ testimony, certain individuals—indeed the targets of the criminal investigation--could modify their behavior in a way that could impede the criminal investigation if they knew they were being investigated.
18. The complainant contends that, because the respondents have, in the past, shared the records at issue in an unredacted form with individuals outside of law enforcement, they should not be able to claim an exemption to the disclosure of these records at this time.
19. It is found that, while certain individuals were copied on the email communications that are at issue in this case, all of these individuals were witnesses involved in an ongoing criminal investigation and/or were individuals who were cooperating with law enforcement in connection with such investigation.
20. At the close of the hearing in this case, the respondents were ordered to submit unredacted copies of the emails referred to in paragraph 11, above, to the Commission for an in camera inspection. On June 16, 2010, the respondents complied with the Commission’s order. The in camera records shall be identified at IC-2009-710-1 through IC-2009-710-50.
21. After a careful review of the in camera records, it is found that the information redacted from the in camera records describes a law enforcement agency’s ongoing criminal investigation. It is further found that the respondents’ testimony with regard to the disclosure of this information—to wit, that disclosing this information would provide the targets of the investigation an opportunity to modify their behavior in a way that could thwart the investigation, is credible.
22. Accordingly, it is found that the disclosure of the redacted material would not be in the public’s interest because it would result in the disclosure of information not otherwise available to the public, which would prejudice a prospective law enforcement action.
23. With regard to the FOI request being processed by DOIT, the respondents’ counsel represented that he had been in communication with DOIT regarding the DPS’s FOI request and that DOIT informed him that it processes the FOI requests it receives on a first-in first-out basis. Counsel further represented that DOIT informed him that it has a considerable backlog of FOI requests at this time. Finally, counsel represented that as soon as DOIT provides the records to the DPS, he will inform the complainant of DPS’s receipt of the records. The parties agreed that, once the complainant receives such notification from the DPS, he will make a request for these records from DPS, and, thereafter, if necessary, file a complaint with this Commission with regard to any alleged FOI Act violation.
24. Based on the findings in paragraphs 17, 19, 21, and 22, above, it is concluded that the redacted material referred to in paragraphs 10 and 11, above, is exempt from mandatory disclosure by virtue of §1-210(b)(3)(C), G.S. It is further concluded that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by failing to disclose unredacted 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 dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2010.
Cynthia A. Cannata
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:
Thomas V. Daily
Reid and Riege, P.C.
One Financial Plaza
Hartford, CT 06103
c/o Robert J. Durbin, Esq.
Reid and Riege, P.C.
One Financial Plaza
Hartford, CT 06103
Commissioner, State of Connecticut, Department of Public Safety; and
State of Connecticut, Department of Public Safety
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Cynthia A. Cannata
Acting Clerk of the Commission
 While the parties refer to sixty-six pages of redacted emails, only fifty of the sixty-six pages comprising the respondents’ in camera submission contain redactions pursuant to §1-210(b)(3)(C), G.S. Two pages contain redactions pursuant to §1-210(b)(3)(D), G.S., which are not being challenged in this case. The remaining fourteen pages do not contain any redactions.