Connecticut Freedom of Information Commission

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Final Decision FIC2013-423
In the Matter of a Complaint by
 FINAL DECISION
Edward Peruta,
     Complainant
     against
 Docket #FIC 2013-423
Reuben Bradford, Commissioner,
State of Connecticut, Department
of Emergency Services and Public
Protection; and State of Connecticut,
Department of Emergency Services
and Public Protection,
     Respondents
June 25, 2014

     The above-captioned matter was heard as a contested case on February 3, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

     For purpose of hearing, the above-captioned matter was consolidated with Docket #FIC2013-422, Edward Peruta v. Reuben Bradford, Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection.
     A report of Hearing Officer was issued on May 12, 2014.  The Commission considered such report at its regular meeting of May 28, 2014.  At such time, the Commission remanded the matter to the hearing officer for the specific purpose of  gathering more evidence on the findings of fact in paragraphs 7i and 7j relating to the identity of officers performing under-cover duty. 
     A remanded hearing was conducted on June 5, 2014, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, an exhibit, 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 by e-mail dated June 26, 2013, the complainant made a request for access to inspect the following:
All electronically generated and hard copy public records, (specifically regular and overtime payroll records), for sworn members of your department, (between December 15, 2012 and present), who were assigned to victim(s) families or their residences following the incident at Sandy Hook Elementary School in Newtown, CT on December 14, 2012.  This request is made to determine the specific number of personnel assigned to these specific details, together with the cost(s) of providing sworn personnel for private duty type security details following the Newtown incident on December 14th 2012. 
     3.  By e-mail dated July 10, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI) Act by failing to promptly comply with his request for access to inspect the requested public records.  The complainant requested the imposition of a civil penalty in this matter.
     4.  Section 1-200(5), G.S., provides:
"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.
     5.  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 . . . Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. 
     6.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S. 
     7.  At the hearing on this matter, the respondents testified and it is found that:
a. on July 14, 2013, the respondents’ legal division received the complainant’s request;
b. the respondents’ legal division immediately sent a request to the division of field operations for assistance in responding to the request;
c. by letter dated July 16, 2013, the respondents’ legal division informed the complainant that his request had been received; 
d. on July 17, 2013, the respondents’ legal division sent a request to the human resources division for records responsive to the complainant’s request;
e. on October 15, 2013, the respondents’ legal division sent a reminder to the human resources division;
f. on December 26, 2013, the respondents’ legal division sent another reminder to the human resources division;
g. on December 27, 2013, the respondents’ legal division and the field operations division worked together to resolve the miscommunication between that legal division and the human resources division which confusion the human resources division claimed to have regarding the complainant’s request;
h. on January 2, 2014, the legal division received the records responsive to the complainant’s request from human resources, however review of the records for possible exceptions or exemptions did not occur until later in the month;
i. the legal division understood the complainant’s request to be limited to the payroll data and that it did not become clear that the request included the names of the officers assigned to that security detail until January 27, 2014; and
j. as of the date of the hearing in this matter, the respondents had not provided the complainant with any of the records responsive to his request because they were conducting another review in light of the recent clarification described in paragraph 7i, above.
     8.  At the hearing on this matter, the complainant claimed that the respondent department’s policy and procedures regarding FOI Act requests caused it to unduly delay compliance with his requests for access to public records and thereby denied him prompt access to the records in violation of the FOI Act. The complainant asserted that had the respondents permitted him to make his requests directly to the division(s) that maintain the records he would have had access to inspect the records sooner.
     9.  With respect to prompt compliance to a records requests, the Commission has held that the meaning of the word "promptly" is a particularly fact-based question. In Advisory Opinion # 51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word "promptly," as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. The Commission also gave the following guidance:
The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act. Providing such access is therefore as much a part of their mission as their other major functions. Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority. Thus, it should take precedence over routine work that has no immediate or pressing deadline.
     10. The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities: the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.
     11. At the hearing on this matter, the respondent department contended that it did not unduly delay compliance with the complainant’s request, in part, because between July 17, 2013 and October 15, 2013 the legal division was working to settle a FOI complaint that was filed against it that involved a very voluminous records request and that it continued to respond to the over 1050 other records requests it received during 2013, 38 of which were filed by the complainant.  The respondents also contended that, because the legal division is staffed by only four people who also are responsible for handling all of the legal work of the respondent department, its compliance was prompt under the circumstances.
     12. It is found that nothing in the FOI Act prohibits an agency from delegating the responsibility of responding to and complying with FOI requests to a specific employee or employees and such delegation does not inherently deny prompt access to inspect or to receive copies of public records.  
     13. It is found that, in this case, the respondent department is an extremely large agency with several divisions and to ensure that the disclosure laws, including exceptions and exemptions, are accurately and consistently applied, its policy is that all FOI Act requests be handled through the legal division. 
     14. It is found that the respondents are entitled to ensure that there were no exemptions applicable to the requested records.

     15. It is found that the legal division received the complainant’s request on July 17, 2013 and made every reasonable effort to obtain the records responsive to the complainant’s request from the appropriate divisions within the respondent department.  It is found that the legal division was insufficiently staffed to complete the other agency business and respond to the complainant’s requests sooner. 
     16. It is found, therefore, that, in this case, the respondent department did not unduly delay compliance with the complainant’s request and consequently, the respondents did not violate the disclosure provisions of §1-210(a), G.S., in this regard. 
     17. At the February 3, 2014 hearing, the respondents represented that they will provide the complainant with the requested information except that they would not provide the name of any police officer who was also on an undercover assignment if the case involving that assignment was still pending in court.  The respondents claimed that the disclosure of those names would endanger the officers and jeopardize their undercover activities and that such information is, therefore, exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.
     18. It is found that, at the time of the June 5, 2014, hearing, the respondents had already provided the complainant with a redacted copy of the list of officers assigned to that security detail, with the names of three officers redacted, claiming that those officers were either undercover or that the investigation for which they were undercover was still ongoing with the potential for further undercover work.  The respondents claimed that to disclose an unredacted copy of the list now, after having disclosed a redacted copy of the list, would reveal the true name of officers that are working undercover and put the safety of them, their families, informants and other officers at risk. 
     19. The respondents testified that the officers are involved in investigations of individuals or groups that are highly prone to violence.  They testified that “while the name is only one piece of the mosaic,” disclosing the true identity of an officer who is undercover could lead to the discovery of: their alias and blow his/her cover; information regarding the officer and/or his family; or otherwise compromise the investigation and put that officer, and his/her family, at risk of assault or death.  
     20. Thus, the respondents argued that the redacted names are protected from disclosure by the “law enforcement privilege” pursuant to §1-210(b)(10), G.S.
     21. Section 1-210(b)(10), G.S., provides that nothing in the FOI Act shall require the disclosure of:
Records, tax returns, reports and statements exempted by federal law or the general statutes or communications privileged by the attorney-client relationship, marital relationship, clergy-penitent relationship, doctor-patient relationship, therapist-patient relationship or any other privilege established by the common law or the general statutes, including any such records, tax returns, reports or communications that were created or made prior to the establishment of the applicable privilege under the common law or the general statutes....1
1
In 2011, the Legislature, with the adoption of Public Act 11-242, amended §1-210(b)(10), G.S., to not require mandatory disclosure of the following kinds of records: “Records, tax returns, reports and statements exempted by federal law or [state] the general statutes or communications privileged by the attorney-client relationship, marital relationship, clergy-penitent relationship, doctor-patient relationship, therapist-patient relationship or any other privilege established by the common law or general statutes, including such records, tax returns, reports or communications that were created or made prior to the establishment of the applicable privilege under the common law or the general statutes.” (The underlining signifies language added to the statute, while the bracket signifies language which was deleted.)
     22. The law enforcement privilege has long been recognized by our Supreme Court2, and the purpose of the qualified law enforcement privilege “is in essence to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witnesses and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation…” Edward Smith, Jr., Esq., Administrator, c.t.a., d.b.n. of the Estate of Louis R. LaFontaine vs. Mary Ann Yalanis, Opinion: Memorandum of Decision and Order Re: Motion to Quash and for Protective Order, CV 00 0500379 S, 2003 Conn. Super. LEXIS 3636 December 12, 2003, decided, December 12, 2003, filed, quoting In re Marriage of Daniels, 607 N.E.2d at 1264.
2
Seebeck v. State, 717 A.2d 1161, 246 Conn. 514 (Conn. 1998) Supreme Court of Connecticut, August 25, 1998, 717 A.2d 1161, 246 Conn. 514 (held that trial court did not abuse its discretion in rejecting a discovery request because the information was protected by a qualified law enforcement privilege.)
     23. It is found that while the privilege has been recognized by our courts, it is an evidentiary privilege and its application is limited to discovery.3   However, the court has consistently concluded that questions of whether records are disclosable under the FOI Act are separate from questions of whether the same records are or would be discoverable in litigation, and requests for records under the FOI Act are to be determined by reference to the provisions of that Act, irrespective of whether they are or otherwise would be disclosable under the rules of discovery, whether civil or criminal.4
3
Shuckra v. Sencio, 02-0816539 (court granted protective order with respect to discovery request because information was protected by the law enforcement privilege); Estate of Banks-Dobson v. Calderon, HHDCV126034891S, Superior Court of Connecticut, Judicial District of Hartford, April 15, 2013 (as co-administrators of the estate of Moira Banks-Dobson, brought application for a bill of discovery seeking information from certain defendants); State v. Colon, 864 A.2d 666, 272 Conn. 106 (Conn. 2004) , Supreme Court of Connecticut, December 28, 2004, 864 A.2d 666, 272 Conn. 106 (court concluded trial court properly granted motion to quash subpoena for records because the records were protected under a law enforcement privilege); Walker v. Commissioner of Correction, 930 A.2d 65, 103 Conn.App. 485 (Conn.App. 2007) Appellate Court of Connecticut, September 4, 2007, 930 A.2d 65, 103 Conn.App. 485; Scovish v. O&G Industries, Inc., MMXCV105007944S, Superior Court of Connecticut, March 31, 2010 (granting bill of discovery after concluding that there was no showing that the production of the requested records would violate the privilege.) Seebeck v. State, 717 A.2d 1161, 246 Conn. 514 (Conn. 1998) Supreme Court of Connecticut, August 25, 1998, 717 A.2d 1161, 246 Conn. 514 (held that trial court did not abuse its discretion in rejecting a discovery request because the information was protected by a qualified law enforcement privilege).
4
Chief of Police, Hartford Police Department v. Freedom of Information Commission et al., 252 Conn. 377 (2000). See also §1-213(B)(1), G.S.
     24. Furthermore, it is a well settled principle of statutory construction that “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage." (Citations omitted; internal quotation marks omitted.) Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 760, 830 A.2d 711 (2003) citing Moscone v. Manson, 185 Conn. 124, 133-34, 440 A.2d 848 (1981).
     25. Section 1-210(b)(3)(C), G.S., provides that nothing in the FOI Act shall require the 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 the disclosure of said records would not be in the public interest because it would result in the disclosure of … information to be used in a prospective law enforcement action if prejudicial to such action….
     26. It is found that the language in §1-210(b)(3), G.S., specifically covers the disclosure of law enforcement records and is the controlling provision in this regard. 

     27. It is found that the requested list of names was not compiled in connection with the detection or investigation of a crime but rather it was compiled to track which officers provided personal security for the families for payroll purposes.
     28. Furthermore, it is found that while the list of names requested by the complainant may include names of officers who also had an undercover assignment, the respondents failed to prove that disclosure of that list, unredacted, would inevitably disclose which of those officers had an undercover assignment. 
     29. It is concluded, therefore, that the requested list of names is not exempt from disclosure pursuant to §1-210(b)(3), G.S., and that the respondents violated  the disclosure provisions of §1-210(a), G.S., for providing him with a redacted list of the names.
     30. It is found that while the list of names requested by the complainant includes the names of officers who also had, or are on, an undercover assignment, there is no evidence in the record to prove that simply disclosing that list would, first, disclose that there were any undercover officers named on the list and, second, disclose which of those officers actually had an undercover assignment.  It is found that the respondents exposed those officers to the risks described in paragraph 19, above, (although such risk is appears to be tenuous at best) by redacting information that, in effect, revealed the very information they were trying to conceal.  It is found that had the respondents not made the undercover officers’ names an issue by stating during the hearing that there may be undercover officers named on the list, the list could have simply been disclosed and the undercover officers named on the list and their relationship to the respondent department’s undercover unit and/or assignments would have remained unknown.   Furthermore, had the respondents waited at least until the hearing officer issued her report before taking action in this regard, the potential risk described in paragraph 19, above, would not exist as it does now.
     31. Under the unusual facts and circumstances of this case, whereby the respondents prematurely provided the complainant with a redacted copy of the list and the potential risk (however tenuous it may be), the Commission in its discretion declines to order the disclosure of the list in unredacted form.
     32. Notwithstanding the conclusion in paragraph 29, above, the complainant’s request for a civil penalty will not be considered.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1. The respondents shall forthwith provide the complainant with access to inspect or in lieu thereof, with a copy, of all unredacted records that are responsive to his request, excluding the subject list.
     2. Based upon the fact that the respondents have provided the complainant with a copy of the subject list in redacted form and the Commission’s pronouncement in paragraph 31 of the findings, above, no further order of disclosure is required with respect to such list.    
     3. Henceforth, the respondents shall strictly comply with the disclosure provisions of §1-210(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 25, 2014.
__________________________
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:
Edward Peruta
c/o Rachel Baird, Esq.
8 Church Street
Torrington, CT  06790
Reuben Bradford, Commissioner, State of Connecticut,
Department of Emergency Services and Public
Protection; and State of Connecticut, Department
of Emergency Services and Public Protection
c/o Steven M. Barry, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-423/FD/cac/6/25/2014