FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Kenneth Krayeske,  
  Complainant  
  against   Docket #FIC 2010-153
Mayor, City of Hartford; and City of Hartford,  
  Respondents January 28, 2011
       

 

The above-captioned matter was heard as a contested case on August 31, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2010-156; Kenneth Krayeske v. Chief, Police Department, City of Hartord; Police Department, City of Hartford; and City of Hartford; and Docket #FIC 2010-200; Kenneth Krayeske v. Chief, Police Department, City of Hartford; Police Department, City of Hartford; and City of Hartford.  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 February 17, 2010, the complainant made a written request to then-Mayor Eddie Perez for copies of all records “prepared, received, transmitted, collected and/or maintained by any department within the City of Hartford related to “the administrative review about the arrest of Ken Krayeske on January 3, 2007.”  It is found that the respondent mayor ordered the Chief of the Hartford Police Department to perform such review on January 9, 2007.

 

3.      It is found that by letter dated February 25, 2010, the corporation counsel for the City of Hartford informed the complainant that “this office has none of the documents you seek.”  It is found that the corporation counsel directed the complainant to request records pertaining to the administrative review from the police department, not the mayor.  It is found that the corporation counsel did agree to review e-mails and other communications involving the mayor concerning the Krayeske investigation. 

 

4.      By letter filed on March 5, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide access to copies of the records he requested, described in paragraph 2, above.

 

5.      Section 1-200(5), G.S., in relevant part, defines “public records” as follows:

 

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…whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.  (Emphasis added.)

 

6.      Section 1-210(a), G.S., provides, in relevant part:

 

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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

7.      Section 1-212 (a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

8.      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.

 

9.      In support of his claim against the respondent mayor for records maintained by the police department, the complainant cites the Charter of the City of Hartford, Chapter V, 2 (m), which provides in relevant part: 

 

In addition to the powers and duties specified elsewhere in this Charter … the mayor shall examine…all data and property of the city in the possession of any officer, agency, department, commission, board, authority…employee or member of any part of the municipal government…

 

10.    It is found that 2(m) of the charter gives the mayor the power and the duty to examine the records of the police department.  It is found that the mayor is entitled to receive copies of such records by law, within the meaning of 1-200(5), G.S. 

 

11.   It is found that the records of the administrative review, described in paragraph 2, above, are maintained by the police department.  The complainant contends that such records also are the records of the mayor’s office by operation of the city charter.

 

12.   In Lash v. Freedom of Information Commission, 116 Conn. App. 171 (2009), however, the Appellate Court ruled that the First Selectman of the Town of Greenwich may not be held responsible for disclosing the public records in the custody of the law department, even where the town charter places the law department under the “supervision and control” of the First Selectman.  “[The First Selectman] has no duty to maintain or make available the records of the law department.”  Id., at 187.

 

13.   It is concluded that Lash controls the issue in this case, and that the charter of the City of Hartford does not require the mayor to maintain or make available records that are in the custody of other departments within the city.  Although the charter obligates the mayor to examine all data and property in the possession of the municipal government, the mayor “has no duty to maintain or make available the records of [all other departments of the City of Hartford].” Id.

 

14.    Accordingly, it is concluded that the respondent mayor did not violate the FOI Act by failing to provide copies of records in the custody of, and maintained by, other departments within the City of Hartford.

 

15.   It is found that the complainant, after receiving the corporation counsel’s letter of February 25, 2010, described in paragraph 3, above, made an identical request for copies of records to the Chief of the Hartford Police Department. (See Docket #FIC 2010-200; Kenneth Krayeske v. Chief, Police Department, City of Hartford; Police Department, City of Hartford; and City of Hartford.)  It is found that among the records he received in response was a memorandum from the chief to the mayor concerning the complainant’s arrest for breach of peace. 

 

16.   It is found that the respondents provided no evidence that the mayor no longer maintained the memorandum.  In light of the high-profile and controversial nature of the complainant’s arrest, the mayor’s order for an administrative review, and the anticipated litigation by the complainant against the respondents, it is reasonable to infer, and it is found, that the mayor maintained the memorandum on the date of the complainant’s request. 

 

17.   With respect to the e-mails and other communications described in paragraph 3, above, it is found that although the respondents ultimately provided e-mails that mentioned the complainant’s name, none concerned the administrative review of his arrest.  It is found that the respondents offered no evidence as to the diligence of their search for records maintained by the mayor that would be responsive to the complainant’s request. 

 

18.   It is concluded, therefore, that the mayor violated 1-210(a) and 1-212(a), G.S., by failing to provide, at least, the memorandum described in paragraph 15, above.

 

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

 

1.      Forthwith, the respondents shall search for copies of records requested by the complainant, described in paragraphs 2 and 3 of the findings of fact, that are in the custody of, and maintained by, the mayor.  The respondents shall provide copies of any such records to the complainant, and shall provide an affidavit describing the search.  

 

2.      Henceforth, the respondents shall strictly comply with the requirements of 1-210(a) and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its special meeting of January 28, 2011.

 

 

__________________________

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:

 

Kenneth Krayeske

Brown & Welsh, P.C.

530 Preston Avenue

P.O. Box 183

Meriden, CT  06450

 

Mayor, City of Hartford; and City of Hartford

c/o Lori Mizerak, Esq. and Nathalie Feola-Guerrieri, Esq.

Office of the Corporation Counsel

550 Main Street, Room 303

Hartford, CT  06103

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-153/FD/cac/2/1/2011