FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION ON REMAND
Bill Kaempffer and the New Haven Register,  
  Complainants  
  against   Docket #FIC 2008-163
Chief, Police Department, City of New Haven,  
  Respondent July 13, 2011
       

 

            The Commission issued notice of the final decision in the above-captioned matter on September 18, 2008, and the respondent thereafter appealed such final decision.  In the course of such appeal, the Superior Court remanded the case to the Commission to consider the issue of whether a civil penalty should be imposed in this case.  On December 3, 2010, the Commission conducted a contested case hearing to determine whether a civil penalty shall be imposed against the respondent.  The respondent appeared, and presented testimony and argument on the complaint.   The complainants did not appear.  

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.      The respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.      By letter dated March 10, 2008 and filed on March 12, 2008, the complainants appealed to this Commission alleging that the respondent failed to comply with this Commission’s order in Docket #FIC 2007-334; Bill Kaempffer and the New Haven Register v. Chief, Police Department, City of New Haven (hereinafter “FIC 2007-334”).

 

3.      The Commission takes administrative notice of the record and decision in FIC 2007-334.  

 

4.      It is found that this Commission issued the following order in FIC 2007-334:

 

The respondent shall forthwith retrieve, or otherwise obtain a copy of, the videotape described in paragraphs 2 and 8, of the findings, above, and provide a copy to the complainants, free of charge.

 

5.      It is found that, at the time of the complainants’ request at issue in Docket #FIC 2007-334, the respondent did not have possession of the videotape described in paragraph 4, above, nor has such videotape been in the possession of the respondent at any time in these proceedings. 

 

6.      It is found that, since the order described in paragraph 4, above, was issued, the respondent has made many attempts to retrieve the videotape in question from the agency which maintains it, that being the Office of the Chief State’s Attorney, and that the Chief State’s Attorney has adamantly refused to provide the respondent with the videotape.

 

            7.   It is found that, in the normal course of matters, there is no process by which the respondent can demand the return of the videotape from the Office of the Chief State’s Attorney, but that, rather, control of the custody of the videotape is managed by the Superior Court.

 

8.      Section 1-206(b)(2), G.S., provides in relevant part:

 

[U]pon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars….

 

            9.   Notwithstanding the Commission’s preliminary finding that the respondent’s failure to comply with the order described in paragraph 4, above, was without reasonable grounds, the Commission now finds, based on the evidence presented at the December 3, 2010, hearing, that the respondent’s failure to comply with such order was not without reasonable grounds. 

 

            10.   Accordingly, the Commission will not impose a civil penalty in this matter. 

 

Based upon the findings and conclusions set forth above, no further order is hereby recommended in this matter. 

 

 

 

 

                 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 13, 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:

 

Bill Kaempffer and the New Haven Register

C/o John M. Walsh, Jr., Esq.

Licari, Walsh & Sklaver, LLC

105 Court Street

New Haven, CT 06511

 

Chief, Police Department, City of New Haven

C/o Kathleen Foster, Esq.

Office of Corporation Counsel

165 Church Street

New Haven, CT 06510

 

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-163FD/sw/7/14/2011