FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

American News and Information Services,

 
  Complainant  
  against   Docket #FIC 2011-002

Commissioner, State of Connecticut,

Department of Public Safety; and

State of Connecticut,

Department of Public Safety,

 
  Respondents

August 10, 2011

       

 

The above-captioned matter was heard as a contested case on May 10, 2011, at which time the complainant and the 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)(A), G.S.

 

2.  It is found that, by facsimile dated December 22, 2010, counsel for the complainant made a request to the respondents to inspect all Police Accident Reports prepared and signed by either Trooper Charles M. Lavoie or Trooper First Class Timothy Begley as the investigating officer.

 

3.  It is found that, by letter dated December 30, 2010, the respondent Commissioner’s staff informed the complainant that pursuant to 29-10b, G.S., “the fee for a search/copy of each investigative report is $16.00”, and that upon receipt of a check for $6,352.00 for 397 reports, the respondents would process the complainant’s request. The respondents also enclosed for the complainant, without charge, a list of the case numbers of the relevant reports “in case you want to narrow the scope to specific incidents”.

 

4.  By letter dated December 30, 2010 and filed with the Commission on January 4, 2011, the complainant appealed to the Commission, alleging that the respondents “denied me access to inspect the records pending its receipt of $6,352.00.” 

 

5.  Section 1-200(5), G.S., states:

 

“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 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.

 

6.  Section 1-210(a), G.S., states 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. (emphasis added) 

 

7.  It is concluded that the records requested by the complainant are “public records” within the meaning of 1-200(5) and 1-210(a), G.S.

 

8.  Section 29-10b, G.S., states:

 

The Commissioner of Public Safety shall charge the following fees for the item or service indicated:

(1) Each search of the record files made pursuant to a request for a copy of an accident or investigative report which results in no document being produced, six dollars, and on and after July 1, 1993, sixteen dollars.

(2) Each copy of an accident or investigative report, six dollars, and on and after July 1, 1993, sixteen dollars. (emphasis added)

 

9.  At the May 10, 2011 hearing, the complainant introduced evidence suggesting that both Trooper Charles M. Lavoie and Trooper First Class Timothy Begley had given the same municipal police officer lenient warnings when on two separate occasions the municipal police officer was involved with early morning one car accidents involving utility poles. Moreover, the reports in each case did not state the location of the municipal police officer when he was interviewed by the state police. The complainant argued that the search fee in excess of $6,000 was a disincentive to performing a comprehensive review of all Police Accident Reports prepared by Trooper Charles M. Lavoie and Trooper First Class Timothy Begley. It could be logically inferred that the complainant wishes to perform a comparative analysis of the reports prepared by Trooper Charles M. Lavoie and Trooper First Class Timothy Begley in order to judge whether preferential treatment was accorded to the municipal police officer.

 

10.  At the May 10, 2011 hearing, the respondents argued that the 1992 General Assembly intended that 29-10b, G.S., establish a fee for a search for an accident or investigation report. The respondents reasoned that a $16.00 fee was self-evidently in excess of the cost of copying and must have been intended by the General Assembly to reimburse the respondents for the cost of search and retrieval.

 

11.  It is found that the basic form of each accident report is on a electronic database, but that statements and other attachments to individual reports are maintained exclusively in paper files. The paper files must be manually retrieved as part of a search.

 

12.  On the face of the Freedom of Information Act statutes (“FOIA”), there is no fee for a person seeking to inspect records pursuant to 1-210(a), G.S. Section 1-212, G.S., establishes fees to receive and make copies of records, but establishes no fee for inspection of records. Decisions of the Commission have long affirmed the principle of inspection with no charge.  For example, see Docket #FIC 1994-342; Stamper v. Canterbury Board of Selectmen.

 

13.  The question of this case, then, is whether 29-10b, G.S., establishes an exception to the general rule of inspection of public records without a fee where there is a request to inspect accident or investigative reports maintained by the respondents?

 

14.  A similar fee issue for access to records of the respondent Department was resolved by the Supreme Court in Hartford Courant v. FOIC, 261 Conn. 86 (2002). The case specifically involved 29-11(c), 1-211(a) and 1-212(b), G.S., as the statutes applied to an electronic copy of a database of criminal conviction information. Citing the broad policy of favoring the disclosure of information as well as the fee in excess of $20,000,000 that would result from applying the specialized Department of Public Safety fee statute, the Court held that the more generalized FOIA statutes controlled.

 

15.  The overarching legislative policy of the FOIA is one that favors “the open conduct of government and free public access to government records.” (emphasis added)  Wilson v. FOIC, 181 Conn. 324, 328 (1980); Chairman v. FOIC, 217 Conn. 193, 196 (1991); Maher v. FOIC, 192 Conn. 310, 315 (1984). 

 

16.  Consistent with this legislative policy, it is concluded that 29-10b, G.S., is not applicable to the present case because there is neither a search “which results in no document being produced”, as described in subsection (1), nor “a copy of an accident or investigative report”, as described in subsection (2). In the present case, documents would be produced in response to the request, but merely for inspection, not for receiving or making copies. To conclude otherwise in this case would be to establish that the consistency of the application of criminal motor vehicle laws is practically beyond scrutiny by the public. There are no facts here which justify shrouding this part of the respondents’ operations from public view through the application of an inordinate inspection fee.

   

17.  It is concluded that the respondents violated 1-210(a), G.S., when they failed to allow the complainant to inspect the requested records without charge.

 

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

 

1.  Henceforth, the respondents shall permit inspection of accident or investigative reports without charge.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 10, 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:

 

American News and Information Services   

C/o Rachel M. Baird, Esq.

379 Prospect Street

Torrington, CT 06790

 

Commissioner, State of Connecticut,

Department of Public Safety; and

State of Connecticut,

Department of Public Safety

C/o Terrence M. O’Neill, Esq.

110 Sherman Street

Hartford, CT 06105

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2011-002FD/sw/8/18/2011