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Final Decision FIC2014-447
In the Matter of a Complaint by
FINAL DECISION
Tyriece Fuller,
     Complainant
     against
Docket #FIC 2014-447
Lieutenant J. Paul Vance, Commanding Officer,
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 10, 2015

     The above-captioned matter was heard as a contested case on April 30, 2015, at which time 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 letter dated June 12, 2014, the complainant made a request to the respondents for copies of:  a) police reports for case number 1200310846; b) forensic police reports for case number 1200310846; c) report number 1200310846-00080435; d) police reports and statements of police officers and confidential informants for July 31, 2012 and June 13, 2012 concerning Tyriece Fuller; and e) all arrest warrant affidavits and search warrant affidavits for case number 1200310846 (all together sometimes herein the “requested records”).
     3.  It is found that, by letter dated June 20, 2014, the respondents acknowledged the complainant’s June 12, 2014 request.
     4.  By letter of complaint dated July 2, 2014, and filed on July 14, 2014, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to comply with the request described in paragraph 2, above.  The complainant also alleged that he was indigent and requested that copying fees be waived. Further, he requested that the Commission impose civil penalties on the respondents.
  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 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 1-212.
     7.  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.”
     8.  It is found that, to the extent the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 
     9.  It is found that the respondents checked the Judicial Branch website on July 14, 2014, and determined that six felony charges were pending against the complainant in the Fairfield Superior Court.  By letter dated July 15, 2014, the respondents advised the complainant that, because the related law enforcement actions were still pending, the requested case report was not subject to public disclosure pursuant to §1-215, G.S.
     10. At the hearing, the respondents introduced as an exhibit copies of printouts from the Judicial Branch website dated November 17, 2014, November 21, 2014, January 23, 2015 and March 9, 2015.  Based on this exhibit, it is found that the respondents rechecked the Judicial Branch website on November 17, 2014, November 21, 2014 and January 23, 2015, finding on each occasion that no plea or verdict had been entered concerning the six felony charges pending against the complainant.  However, on March 9, 2015, the respondents found that the Judicial Branch website stated that six verdicts of guilty had been entered on July 23, 2014.  (The complainant was not sentenced until January 26, 2015.)
     11. It is also found that, by letter dated March 24, 2015, the respondents advised the complainant that, upon receipt of the $16.00 fee set forth at §29-10b, G.S., the requested records would be provided to him with some redactions pursuant to §1-210(b)(3)(A), G.S.
     12. It is found that, as of the hearing date, the complainant had not paid the $16.00 fee for investigative reports set forth at §29-10b, G.S.  At the hearing, based upon the balance in his inmate account, the complainant waived his claim that he is indigent and agreed to mail the $16.00 fee for investigative reports to the respondents forthwith.  The respondents specifically declined to waive the $16.00 fee set forth at §29-10b, G.S.  However, contingent upon receipt of the fee, the respondents agreed to mail the requested records with redactions to the complainant by May 8, 2015.  The mailing would include an explanatory letter from counsel and a copy of the entire package would be delivered to the hearing officer to be entered as a late filed exhibit.
     13. Also at the hearing, the respondents claimed various exemptions as the legal basis for redactions to the requested records: a) the exemption for the identity of informants at §1-210(b)(3)(A), G.S.; b) the exemption of data from the files of the National Crime Information Center (“NCIC”); c) §1-210(b)(18), G.S., (relating to photographs of a firearm from a particular crime); and d) Commission precedent (relating to social security numbers and state I.D. numbers). 
     14. Moreover, at the hearing, the respondents entered into evidence an email, dated April 7, 2015, from Craig Washington of the Department of Correction stating: “the picture of a firearm from a particular crime … may cause an issue with the inmate and the victims family who may be incarcerated, especially if the inmate is bragging or showing off what crime he committed…. These acts of behavior are not uncommon…. [w]e have had numerous acts of retaliation from incarcerated family members of victims….”  
     15. Finally, it is found that, as discussed at the hearing, the respondents on May 8, 2015, transmitted to the Commission an extensive package of the requested records with some redactions, together with an explanatory cover letter.  The cover letter stated that redactions were made pursuant to four provisions of the Connecticut statutes and that six categories of records were withheld pursuant to statutory exemption.  However, the cover letter did not include any statement as to whether the complainant had paid the $16 fee or whether a set of the redacted records had been provided to the complainant.
     16. It is also found that the respondents’ May 8, 2015 cover letter stated that all records have been reviewed with the Department of Correction with reference to §1-210(b)(18). Accordingly, the Commissioner of Correction is highly unlikely to withhold any records in the respondents’ May 8, 2015 package if and when the complainant pays the $16.00 fee for investigative reports set forth at §29-10b, G.S.  But because the complainant will not establish any right to receive the records until he pays the fee, the Commission need not adjudicate the claims of exemption herein.
     17. It is concluded that the respondents did not violate the FOIA as alleged.  Specifically, there was no violation on July 14, 2014, when the complaint was filed, because the relevant criminal prosecutions were still pending.  See §1-215, G.S; Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 93 A. 3rd 1142 (2014).
     18. The Commission has a substantial line of cases holding or affirming that a search concerning the status of criminal proceedings, based exclusively on the Judicial Branch website, is not diligent.  Docket #FIC 2009-770, Torlai v. Department of Public Safety; Docket #FIC 2010-355, Torlai v. Department of Public Safety; Docket #FIC 2011-700, Torlai v. Department of Emergency Services and Public Protection; Docket #FIC 2012-728, Torlai v. Department of Emergency Services and Public Protection. These cases remain controlling precedent.
     19. However, in the present case, the respondents also relied on the complainant’s refusal to pay the fee for investigative reports set forth at §29-10b, G.S.  Again, as found at paragraph 11, the respondents advised the complainant by letter dated March 24, 2015 of the $16.00 fee for investigative reports set forth at §29-10b, G.S. 
     20. It is concluded that, because the complainant did not pay the $16 fee up until at least the date of the hearing, there was no violation of the FOIA relating to the June 12, 2014 records request, at least up until this Commission’s hearing on April 30, 2015.
     21. It is also concluded that there are no grounds for the imposition of civil penalties.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  The complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 10, 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:
Tyriece Fuller #291927
Hartford Correctional Center
177 Weston Street
Hartford, CT  06120
Lieutenant J. Paul Vance, Commanding Officer,
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 Stephen R. Sarnoski, Esq.
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-447/FD/cac/6/10/2015