FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Apostle Immigrant Services and St. Rose
of Lima Church,
 
  Complainants  
  against   Docket #FIC 2010-218
Leonard Gallo, Chief, Police Department,
Town of East Haven; and Police
Department, Town of East Haven,
 
  Respondents March 9, 2011
       

 

The above-captioned matter was heard as a contested case on November 22, 2010 and January 25, 2011, at which time the complainants and respondents appeared and presented testimony, exhibits and arguments 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 March 11, 2010, the complainants made a 17-part request for a large number of records from the respondents.

 

3.      By letter of complaint filed March 28, 2010, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide them with copies of the records they requested.

 

4.      By the first hearing in this matter, the parties had resolved all issues except for two requests:

 

a.       All records of any communications between Immigration and Customs Enforcement (“ICE”) and the [East Haven Police] Department from June 1, 2008 to the present, including but not limited to records of telephone calls from the Department to ICE and records of individual officers’ decision to call ICE;

 

b.      All records to the present date relating to internal or external investigations or communications about such investigations of the Department’s failure to adhere to its own protocols.

 

5.      Section 1-200(5), G.S., defines “public records” in part 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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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 … 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 complainants are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      With respect to the complainants’ request for records described in paragraph 4.a, above, i.e, records of communications between ICE and the respondents, it is found that on January 18, 2011, the respondents provided records responsive to such request.  It is found, specifically, that the respondents provided a CD containing 33 audio communications between the respondents and ICE.  It is further found that the respondents continued their review of records of telephone communications. 

 

10.   It is found that the respondents did not begin to search for records of telephone communications until well after the complainants appealed to this Commission.  It is found that once begun, the respondents’ search for telephone records was diligent. 

 

11.   It is found that most, if not all of the respondents’ communication with ICE was by telephone; however, it is found that the respondents failed to search for e-mail records and department-issued cellphone records that would also be responsive.

 

12.   Although the respondents attached to their post-hearing brief a letter from the private company that manages the respondents’ information technology services, such letter has not been accepted as an exhibit in this matter.  Moreover, even if the letter were offered and accepted as evidence, it is found that it fails to relieve the respondents of their duty to search for recent e-mails that are responsive to the complainants’ requests.

 

13.   With respect to the complainants’ request for records described in paragraph 4.b, above, i.e., records relating to internal or external investigations, or communications about such investigations, of the Department’s failure to adhere to its own protocols, it is found that the respondents initially performed a completely inadequate search for records responsive to such request and concluded that they maintained no records responsive to the complainants’ request.

 

14.   It is found that following the hearings in this matter, the respondents provided some records in compliance with the complainants’ request. 

 

15.   It is found, however, that the respondents failed to prove that their search for such records was diligent.  It is found that the respondents’ witnesses were vague and evasive in their testimony about whether the respondents maintain responsive records.  It is further found that the respondents performed only the most cursory search initially, and have failed to prove that they have searched for records in a thorough manner. 

 

16.   It is found, therefore, that the respondents have failed to prove that they provided all records responsive to the complainants’ request.

 

17.   Accordingly, it is concluded that the respondents violated 1-210 and 1-212, G.S.

 

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

 

1.      Within 90 days of notice of decision in this matter, the respondents shall continue to search for copies of records requested by the complainants, described in paragraph 4 of the findings of fact.  In particular, the respondents shall search all other records maintained by the respondents for responsive records.  The respondents shall provide copies of such records, if any, to the complainant, and shall provide an affidavit describing their search, including the methods used and the files searched.

 

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 regular meeting of March 9, 2011.

 

 

____________________________

S. Wilson

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:

 

Apostle Immigrant Services and

St. Rose of Lima Church

C/o Michael Wishnie, Esq.

Jerome N. Franks Legal Services

P.O. Box 209090

New Haven, CT 06520

 

Leonard Gallo, Chief, Police Department,

Town of East Haven

C/o Johnathan J. Einhorn, Esq.

412 Orange Street

New Haven, CT 06511

 

and

 

Police Department,

Town of East Haven

C/o Patricia A. Cofrancesco, Esq.

89 Kimberly Avenue

East Haven, CT 06572

 

 

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-218FD/sw/3/14/2011