FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Brandon Mitchell,  
  Complainant  
  against   Docket #FIC 2009-719
Chief, Police Department,
City of New London; and
Police Department,
City of New London,
 
  Respondents October 27, 2010
       

 

            The above-captioned matter was heard as a contested case on April 29, 2010, at which time the complainant and 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 on May 27, 2009, the complainant filed a civilian complaint with the New London Police Department, alleging that he sustained injuries and damages during a stop and search incident on May 22, 2009, due to police misconduct.

 

3.      It is found that, by letter dated November 5, 2009, the complainant made a request to the respondents for a copy of the incident report regarding the May 22, 2009 incident, described in paragraph 2, above.

 

4.      It is found that, by letter dated November 12, 2009, the respondents denied the request, described in paragraph 3, above, on the ground that the requested record is exempt from disclosure pursuant to 1-210(b)(3)(A), 1-210(b)(3)(D) and 1-210(b)(3)(G), G.S.

 

5.      By letter dated November 24, 2009, and filed on November 30, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide the complainant with a copy of the record, described in paragraph 3, above. 

 

6.      Section 1-200(5), G.S., defines “public records or files” as:

 

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.       Sections 1-210(a) and 1-211(a), G.S., provide 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….

 

Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the [FOI] Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.

 

8.      Section 1-212(a), 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 record requested by the complainant is a public record and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless it is exempt from disclosure.

 

10.  At the hearing in this matter, the respondents claimed that the record, described in paragraph 3, above, is exempt from disclosure pursuant to 1-210(b)(3)(A), 1-210(b)(3)(D) and 1-210(b)(3)(G), G.S., and provided the record at issue to this Commission for an in camera inspection.  The in camera record has been identified as IC-2009-719-1 through IC-2009-719-3. 

 

11.  Section 1-210(b)(3), G.S., exempts in relevant part:

 

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…(D) investigatory techniques not otherwise known to the general public…or (G) uncorroborated allegations subject to destruction pursuant to section 1-216….

 

12.  In turn, 1-216, G.S., provides:

 

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.

 

13.  The respondents claim that, pursuant to 1-210(b)(3)(G), G.S., in camera records IC-2009-719-1 through IC-2009-719-3 may be withheld from disclosure because they constitute uncorroborated allegations subject to destruction pursuant to 1-216, G.S.

 

14.  In contested case Docket # FIC 1994-291; Rachel Gottlieb and The Hartford Courant v. State of Connecticut, Department of Public Safety, Division of State Police, the Commission found that Black's Law Dictionary, Sixth Edition (1990), defines "corroborate" as "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence.” Ballentine’s Law Dictionary, Third Edition (1969) defines corroborate as "to state facts tending to produce confidence in the truth of a statement made by another."  Funk & Wagnall New Standard Dictionary of the English Language (1946) defines corroborate as "to give increased support to; make more sure or evident."

 

15.  In Docket # FIC 1994-291, the Commission found that the reports at issue contained similar accounts relayed to the respondent by different interviewees concerning the allegations under investigation.  The Commission went on to find that "the requested reports contain allegations which were corroborated,” and therefore such reports were not exempt from disclosure under 1-210(b)(3)(G), G.S.

 

16.  It is found that the records at issue in this case are records of a law enforcement agency not otherwise available to the public and that such records were compiled in connection with the detection or investigation of crime, within the meaning of 1-210(b)(3), G.S. 

 

17.  However, in this case, based upon an in camera review of the records at issue, it is found that such records constitute uncorroborated allegations that an individual has engaged in criminal activity, within the meaning of 1-216, G.S.

 

18.  It is therefore concluded that in camera records IC-2009-719-1 through IC-2009-719- 3 are permissibly exempt from disclosure under 1-210(b)(3)(G) and 1-216, G.S.

 

19.  It is further found that portions of the in camera records would also reveal the identities of informants not otherwise known within the meaning of 1-210(b)(3)(A), G.S., and it is concluded that such portions of the in camera records are likewise permissively exempt from disclosure pursuant to such provision.

 

20.  It is further concluded that the respondents did not violate the disclosure provisions of 1-210(a) and 1-212(a), G.S., by denying the complainant's request.

 

21.  In view of the conclusions reached in paragraphs 18 and 19 above, the Commission need not address the respondents’ claim of exemption with respect to 1-210(b)(3)(D), G.S.

 

 

            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.   Although the Commission was compelled to conclude that the subject records were exempt from disclosure pursuant to 1-210(b)(3)(G), G.S., the Commission also notes that in this case, where the complainant is also the subject of the records, the purpose and intent of the exemption may not be well served. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 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:

 

Brandon Mitchell

c/o Frank A. Manfredi, Esq.

Cotter, Greenfield, Manfredi & Lenes, P.C.

P.O. Box 105

Yantic, CT  06389

 

Chief, Police Department, City of New London; and

Police Department, City of New London

c/o Brian K. Estep, Esq.

Conway, Londregan, Sheehan & Monaco, P.C.

38 Huntington Street

New London, CT 06320

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-719//FD/cac/10/29/2010