FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on December 21, 2010, at which time the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above captioned matter was consolidated with Docket # FIC 2010-238; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; Docket # FIC 2010-387; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; and Docket # FIC 2010-460; David Weaving v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC, et al., Superior Court, J.D., of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).

 

            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 in May 2010 the complainant submitted three separate records requests to the respondents, all dated May 24, 2010.

 

3.      By a letter dated May 24, 2010 (“the first May 24^th request”), the complainant requested the following from the respondents:

 

[a] All complaint made with reference to bicycles and skateboards in the vicinity of Radio Tower Road and Cook Road on New Haven Road, RT 69, prior to April 27, 2007;

 

[b] All complaint made with reference of kids in the road, in the vicinity of 245 New Haven Road, RT 69 prior to April 27, 2007; and

 

[c] All petitions made prior to April 27, 2007 concerning changing passing zone to a no passing zone in the area of 241 New Haven Road to 251 New Haven Rd., RT 69, Prospect, CT.

 

The complainant stated that the requests were “to include CT Department of Public Safety, CT State Police, Prospect Police, and their agents.”  The complainant also requested a waiver of the copying fees for any records responsive to his first May 24^th request.

 

4.      By a second letter dated May 24, 2010 (“second May 24^th request”), the complainant requested copies of the following documents from the respondents:

 

[a] State Police A&O Manual, Chapter 17;

 

[b] Institute of Police Technology and Management, Traffic Accident Investigation Manual by R.W. Rivers;

 

[c] IPTM Fundamentals of Traffic Accident Reconstruction by John Daily;

 

[d] IPTM Vehicle-Pedestrian-Bicycle Collision Investigation Manual by Tony L. Becker; and

 

[e] CT State Police Accident Investigation Curriculum Learning Module #9-reports and #10 photography.

 

5.      By a third letter dated May 24, 2010 (“third May 24^th request”), the complainant requested copies of the following documents from the respondents:

 

[a] complete investigative reports, notes, statements, statements taken, and interviews from April 27, 2007 through April 27, 2010, by the following police officer…Lt. Salzano #0056, Sgt. Fontanella #172, Sgt. Mark D. Grasso #131, Sgt. K. Stratton #236, TFC Meehan #377, TFC Russo #449, TFC Cretella #1039, Tpr. Fitzgibbon #1428, Off. Douglas Fairchild IC-34, Off. Norman J. George IC-32, and Sgt. Michael Slavin, Waterbury Police Department;

 

[b] toxicology report on the decedent Matthew S. Kenney;

 

[c] complete follow-up investigation and/or reconstruction in the vicinity of 245 New Haven Road during the period between April 27, 2007 through December 5, 2008; and

 

[d] complete copies of photographs, drawings, and DVD’s of incident case #A0700161350 during the period between April 27, 2007 through December 5, 2008.

 

6.      It is found that, by letter dated June 7, 2010, the respondents acknowledged the complainant’s three May 24^th requests, described in paragraphs 3, 4 and 5, above, requested that the complainant provide the respondents with information with regard to his indigency status, and informed him that he would be notified as soon as possible of the results of their review as well as any copying fees. 

 

7.      By letter dated and filed on June 7, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the records, described in paragraphs 3, 4 and 5, above.

 

8.      At the hearing in this matter, the complainant stated that the records described in paragraphs 4.b, 4.c, 4.d and 4.e, above, are no longer at issue in this matter.  Accordingly, only the records, described in paragraphs 3.a, 3.b, 3.c, 4.a, 5.a, 5.b, 5.c and 5.d, above, will be addressed herein.

 

9.      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.

 

10.  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.

 

11.  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.”

 

12.  It is found that the records requested by the complainant, to the extent that they exist, are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

13.    With respect to the requests described in paragraphs 3.a, 3.b and 3.c, above, it is found that the respondents do not maintain or keep on file copies of such records.  Therefore, it is concluded that the respondents did not violate the disclosure provisions of §1-210(a), G.S., with respect to the requests described in paragraphs 3.a, 3.b and 3.c, above.

 

14.  With respect to the request described in paragraph 4.a, above, the respondents contend that they attempted to provide the complainant with copies of the requested record on several occassions.  At the hearing, the respondents stated that copies of such record were sent once to the complainant directly, which were returned to the respondents by the Department of Correction, and then twice to the complainant’s attorney.  The respondents have not heard anything further from the complainant’s attorney regarding such record.

 

15.  It is found that the respondents provided the complainant with records responsive to the complainant’s request described in paragraph 4.a, above, and therefore, it is concluded that the respondents did not violate §1-210(a), G.S., with respect to such request.

 

16.  With respect to the requests described in paragraphs 5.a and 5.c, above, it is found that the respondents provided the complainant with all records responsive to such requests,[1] except for six pages of signed witness statements and a one page medical examiner’s report.

 

17.  The respondents claim that the signed witness statements are exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

18.  Section 1-210(b)(3)(B), G.S., states, 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...signed statements of witnesses....

 

19.  It is found that the signed witness statements are records of a law enforcement agency not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, within the meaning of §1-210(b)(3), G.S.

 

20.  It is concluded that the signed witness statements are permissively exempt from disclosure, and therefore, the respondents did not violate §1-210(a), G.S., with respect to such records. 

 

21.  The respondents claim that the medical examiner’s report is exempt from disclosure pursuant to §19a-411, G.S. 

 

22.     Section 19a-411, G.S., states, in relevant part:

 

(b)  The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the  [Commission on Medicolegal Investigations] (emphasis added).

 

23.  It is found that the copy of the medical examiner’s report retained by the respondents constitutes a record of the chief medical examiner within the meaning §19a-411, G.S.  Because the request for such records was made to the respondents and not to the Office of the Chief Medical Examiner, as required by §19a-411, G.S., it is found that the respondents may not provide such records to the complainant.  See Docket #FIC 2006-374, Burton Weinstein v. Commissioner, State of Connecticut, Department of Public Safety.

 

24.  Consequently, it is concluded that the respondents did not violate the FOI Act when they withheld the medical examiner’s report from the complainant.

 

25.  With respect to the request described in paragraph 5.b, above, it is found that the respondents do not maintain or keep on file copies of such records.  Therefore, it is concluded that the respondents did not violate the disclosure provisions of §1-210(a), G.S., with respect to the  request described in paragraph 5.b, above.

 

26.  With respect to the request described in paragraph 5.d, above, the respondents contend that they attempted to provide the complainant with a CD disk containing photographs on several occassions.  At the hearing, the respondents stated that one copy of the photo CD disk was directly sent to the complainant, which was returned to the respondents by the Department of Correction, and two copies were sent to the complainant’s attorney.  The respondents were informed by the complainant’s attorney that the first disk was unreadable, and therefore, they again sent the photographs to his attorney a second time.  The respondents have not heard anything further from the complainant’s attorney regarding the disk or photographs. 

 

27.  It is found that the respondents provided the complainant with records responsive to the complainant’s request described in paragraphs 5.d, above, and therefore, it is concluded that the respondents did not violate §1-210(a), G.S., with respect to such request. 

 

 

            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.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 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:

 

David Weaving #161065

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT  06080

 

Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of Public Safety

c/o Stephen R. Sarnoski, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-359/FD/cac/3/28/2011