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Final Decision FIC2013-433
In the Matter of a Complaint by
FINAL DECISION
James Torlai,
     Complainant
     against
Docket #FIC 2013-433
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection, Division of State Police;
and State of Connecticut, Department of
Emergency Services and Public Protection,
Division of State Police,
     Respondents
June 11, 2014

     The above-captioned matter was heard as a contested case on April 3, 2014, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above captioned matter was consolidated with Docket #FIC 2013-408, James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police.
     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 letter dated July 1, 2013, the complainant requested that the respondents provide him with copies of “information related to all DUI arrests made” or “processed by L-troop” during the month of June 2013.  It is also found that the complainant specifically requested the “name and address of the person arrested, a list of all charges, the date, time, and location of the arrest and a narrative report of the arrests.”  It is further found that the complainant requested a copy of a “Case Incident Report” and “copies of all test results related [to] the DUI charges . . . . [including] breath test results, urine test results and any blood test results” (hereinafter the "requested records").
     3.  It is found that, by letter dated July 5, 2013, the respondents’ Legal Affairs Unit, acknowledged receipt of the complainant’s request described in paragraph 2, above, and informed the complainant that they would review and process his request “in accordance with the provisions of the Freedom of Information Act.”
     4.  By letter of complaint dated July 11, 2013 and filed July 15, 2013, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly provide all of the records described in paragraph 2, above.
     5.  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.
     6.  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.
     7.  Section 1-212(a), G.S., provides in relevant part that “any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     8.  It is found that the respondents maintain the requested records, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S., and that copies of such records must be provided in accordance with §§1-210(a) and 1-212(a), G.S., unless the records, or portions thereof, are exempt from disclosure.
     9.  It is found that the complainant requested three categories of responsive records pertaining to the June 2013 DUI arrests described in paragraph 2, above, consisting of: (i) a case incident report; (ii) records disclosable under §1-215, G.S., containing the name and address of the person arrested, a list of all charges, the date, time, and location of the arrest and a narrative report of the arrests; and (iii) DUI test result records.
     10. At the hearing on the matter, the complainant contended that, while the respondents provided him with June 2013 arrest records disclosable under §1-215, G.S., as described in paragraph 9.ii, above, the respondents were not prompt in providing such records.  The complainant also contended that the respondents did not provide him with a copy of a responsive case incident report and the DUI test result records required to be disclosed under §14-227i, G.S.
     11. With respect to the complainant’s claim that the respondents failed to provide him with a copy of the case incident report related to the June 2013 arrests, it is found that a case incident report is created by staff of the respondents’ Legal Affairs Unit after inputting specific search criteria into the respondents’ computer system.
     12. It is found, and the complainant conceded, that at the time of his request described in paragraph 2, above, a responsive case incident report related to all DUI arrests “made” or “processed by L-troop” during the month of June 2013 did not exist.  It is also found, and the complainant conceded, that at the time of his request described in paragraph 2, above, he knew that the respondents would have to create the case incident report for June 2013 in order to comply with his request. 
     13. Nevertheless, it is found that on January 9, 2014, in an effort to assist the complainant, a paralegal in the respondents’ Legal Affairs Unit (hereinafter the “paralegal”) requested that another staff member create a case incident report in response to the complainant’s request described in paragraph 9.i, above, and provided copies of such record to the complainant at the hearing on this matter.
     14. It is concluded that because the FOI Act does not require a public agency to create records in response to a request, the respondents did not violate the FOI Act with respect to the records described in paragraph 9.i., above.
     15. With respect to the complainant’s request for the DUI test result records described in paragraph 9.iii, above, the complainant contended that while he believes that the respondents are not required to provide him with copies of such records under the FOI Act if the person arrested has not been convicted of the alleged DUI violation, such DUI test result records are disclosable to the public under §14-227i, G.S.1

1
Although during the hearing on this matter, the complainant stated he agreed with the respondents that the requested DUI test result records, described in paragraph 9.iii, above, are exempt under §1-215, G.S., while the criminal cases are pending, the Commission disagrees. See paragraphs 17 through 19, of this decision.
     16. At the hearing on this matter, the respondents claimed that the DUI test result records described in paragraph 9.iii, above, are exempt from disclosure pursuant to §1-215, G.S.  The respondents also claimed that the complainant is not entitled to copies of such test result records pursuant to §14-227i, G.S., because the complainant is not a person injured in an accident caused by the alleged DUI violation under §14-227a, G.S., is not a party to a claim or proceeding related to the alleged DUI violation, or the legal representative of any such person or party.
     17. With regard to the respondents’ claim that the test result records are exempt from disclosure pursuant to §1-215, G.S., the Commission notes that it previously has ruled that such test results are not exempt from disclosure under that provision.  See James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police, Docket #FIC 2011-285 (March 28, 2012); James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police, Docket #FIC 2009-770 (October 13, 2010).  See also Stephanie Reitz and the Associate Press v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 2010-091 (January 13, 2011)(concluding that §1-215, G.S., does not create an exemption to disclosure for mug shots).2

2
The orders of the Commission to disclose the records at issue in these cases are stayed, pending the Supreme Court's decision in Commissioner, State of Connecticut, Department of Public Safety v. FOIC, SC 19047. See paragraph 18, of this decision.
     18. The Commission notes further that the issue of whether §1-215, G.S., creates an exemption to disclosure or whether it merely sets forth the minimum information that must be disclosed at the time of arrest, is currently on appeal at the Supreme Court.  See Commissioner, State of Connecticut, Department of Public Safety v. FOIC, SC 19047 (briefed and argued, pending decision).  However, pending the final resolution by the Supreme Court, the Commission maintains that its interpretation of §1-215, G.S., as setting forth the minimum required information at the time of arrest, is correct.
     19. Accordingly, it is concluded that the respondents violated the FOI Act by withholding the requested test result records described in paragraph 9.iii, above, from the complainant.
     20. Based on the conclusion in paragraph 19, above, it is not necessary for the Commission to address the complainant’s claim that the records are disclosable under §14-227i, G.S.
     21. At hearing in this matter, the complainant contended that he was not certain that the respondents provided him with all of the responsive records.  The complainant also contended that the respondents’ did not provide the remaining records to him promptly.
     22. It is found that, monthly, the complainant requests DUI arrest records from the respondents and that, therefore, the respondents developed a system specific to responding to the complainant’s monthly requests.
     23. It is found that, on July 5, 2013, the paralegal was assigned the task of responding to the complainant’s request described in paragraph 2, above.
     24. It is found that during the pendency of the complainant’s July 1, 2013 request, the respondents’ paralegal sent copies of responsive records to the complainant on November 18, 2013, December 3, 2013, January 16, 2014 and March 26, 2014, after the paralegal located, reviewed and determined the disclosability of the responsive records.  It is further found that the paralegal mistakenly informed the complainant that two of the responsive records were erased and later provided such records to the complainant on January 16, 2014 and March 26, 2014. 
     25. The respondents’ witness, the paralegal in the Legal Affairs Unit, testified credibly about the thoroughness of her search for the responsive records, described in paragraph 2, above, as well as her efforts to review the records to determine whether to disclose information contained therein.  It is found that her search was diligent.
     26. The Commission is sympathetic to the respondents’ challenges and is aware that the complainant has made many requests for the respondents’ DUI records.  It is found that the paralegal’s delay in providing the complainant with responsive records she mistakenly believed were erased was inadvertent and every effort was made to comply with it as quickly as possible after becoming aware of the error.  Accordingly, it is found that the delay in providing the remaining disclosable records, was reasonable under the facts and circumstances of this case.
     27. Accordingly, it is concluded that the respondents did not violate the FOI Act by failing to provide all of the disclosable records that the complainant requested in a prompt manner.
     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 strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.
     2.  Furthermore, the respondents shall provide the complainant with copies of the DUI test result records described in paragraph 9.iii, above, free of charge.
     3.  Enforcement of paragraph 2 of the order is stayed until resolution of the appeal in Commissioner of Public Safety v. Freedom of Information Commission, et al. (SC 19047) (2014).
Approved by Order of the Freedom of Information Commission at its regular meeting of June 11, 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:
James Torlai
127 Barton Street
Torrington, CT  06790
Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection, Division of State Police; and
State of Connecticut, Department of Emergency Services and
Public Protection, Division of State Police
c/o Terrence M. O’Neill, 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/2013-433/FD/cac/6/11/2014