FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Ellen L.F. Strauss and Mark Holofcener,  
  Complainants  
  against   Docket #FIC 2010-487
Chief, Police Department, Town of Westport; and
Police Department, Town of Westport,
 
  Respondents May 25, 2011
       

 

The above-captioned matter was heard as a contested case on December 17, 2010, at which time the complainants and respondents appeared 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 July 26, 2010 and July 30, 2010, the complainants made written requests for access to all records concerning the homicide investigation of Joan (Holofcener) Wertkin, who was killed on May 24, 1989.

 

3.      It is found that on July 30, 2010, the respondents informed the complainants that the records were exempt from disclosure pursuant to 1-210(b)(3)(B),(C), and (D), G.S.

 

4.      By letter of complaint filed August 9, 2010, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide them with access to the records they requested. 

 

5.      Section 1-200(5), G.S., 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, …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 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.      The respondents claim the records are exempt from mandatory disclosure pursuant to 1-210(b)(3)(A)(B)(C), and (D), G.S:

 

Nothing in the Freedom of Information Act shall be construed to require 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 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, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public[.]

 

10.   It is found that the records that the complainants requested concern an unsolved homicide investigation by the respondents.

 

11.   It is found that although the case is more than twenty years old, it has become an active investigation within the last two years, since 2008.  It is found that through DNA testing and the application of other forensic advances, as well as recent statements of witnesses, the respondents believe that they have probable cause for the arrest of the perpetrator and are in the final stages of investigation to strengthen their case in order to help ensure a conviction. 

 

12.   It is found that the respondents anticipate a forthcoming arrest in the homicide.

 

13.   It is found that the records were compiled by a law enforcement agency in connection with the detection or investigation of crime.

 

14.   It is found that disclosure of the records requested by the complainants would reveal the identity of witnesses who would be subject to intimidation if their identity were made known to the suspect.

 

15.   It is found that the records requested by the complainants include signed statements of witnesses.

 

16.  It is found that the records requested by the complainants include information to be used in a prospective homicide prosecution and that disclosure of such information would be prejudicial to such prosecution by revealing to the suspect prior to his or her arrest details of the investigation and some of the key evidence that the respondents have acquired.

 

17.   It is also found that disclosure of the records requested by the complainants would reveal investigatory techniques not otherwise known to the general public, including but not limited to individualized strategies for interviewing specific witnesses, and notes about next steps in the investigation.

 

18.   It is concluded, therefore, that 1-210(b)(3), G.S., exempts the records requested by the complainants from mandatory disclosure.

 

19.  It is also concluded that the respondents did not violate the FOI Act as alleged in the complaint.

 

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 May 25, 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:

 

Ellen L. F. Strauss and Mark Holofcener

88 Ladder Hill Road North

Weston, CT  06883

 

Chief, Police Department, Town of Westport; and

Police Department, Town of Westport

c/o Gail Kelly, Esq. and Bryan L. LeClerc, Esq.

Berchem, Moses & Devlin, PC

27 Imperial Avenue

Westport, CT  06880

 

 

 

 

___________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

FIC/2010-487FD/cac/6/1/2011