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Final Decision FIC2014-449
In the Matter of a Complaint by
FINAL DECISION
James Torlai,
     Complainant
     against
Docket #FIC 2014-449
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
July 8, 2015

     The above-captioned matter was heard as a contested case on May 5, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
     For purposes of the hearing, this matter was initially consolidated with Docket #FIC 2014-510; 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.  However, the complainant withdrew that complaint and this matter was then consolidated with Docket #FIC 2014-708; 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.  However, at the request of the respondents and with the consent of the complainant, the cases were bifurcated and therefore, only the above-captioned case was heard on May 5, 2015.
     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 May 3, 2013, the complainant made a request to the respondents for “information” related to the following:
a. All DUI arrests made by L-Troop during the month of June 2012; and
b. Any DUI arrests processed by L-Troop during the month of June 2012.
The complainant added that for each arrest he wanted the name and address of the person arrested, a list of all charges, a report of the arrest, and all test results related to the DUI charges.
     3.  It is found that the complainant continued to pursue his request and after informing the respondents, by letter dated July 4, 2014, that their compliance was unsatisfactory, the complainant appealed to this Commission, by letter dated July 11, 2014 and filed on July 14, 2014, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide the records he requested promptly and by “withholding records illegally.”
     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, (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.
     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 requested records, described in paragraph 2, above, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     8.  Section 52-142a, G.S., which is Connecticut’s erasure statute, provides in relevant part:
(a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken….
     9.  Section 54-142a(e), G.S., provides in relevant part:
...any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record …information pertaining to any charge erased under any provision of this section….[Any] person charged with the retention and control of such records … shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records...
     10. For purposes of §54-142c, G.S., a “criminal justice agency” is defined as including “any . . . government agency created by statute which is authorized by law and engages, in fact, as its principal function in activities constituting the administration of criminal justice.”
     11. It is found that the respondent department is a criminal justice agency for purposes of §54-142c, G.S.
     12. It is found that the following is the series of correspondences that occurred over a period of approximately two years from the date of the complainant’s May 3, 2013 records request:
a. by letter dated May 7, 2013, the respondents acknowledged receipt of the complainant’s request;
b. by letter dated February 3, 2014, the complainant informed the respondents that his request was still outstanding and reiterated his request;
c. by letter dated February 10, 2014, the respondents informed the complainant that they were actively working on his request;
d. by letter dated May 27, 2014, the complainant informed the respondents that his request was still outstanding and reiterated his request again;
e. by letter dated June 21, 2014, the respondents provided the complainant with 14 records responsive to his request;
f. by letter dated July 4, 2014, the complainant informed the respondents that some of the records provided were illegible and they had not provided all records responsive to his request.  It is found that he requested that legible records be provided along with the missing responsive records.
g. by letter inadvertently dated June rather than July 21, 2014,1  the respondents provided 2 more records responsive to the complainant’s request;

1
The parties stipulated at the hearing that the letter should have been dated July 21, 2014.
h. by e-mail dated August 5, 2014, the respondents provided the complainant with one additional responsive record;
i. by letter dated April 18, 2015, the complainant informed the respondents, among other things, that he believed that he had not been provided with all of the records responsive to his request; and
j. at the May 5, 2015 hearing on this matter, the respondents provided the complainant with yet another record responsive to his request.
     13. It is found that there were records related to a total of 21 arrests (hereinafter “arrest records”) that were responsive to the complainant’s records request.
     14. It is found that, by the time the respondents complied with the complainant’s request, 15 of the 21 arrest records had been erased pursuant to §54-142a and were not provided to the complainant pursuant to §54-142a(e), G.S.
     15. It is found that the respondents provided the complainant with responsive records related to 6 of those arrests and that those records are the only responsive records related to those 6 arrests maintained by the respondents.
     16. It is further found that three other records were outstanding at the time of the hearing in this matter.  Specifically, it is found that arrest record identified as CFS# 1200372619 was provided to the complainant at the hearing on this matter, and that the respondents do not maintain the records responsive to the complainant’s request with respect to the arrest records identified as CFS#S 1200366329 and 1200317964.
     17. However, it is found that, at the time of the complainant’s May 3, 2013 request, none of the requested records had been erased.
     18. At the hearing on this matter, the complainant contended the following:
a. that provision of the records was not prompt;
b. that the respondents are erroneously retroactively applying the erasure provisions; and
c. that the respondents’ provision of illegible records is not in compliance with the disclosure provisions of the FOI Act.
     19. With respect to the complainant’s contention described in paragraph 18(a), above, the respondents testified, and it is found, that:
a. all records requests are complied with by the legal affairs unit of the respondent department;
b. the breadth of the legal unit’s responsibilities is vast and includes providing legal support to approximately 1,700 managers and employees, the Office of the Attorney General and private counsel handling agency matters as well as responding to the hundreds of records requests it receives a year;
c. the legal unit is understaffed (a total of 7 when fully staffed) for the amount of work it has;
d. the staff was overwhelmed with requests and special projects related to the Sandy Hook tragedy during the time it was working to comply with the complainant’s request; and
e. the complainant himself made 42 other records requests during those years to which the legal affairs unit was working to respond.
     20.  It is also found that the legal affairs unit has to rely on other units or divisions to search for and forward responsive records to it and that it began its efforts to compile the records from those other agencies as early as May 20, 2013. 
     21. The Commission has previously opined that the word "promptly" in §1-210, G.S., means "quickly and without undue delay, taking into account all of the factors presented by a particular request . . . [including] the volume of records requested; the amount of personnel time necessary to comply with the request; the time by which the requester needs the information contained in the record; 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 loss of the personnel time involved in complying with the request."  See FOI Commission Advisory Opinion #51 (Jan. 11, 1982).  The Commission also recommended in Advisory Opinion #51 that, if immediate compliance is not possible, the agency should explain the circumstances to the requester.
     22. Weighing all the factors related to the request, it is found that the respondents have not unduly delayed compliance with the complainant’s request in this case and that they did not violate the promptness provisions of §§1-210(a) and 1-212(a), G.S., as alleged by the complainant.
     23. With respect to the complainant’s allegation described in paragraph 18(b), above, it is found that pursuant to the provisions of §§54-142a(a) and 54-142c, G.S., the requested records are exempt from disclosure at this time and cannot be provide to the complainant. See Wood v. Freedom of Information Commission, Superior Court, Docket No. 14-5015956-S, Judicial District of New Britain, (January 21, 2015, Schuman, J.)
     24. With respect to the complainant’s allegation described in paragraph 18(c), above, it is found that the respondents provided the complainant with copies of the requested records as they were reproduced by the copying machine without any intention to provide him with illegible records and it is concluded that the respondents did not violate the disclosure provision of the FOI Act in that regard. 
     25. However, at the hearing on this matter, the respondents agreed to manipulate the settings on the copying machine in effort to produce more legible copies of those records the complainant claims were not.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 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:
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 James W. Caley, 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/2014-449/FD/cac/7/8/2015