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Final Decision FIC2014-383
In the Matter of a Complaint by
FINAL DECISION
David Grant,
     Complainant
     against
Docket #FIC 2014-383
Chief, Police Department,
City of Norwich; and Police
Department, City of Norwich,
     Respondents
April 8, 2015

     The above-captioned matter was heard as a contested case on January 5, 2015, and February 5, 2015, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.). 
     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 separate letters dated May 27, 2014, the complainant requested from the respondents: 
a. all records pertaining to his arrest on December 10, 2012, including arrest warrants, witness statements, audio recordings, photographs, and investigation and ballistics reports, as well as records of any “funds given to witnesses with the intention of securing information about [his criminal case], and all records pertaining to any “deals” given to witnesses in [his criminal case]; and
b. all reports of any internal affairs investigations of five named police officers of the respondent police department, and all retirement plans for these individuals; and,
c. the policy of the Norwich Police Department pertaining to case incident reports, informants, interviews, investigation and disposal of records.
     3.  By letters of complaint, each dated June 12, 2014, and filed June 16, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the requests described in paragraph 2, above.
     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 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 . . . (3) receive a copy of such records in accordance with 1-212.
     6.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     7.  It is found that the records responsive to the requests, described in paragraph 2, above, are public records.
     8.  It is found that, by letter dated June 3, 2014, the respondents acknowledged receipt of the requests, described in paragraph 2, above, and informed the complainant that a search for records would be conducted.  The respondents further informed the complainant that witness statements are exempt from disclosure, and that they do not maintain any records of any retirement plans.  
     9.  It is found that, as of the date of the hearing in this matter, the complainant had not received any records responsive to his requests.   
     10. At the hearing in this matter, the respondents claimed that the records pertaining to the complainant’s arrest, responsive to the request described in paragraph 2.a., above, are exempt from disclosure pursuant to the Supreme Court’s decision in Commissioner, Department of Public Safety v. Freedom of Information Commission, 312 Conn. 513 (2014) (“Commissioner”). 
     11. In Commissioner, the Supreme Court ruled that all records pertaining to the arrest of a person are exempt from disclosure during the pendency of the criminal prosecution of such person, except for the “record of the arrest,” described in §1-215, G.S.1

1
Section 1-215(b) defines the "record of the arrest" as (1) the name and address of the person arrested, the date, time and place of arrest and the offense for which the person was arrested and (2) at least one of the following, designated by the law enforcement agency: The arrest report, incident report, news release or other similar report of the arrest of a person.

     12. It is found that the criminal prosecution of the complainant was pending at the time of the hearing in this matter, and that the arrest records requested by the complainant pertain to such criminal prosecution.  It is further found that the complainant did not request “the record of the arrest.”  
     13. It is concluded, based upon the foregoing, that the arrest records, described in paragraph 2.a., above, are exempt from disclosure under the FOI Act. 
     14. With regard to the request, described in paragraph 2.a., above, for records of any “funds” and “deals” provided to witnesses, it is found that the respondents do not maintain such records. 
     15. Accordingly, it is concluded that the respondents did not violate the FOI Act with regard to the request, described in paragraph 2.a, above.
     16. With regard to the requests, described in paragraph 2.b, and 2.c, above, it is found that the respondents, prior to the January 5th hearing in this matter, had not conducted a search for such records.  Therefore, the hearing officer continued the hearing to permit the respondents to conduct a search for such records.
     17. It is found that, after the January 5th hearing in this matter, the respondents conducted a search for records responsive to the request, described in paragraphs 2.b., and 2.c, above, and that they located reports of internal affairs investigations pertaining to four of the five officers whose names the complainant listed in his request.  At the February 5th hearing in this matter, the respondents claimed that certain information contained in such reports, such as social security numbers, home addresses and dates of birth, were exempt from disclosure, pursuant to §1-210(b)(2), G.S.  The complainant did not contest such redactions, and the respondents represented that they would provide a redacted copy of these reports to the complainant. 
     18. It is found that the respondents also located a retirement plan responsive to the request described in paragraph 2.b, above.  The respondents claimed no exemption for such record, and represented that they would provide a copy of it to the complainant.
     19. It is further found that the respondents located a policy responsive to the request described in paragraph 2.c, above.  The respondents claimed no exemption for such record and represented that they would provide a copy of it to the complainant.
     20. At the hearing in this matter, the respondents offered little explanation for the delay in searching for, and providing copies of, the records described in paragraphs 2.b and 2.c, above, to the complainant.  The only evidence presented regarding the almost nine month delay, was the testimony of Sergeant Powers, on behalf of the respondents, who stated that he took over the responsibility for responding to FOI requests in the fall of 2014 and that it took some time to “get up to speed.” 
     21. It is found that the respondents failed to promptly provide copies of the records described in paragraphs 2.b and 2.c, above, to the complainant. 
     22. Accordingly, it is concluded that the respondents violated the promptness provisions of §§1-210(a) and 1-212(a), G.S., with regard to the requests described in paragraphs 2.b and 2.c, above. 
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  If they have not already done so, the respondents shall immediately provide a redacted copy of the internal affairs investigation reports, as described in paragraph 17 of the findings, above, and unredacted copies of the retirement plan and policy, described in paragraphs 18 and 19 of the findings, above, to the complainant.
     2.  Henceforth, the respondents shall strictly comply with the promptness provisions of the FOI Act.

Approved by Order of the Freedom of Information Commission at its regular meeting of April 8, 2015.
__________________________
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:
David Grant # 336400
Northern Correctional Institution
287 Bilton Road
P.O. Box 665
Somers, CT  06071
Chief, Police Department, City of Norwich; and Police
Department, City of Norwich
c/o Michael E. Driscoll, Esq.
Kimberly McGee, Esq.
Brown Jacobson, P.C.
22 Courthouse Square
P.O. Box 391
Norwich, CT  06360
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-383/FD/cac/4/8/2015