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Final Decision FIC2015-161
In the Matter of a Complaint by
FINAL DECISION
Cindy L. Robinson,
     Complainant
     against
Docket #FIC 2015-161
Chief, Police Department, Town
of Trumbull; Police Department,
Town of Trumbull; and
Town of Trumbull,
     Respondents
January 27, 2016

     The above-captioned matter was heard as a contested case on July 14, 2015, and September 23, 2015, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2015-500, Cindy Robinson v. Clerk, Town of Trumbull; and Town of Trumbull.
     At the request of the hearing officer, the complainant filed an exhibit after the close of the hearing, consisting of a letter, dated January 23, 2015, which has been marked as complainant’s exhibit A (after-filed); and the respondents filed an exhibit after the close of the hearing, consisting of an affidavit, which has been marked as respondents’ exhibit 8 (after-filed). 
     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 to the respondents1  dated January 23, 2015, the complainant requested to inspect, and to receive a copy of, all documents regarding: 
(a) the Trumbull Police Cadet Post/Explorer Scout Program, including but not limited to policies, procedures, handbooks, requirements, rules, regulations regarding its formation, training of both cadets and any person in a position of authority, interaction between adults and minors, sexual abuse and/or sexual harassment prevention, supervision and/or monitoring of cadets, supervision and/or monitoring of any person in a position of authority or in a supervisory position, descriptions and requirements for cadets, descriptions and requirements for any person in a position of authority or in a supervisory position; 

(b) the employment of William Ruscoe…[as] an advisor and/or supervisor for the Trumbull Police Cadet Post/Explorer program, including but not limited to background check, employment contract, performance reviews, interview notes, complaints, separation documents, letters of recommendation, any and all emails concerning William Ruscoe, minutes of meetings where William Ruscoe’s interaction with minors was discussed, training manuals applicable to William Ruscoe’s employment and/or position; and
(c) the employment of William Ruscoe…[as] a police officer for the Town of Trumbull, including but not limited to background check, employment contract, performance reviews, interview notes, complaints, separation documents, letters of recommendation, any and all emails concerning William Ruscoe, minutes of meetings where William Ruscoe’s interaction with minors was discussed, training manuals applicable to William Ruscoe’s employment and/or position specifically including but not limited to sexual abuse and/or sexual harassment prevention.

1
The complainant also requested the records, described in paragraph 2(c), below, from the Trumbull town clerk. The alleged denial of that request also was appealed to the Commission, and is the subject of Docket #FIC 2015-500.

    
     3.  It is found that, by letter dated January 26, 2015, counsel for the respondents informed the complainant that her request had been received and that “the Town will undertake a reasonably diligent search to identify these records and shall respond within a reasonable time.…”
     4.  By letter of complaint, dated and postmarked February 25, 2015, and filed March 3, 2015, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with the request described in paragraph 2, above.
 
     5.  In their post-hearing brief, the respondents contended that their January 26, 2015 letter did not constitute a denial of the request, and that therefore, the Commission lacks jurisdiction to consider this appeal.
     6.  Section 1-206(a), G.S., provides, in relevant part that:
[a]ny denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request.  Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.
     7.  It is found that the respondents received the request, described in paragraph 2, above, on January 26, 2015.  It is found that the respondents determined that the request was subject to subsections (b) and (c) of §1-214, G.S. (see paragraph 8 of the findings, below).  It is further found that the respondents “fail[ed] to comply with [such] request” within 10 business days of its receipt.  Accordingly, it is concluded that the request was deemed to be denied on February 9, 2015, and that the complainant timely appealed such denial to the Commission.  It is therefore concluded that the Commission has jurisdiction to decide this appeal.
     8.  It is found that, by letter dated April 7, 2015, counsel for the respondents informed Mr. Ruscoe of the request for his personnel file, and of his right to object to disclosure of such records.2

2
The respondents also sent notice of the request to Mr. Ruscoe's attorney, and to the police union representative.

     9.  It is found that the respondents did not receive any objection from Mr. Ruscoe, or anyone on his behalf, to disclosure of his personnel file.
     10.  By letter dated May 22, 2015, counsel for the respondents informed the complainant of “our client’s position on your FOI request.”  According to the May 22nd letter, the respondents determined that the responsive records fell into three categories:  (a) personnel records, (b) internal affairs investigatory files (“IA files”), and (c) miscellaneous records.  The respondents stated that they intended to withhold certain “personnel records” from the complainant in their entirety, pursuant to §1-210(b)(2), G.S., and that they intended to disclose certain other records after “personally identifying information” was redacted therefrom.  The respondents further informed the complainant that there were two IA files, and that one related to sexual misconduct by Mr. Ruscoe.  The respondents informed the complainant that they intended to withhold those portions of the IA file that “contain[s] sexually explicit content,” pursuant to §1-210(b)(2), G.S., and the court’s decisions in Rocque v. Freedom of Information Comm’n, 255 Conn. 651 (2001); and Department of Public Safety, Division of State Police v. Freedom of Information Comm’n, 242 Conn. 79 (1997).  The respondents also informed the complainant that the “miscellaneous” records would be disclosed. 
     11.  It is found that, by letter dated June 3, 2015, the respondents provided copies of some records responsive to the request, described in paragraph 2, above, but did not provide all records identified by the respondents as falling within the categories described in paragraph 10(a), above, or the IA file pertaining to sexual misconduct, described in paragraph 10(b), above. 
     12.  It is found that, by the time of the second hearing in this matter, the respondents had provided to the complainant additional records responsive to the request, described in paragraph 2, above, but had continued to withhold certain other records.  With respect to the requested emails, counsel for the respondents represented, at the second hearing, that they had provided some emails, and that they were continuing to search for, and would produce to the complainant, all non-exempt emails responsive to the requests, described in paragraphs 2(b) and 2(c), above.   
     13.  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. . . or (3) receive a copy of such records in accordance with section 1-212.
     14.   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.”
     15.  It is found that the records, described in paragraph 2, above, are public records within the meaning of §§1-210(a) and 1-212(a), G.S.
     16.  At the hearing in this matter, counsel for the complainant represented that the complainant was satisfied with the records that had been disclosed, and that therefore, the remaining issues in this case were:  the applicability of the exemptions claimed by the respondents with regard to the records that were withheld, and the emails that were requested but had not yet been provided as of the date of the second hearing in this matter.
     17.  The hearing officer ordered the respondents to submit the records they claimed were exempt from disclosure for in camera inspection (the “in camera records”).  The respondents submitted such records to the Commission on August 14, 2015. 
     18.  It is found that the in camera records consist of those documents pertaining to Mr. Ruscoe’s background check, performance reviews, and training, as well as interview notes, investigatory notes, internal affairs report 14-01, state police search warrant application, state police arrest warrant application, state police reports and supplemental state police reports, cell phone extraction reports, text message transcriptions, letters, tax, medical and health insurance information, retirement and pension records, educational records, birth certificate, profile report, ISO claim search report, membership contact lists, cadet rosters, Explorer application documents, Explorer personnel file, cadet police academy medical documents and cadet training documents.  Such records were numbered IC 2015-161-001 through 609, and 700 through 750 by the respondents.3   The respondents claim that each page of the in camera records is exempt from disclosure in its entirety, pursuant to one or more of the following:  §§1-210(b)(1), 1-210(b)(2), 1-210(b)(3), 1-210(b)(5)(B), 1-210(b)(10), 1-210(b)(11), 1-210(b)(17), and 54-86e, G.S.4

3
For reasons unexplained, the respondents did not number the pages consecutively. In addition, although the respondents indicated on the first page of the index that a total of 798 pages were submitted for in camera inspection, only approximately 659 pages were, in fact, submitted. Moreover, a comparison of each in camera record with its description on the index, reveals that the respondents misnumbered several pages and misidentified many pages of records on the index. For the complainant's benefit, therefore, the Commission has attempted, in the footnotes hereto, to identify and clarify the inconsistencies/errors in the in camera submission.

4
On the index to the in camera records, the respondents identified this exemption as §54-83e, G.S. At the hearing in this matter, counsel stated that the reference to §54-83e was made in error, and that the respondents intended to claim §54-86e, G.S.

     19.  At the hearing in this matter, counsel for the complainant stated that the complainant was not seeking records pertaining to tax, medical or health insurance information or records pertaining to retirement and pension benefits.  After careful inspection of the in camera records, it is found that the following records, or portions thereof, contain tax, medical or health insurance information, or information pertaining to retirement and pension benefits:  IC 2015-161-001 through 007; IC 2015-161-038, last two lines only; IC 2015-161-039, first seven lines only; IC 2015-161-047, responses to paragraph 26; IC 2015-161-064, paragraph three, only; IC 2015-161-092, lines 1 through 12, only; IC 2015-161-568 through 570; and IC 2015-161-020 through 33.  In addition, after careful inspection of the in camera records, it is found that the following in camera records are not responsive to the request and therefore need not be disclosed:  IC 2015-161-186, IC 2015-161-189, IC 2015-161-203,  IC 2015-161-207, IC 2015-161-323, IC 2015-161-345,5   IC 2015-161-390,6  IC 2015-161-4387  through 525, IC 2015-161-546 through 567,8  IC 2015-161-571 through 600, IC 2015-161-606 through 609, and 700 through 734.9   Accordingly, none of the records described in this paragraph shall be considered herein. 

5
IC 2015-161-345 is described on the index as interview notes, but, in fact, is an otherwise blank page containing a two-word notation.

6
The respondents listed IC 2015-161-390 twice on the index; the "first" page 390 is described as Trumbull PD reference letter, and the "second" page 390 is described as cell phone extraction report. However, there is, in fact, only one in camera record numbered 390, and such record is a reference letter, which is not responsive to the request, described in paragraph 2, above.
7
IC 2015-161-438 through 525 are an ISO claim search report. IC 2015-161-438 is the first page of the ISO claim search report, although the respondents described IC 2015-161-437 as the first page of such report. At the hearing in this matter, the hearing officer asked the respondents to point to the part of the request to which the ISO claim search report was responsive. Counsel for the respondents indicated that it was not responsive.

8
IC 2015-161-567 is an otherwise blank page containing a two-word notation.

9
IC 2015-161-735 is listed and identified on the index as Trumbull Explorer personnel file; however, no document with that page number was included in the in camera records.

     Section 1-210(b)(3), G.S.
     20.  On the index to the in camera records, the respondents claimed that the following in camera records are exempt from disclosure, pursuant to §1-210(b)(3), G.S.: 
• state police search warrant application10
• state police arrest warrant application11
• witness statement12
• consent to search documents13
• transcript of text conversation
• cell phone extraction report
• inventory14
• state police initial report
• state police supplemental report
• state police report
• photo index
• envelope and letter15

10
The search warrant application is included twice in the in camera records and is described on the index as both Connecticut State Police (CSP) search warrant, and Search and Seizure Warrant Application. IC 2015-161-281 is the first page of the first copy of the search warrant application, although the index incorrectly identifies such page as part of the internal affairs report 14-01.

11
The arrest warrant application is included twice in the in camera records and is described on the index as both CSP Arrest Warrant Application, and Arrest Warrant Application.

12
Specifically, IC 2015-161-293 through 295, IC 2015-161-324 through 325, IC 2015-161-342 through 344, IC 2015-161-352 through 356, and IC 2015-161-385 through 389. The Commission notes that page 293 is misidentified on the index as CSP search warrant, and page 295 is listed twice on the index.

13
Specifically, IC 2015-161-409 through 411, and IC 2016-161-436. The respondents misidentified on the index IC 2015-161-436 as inventory of seized property, and IC 2015-161-411 as CSP report. In addition, the respondents misidentified IC 2015-161-408 and IC 2015-161-435 as consent to search, when, in fact, those pages are cell phone extraction report, and state police search warrant application, respectively.

14
Specifically, IC 2015-161-437. The respondents misidentified this record on the index as ISO claim search report.
15
The envelope and letter are numbered IC 2015-161-346 and 347, and are misidentified on the index as interview notes.

    
     21.  At the the time of the request, §1-210(b)(3), G.S., provided that disclosure is not required of:
[r]ecords 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 (A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) the identity of minor witnesses, (C) signed statements of witnesses, (D) information to be used in a prospective law enforcement action if prejudicial to such action, (E) investigatory techniques not otherwise known to the general public, (F) arrest records of a juvenile, which shall also include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (G) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, voyeurism under section 53a-189a, as amended by public act 15-213], or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or (H) uncorroborated allegations subject to destruction pursuant to section 1-216.
     22.  At the hearing in this matter, counsel for the respondents stated that they  were claiming subsections (A), (B), (C), (D), (E) and (G), for all of the in camera records described in paragraph 20, above.  However, it is found that the respondents offered no evidence at the hearing in this matter to support such claims of exemption. 
     23.  Nevertheless, after careful inspection of the in camera records, described in paragraph 20, above, it is found, without the need for extrinsic evidence, that such records are “records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime.”
     24.  With regard to the witness statements, referenced in paragraph 20, above, it is found, without the need for extrinsic evidence, that such records are “signed statements of witnesses,” and therefore are exempt from disclosure in their entirety, pursuant to 1-210(b)(3)(C), G.S. 
25.  In addition, it is found that certain in camera records, described in paragraph 20, above, contain the names and addresses of victims of a sexual assault, as well as the names of minor witnesses.  Also, it is found that such records contain other information that could identify such victims and witnesses.  It is concluded that only those portions of such records consisting of the names and addresses of such victims and witnesses, are exempt from disclosure pursuant to §1-210(b)(3)(G) and (B), respectively.  However, with regard to such other identifying information, i.e., email addresses, cell phone numbers, parents’ names, boyfriends’ names, and photographs of the victims and their residences, it is found that such information is outside the scope of the request, described in paragraph 2, above, and therefore need not be disclosed.16

16
On the index, the respondents claimed several other exemptions for the witness statements, identified in footnote 12, above, which exemptions need not be considered in light of this conclusion.

     26.  It is found that the respondents failed to prove that disclosure of the in camera records, described in paragraph 20, above, other than the records, and portions of records, described in paragraphs 24 and 25, above, would not be in the public interest because it would result in the disclosure of:  the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, pursuant to §1-210(b)(3)(A), G.S.; information to be used in a prospective law enforcement action if prejudicial to such action, pursuant to §1-210(b)(3)(D), G.S.; or investigatory techniques not otherwise known to the general public, pursuant to §1-210(b)(3)(E), G.S.
     27.  On the index to the in camera records, the respondents also claimed the following in camera records are exempt from disclosure pursuant to §1-210(b)(3), G.S., but did not offer any evidence to support such claim of exemption:
• internal affairs report 14-01
• Trumbull PD interview notes17
• Trumbull PD letters
• email18
• handwritten investigatory notes
• commissioner’s briefing documents
• letter19
• Trumbull PD cadet training document20

17
The respondents numbered two different pages as 349; the "first" page 349 is a page from a state police report, and the "second" page 349 is Trumbull PD interview notes.

18
Specifically, IC 2015-161-736.

19
Specifically, IC 2015-744 and 745.

20
Specifically, IC 2015-161-746 through 750, and IC 2015-161-601 through 605, which the respondents described as Trumbull Explorer Personnel File, on the index

    
     28.  After careful inspection of the in camera records, described in paragraph 27, above, it is found that such records are not “records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime.”  (Emphasis added).  Although some of the records, identified in paragraph 27, above, were compiled by the respondents in connection with an internal investigation into whether certain administrative policies of the police department were violated by Mr. Ruscoe, it is found that such records were not “compiled in connection with the detection or investigation of crime.”  See, e.g., Kevin Litten and the Waterbury Republican-American v. Chief, Police Department, City of Torrington, et al., Docket #FIC 2012-711 (July 24, 2013);  Kevin Brookman v. Daryl Roberts, Chief, Police Department, City of Hartford, Docket #FIC 2011-224 (January 25, 2012); Junta for Progressive Action, et al., v. John A. Danaher III, Commissioner, State of Connecticut, Department of Public Safety, Docket #FIC 2007-416 (November 8, 2007); Tracey Thomas and the Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety, Docket #FIC 1996-153 (November 30, 1996).
     29.  Accordingly, it is found that the in camera records, described in paragraph 27, above, are not exempt from disclosure pursuant to §1-210(b)(3), G.S.  To the extent that such records contain the name and address of a victim of sexual assault or a minor witness, and/or other identifying information, however, it is found that such names, addresses and information are outside the scope of the request, described in paragraph 2, above, and therefore need not be disclosed.
     Section 1-210(b)(2), G.S.
     30.  The respondents also claimed that the following in camera records are exempt from disclosure pursuant to §1-210(b)(2), G.S., which provides, in relevant part, that disclosure is not required of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy:” 
• evaluations21
• birth certificate22
• background hiring file
• training records file23
• internal affairs report 14-01
• envelope and letter
• Trumbull PD interview notes
• handwritten investigatory notes
• letter
• Trumbull PD cadet training document
• state police search warrant application
• state police arrest warrant application
• consent to search
• transcript of text conversation
• cell phone extraction report
• inventory
• state police initial report
• state police supplemental report
• state police report
• photo index
• email
• commissioner’s briefing documents
• Trumbull PD letters

21
Specifically, IC 2015-161-008 through 019.

22
It is found that the birth certificate is outside the scope of the request, described in paragraph 2, above and therefore need not be disclosed.

23
It is found that IC 2015-161-185, IC 2015-161-190, IC 2015-161-202, IC 2015-161-208, IC 2015-161-210 through 211, IC 2015-161-217, IC 2015-161-235, IC 2015-161-238, IC 2015-161-240 through 243, IC 2015-161-245, IC 2015-161-247, IC 2015-161-254 through 256, IC 2015-161-259, and IC 2015-161-262, contain information that does not pertain to Mr. Ruscoe, and therefore is not responsive to the request. Such information may be redacted from such records

    
     31.  “When a claim for exemption is based upon §1-210(b)(2), the person claiming the exemption must meet a twofold burden of proof.  First, the person claiming the exemption must establish that the files are personnel, medical or similar files.  Second, the person claiming the exemption…must also prove that the disclosure of the files would constitute an invasion of personal privacy.”  Rocque v. Freedom of Information Comm’n, supra, at 661, citing Perkins v. Freedom of Information Comm’n, 228 Conn. 158 (1993).   In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements:  first, that the information sought does not pertain to legitimate matters of public concern, and second, that disclosure of such information would be highly offensive to a reasonable person. 
     32.  In Connecticut Alcohol and Drug Abuse Comm’n, v. Freedom of Information Comm’n, 233 Conn. 28, 41 (1995), the Supreme Court further expounded on the threshold test for the exemption contained in §1-210(b)(2), G.S:
Just as a ‘medical’ file of an individual has as one of its principal purposes the furnishing of information for making medical decisions regarding that individual, a ‘personnel’ file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved.  If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is ‘similar’ to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered ‘similar’ to a personnel file for the purposes of §1-[210](b)(2).
     33.  Although the respondents offered no evidence to establish that the records, described in paragraph 30, above, are personnel or medical and similar files, after careful inspection of the in camera records claimed to be exempt from disclosure pursuant to §1-210(b)(2), G.S., it is found that such records are “personnel or medical and similar” files, except for the records described on the index as:  email, commissioner’s briefing documents, and Trumbull PD letters, which, it is found, are not “personnel or medical and similar” files.
   
     34.  Section 1-214(b), G.S., provides, in relevant part, that:
[w]henever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned . . . and (2) the collective bargaining representative, if any, of each employee concerned. Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.  [Emphasis added].
     35.  Section 1-214(c), G.S. provides, in relevant part:
A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned … within seven business days from the receipt by the employee …  [Emphasis added].
     36.  Although, as found in paragraph 8, above, the respondents, by letter dated April 7, 2015, notified Mr. Ruscoe and his representatives of the request at issue, it is found that such notification occurred some three months after they received such request.  It is concluded that the respondents failed to notify Mr. Ruscoe of the request “immediately,” as required by §1-214(b), G.S., and accordingly, it is concluded that the respondents thereby violated §1-214(b), G.S. 
     37.  Moreover, it is found that the respondents offered no evidence at the hearing in this matter from which it could be found that they had a reasonable belief, under §1-214(b), G.S., that disclosure of the records, described in paragraph 30, above, would legally constitute an invasion of Mr. Ruscoe’s personal privacy.  At least with respect to the internal affairs report 14-01, the respondents should have been aware that this Commission has long held that disclosure of reports of internal affairs investigations does not constitute an invasion of personal privacy of the subjects of such reports, except in the rare instance where the misconduct does not relate to official business.  See James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, et al., Docket #FIC 2014-932 (August 26, 2015).
     38.  Nonetheless, even assuming the respondents had such reasonable belief, it is concluded that the respondents violated §1-214(c), G.S., by failing to disclose such records when, as found in paragraph 9, above, they did not receive an objection to disclosure, written or otherwise, from Mr. Ruscoe or his representative.  See Diane Krahm v. First Selectman, Town of Fairfield, et al., Docket #FIC 2010-171 (February 23, 2011).
  
     39.  Having received no objection, the respondents, rather than disclose the records, described in paragraph 30, above, continued to claim such records are exempt from disclosure pursuant to §1-210(b)(2), G.S.  However, it is concluded that any privacy rights under §1-210(b)(2), G.S., belong to Mr. Ruscoe, and not to the respondents, and that the respondents do not have standing to assert Mr. Ruscoe’s privacy rights.  See, e.g., Office of Corporation Counsel of the City of Danbury v. Freedom of Information Comm’n, No. CV-12-6017045-S, 2013 WL 5289790, at *6 (Superior Court, August 23, 2013); John Smith v. Administrator, Town of Putnam, Docket #FIC 2012-564 (August 14, 2013); Kevin Litten and the Waterbury Republican-American v. Chief, Police Department, City of Torrington, supra; Ken Byron and the Hartford Courant v. First Selectman, Town of Westbrook, Docket #FIC 2002-580 (September 10, 2003); Jonathan Kellogg, Trip Jennings and Waterbury Republican-American v. Chief, Police Department, Borough of Naugatuck and Rick Smolicz, Docket #FIC 2001-489 (September 25, 2002).
40.  Even assuming that the respondents had standing to assert Mr. Ruscoe’s privacy rights, it is found that they offered no evidence, at the hearing in this matter, that the information contained in the in camera records, described in paragraph 30, above, does not pertain to legitimate matters of public concern, and that disclosure of such information would be highly offensive to a reasonable person.  Counsel for the respondents argued that the records speak for themselves, such that extrinsic evidence is not required to prove the exemption.  After careful inspection of the in camera records, described in paragraph 30, above, it is found, however, that such records clearly pertain to legitimate matters of public concern.  
      41.  Based on the findings and conclusions in paragraphs 33 through 40, above, it is further found that the in camera records, described in paragraph 30, above, are not exempt from disclosure pursuant to §1-210(b)(2), G.S.24

24
But see footnote 22, above.

     42.  Although the respondents argued at the hearing in this matter, that the internal affairs report 14-01 also is exempt from disclosure pursuant to the Supreme Court’s decision in Rocque, supra, and Department of Public Safety, supra, it is concluded that such decisions are inapplicable to the in camera records in the present case, for the reasons set forth in paragraphs 36 through 40, above.
     43.  Finally, on the index to the in camera records, the respondents claimed that IC 2015-161-746 through 750 (described on the index as Trumbull Explorer training file), and IC 2015-161-601 through 605 (described as Trumbull PD Cadet training file), are exempt from disclosure pursuant to §1-210(b)(2), G.S.  It is found that the respondents offered no evidence at the hearing in this matter from which it could be found that such records are “personnel or medical and similar” files, and it is found therefore that the respondents failed to prove that such records are exempt from disclosure pursuant to §1-210(b)(2), G.S.
     Sections 1-210(b)(10) and 54-86e, G.S.
     44.  The respondents also claimed that the following in camera records are exempt from disclosure in their entirety pursuant to §1-210(b)(10), G.S.:
• background hiring file
• internal affairs report 14-01
• state police search warrant application
• transcription of text conversation
• state police arrest warrant application
• state police supplemental report
• photo index
• cell phone extraction report
• state police initial report
• envelope and letter
• consent to search
• state police report
• inventory
• Trumbull PD letters
• email
• commissioner’s briefing documents
• Trumbull PD interview notes
• handwritten investigatory notes
• letter
• Trumbull PD cadet training documents
     45.  Section 1-210(b)(10), G.S., provides that disclosure is not required of:
[r]ecords, 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.
     46.  At the hearing in this matter, counsel for the respondents, when asked by the hearing officer to identify which portion of 1-210(b)(10), G.S., was being claimed, stated that the in camera records described in paragraph 43, above, are “records…exempted by the general statutes,” specifically §54-86e, G.S.25   Counsel did not claim that any privilege listed in §1-210(b)(10), G.S., applies to any of the in camera records.

25
In their post-hearing brief, the respondents claimed that the records, described in paragraph 46, above, are exempt from disclosure under the Federal Education Rights and Privacy Act ("FERPA"), by way of §1-210(b)(10), G.S. The respondents' FERPA claim, which was not raised at the hearing in this matter, is addressed below beginning at paragraph 54.

     47.  Section 54-86e, G.S., provides that:
The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, or family violence, as defined in section 46b-38a and such other identifying information pertaining to such victim as determined by the court, shall be confidential and shall be disclosed only upon order of the Superior Court, except that (1) such information shall be available to the accused in the same manner and time as such information is available to persons accused of other criminal offenses, and (2) if a protective order is issued in a prosecution under any of said sections, the name and address of the victim, in addition to the information contained in and concerning the issuance of such order, shall be entered in the registry of protective orders pursuant to section 51-5c.
     48.  Based upon the findings and conclusions in paragraphs 25 and 29, above, it is not necessary to determine whether §54-86e, G.S., provides an additional basis for non-disclosure of the names and addresses of victims of sexual assault and other information that could identify such victims.  Although counsel for the respondents argued, at the hearing in this matter, that all of the in camera records, described in paragraph 44, above, are exempt in their entirety under §54-86e, G.S., no legal basis for such argument was cited, nor does the plain language of that statute support such claim.  It is found that the respondents failed to prove that the in camera records, described in paragraph 44, above, are exempt from disclosure in their entirety, pursuant to §54-86e, G.S.
     Section 1-210(b)(5)(B), G.S.
     49.  Next, the respondents claim that certain in camera records, identified by the respondents on the index as educational records, background hiring file, and certain pages of the training records file, are exempt from disclosure in their entirety, pursuant to §1-210(b)(5)(B), G.S.
     50.  Section 1-210(b)(5)(B), G.S., provides that disclosure is not required of “[c]ommercial or financial information given in confidence, not required by statute.”
     51.  The respondents did not offer any evidence at the hearing in this matter with regard to their claim of exemption under §1-210(b)(5)(B), G.S., and did not identify any specific portion of any in camera record to which such exemption might apply. 
     52.  However, after careful inspection of the in camera records, described in paragraph 49, above, it is found that the following in camera records, or portions thereof, are outside the scope of the request, described in paragraph 2, above, and therefore need not be disclosed:  IC 2015-161-038, lines 3 through 7 only; IC 2015-161-040, third paragraph only; IC 2015-161-081, last three lines on page only; IC 2015-161-082, bank account numbers only; IC 2015-161-083, credit card account numbers only; IC 2015-161-091, entire page; IC 2015-161-100, last full paragraph only (beginning with the word “Approximately”); and IC 2015-161-103 through 104, entire pages.  With regard to the remainder of the in camera records, described in paragraph 49, above, however, it is found that the respondents failed to prove that such records are entirely exempt from disclosure pursuant to §1-210(b)(5)(B), G.S.
     Section 1-210(b)(11), G.S.
     53.  The respondents also claimed that certain in camera records containing the names and addresses of students enrolled in any public school or college are exempt from disclosure in their entirety pursuant to §1-210(b)(11), G.S.  However, only the school or college that maintains public records containing such names and addresses may claim this exemption.  See Cherlyn Poindexter v. Director, Department of Human Resources, City of New Haven, Docket #FIC 2010-432 (May 11, 2011).  It is found that the respondents in this case are not a school or a college, and therefore, it is concluded that such exemption does not apply to the in camera records claimed to be exempt from disclosure pursuant to §1-210(b)(11), G.S.  However, as noted in paragraph 25, above, the names and addresses of the victims of sexual assault and minor witnesses are exempt from disclosure under other provisions of the general statutes.
     Section 1-210(b)(17), G.S.
     54.  Next, the respondents claim that the in camera records, identified as educational records on the index, are exempt from disclosure pursuant to §1-210(b)(17), G.S.
     55.  Section 1-210(b)(17), G.S., provides that disclosure is not required of “[e]ducational records which are not subject to disclosure under the Family Educational Rights and Privacy Act, 20 USC 1232g.”
     56.  “Education records” is defined at 20 U.S.C. §1232g(a)(4)(A), as those records, files, documents, and other materials which (i) contain information directly related to a student and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.  (Emphasis added).
     57.  It is found that the respondents are not “an educational agency or institution” or a “person acting for such agency or institution.”
     58.  Accordingly, it is found that IC 2015-161-034 and 035 are not “education records” and therefore are not exempt from disclosure pursuant to §1-210(b)(17), G.S.
     Section 1-210(b)(1), G.S.
     59.  Finally, the respondents claim that the following in camera records are exempt from disclosure pursuant to §1-210(b)(1), G.S.:
• Trumbull PD interview notes
• envelope and letter
• handwritten investigatory notes
• commissioner’s briefing documents
• letter
• Trumbull PD cadet training document26

26
Specifically, IC 2015-161-746 through 750. The respondents did not claim that IC 2015-161-601 through 605, are exempt from disclosure pursuant to §1-210(b)(1), G.S.

    
     60.  Section 1-210(b)(1), G.S., provides that disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”
     61.  It is found that the respondents offered no evidence at the hearing in this matter from which it could be found that the records, described in paragraph 59, above, are preliminary drafts or notes.  In addition, even assuming such records are preliminary drafts or notes, it is found that the respondents offered no evidence that they had made a determination that the public interest in withholding such preliminary drafts or notes clearly outweighed the public interest in disclosure. 
     62.  Accordingly, it is found that the respondents failed to prove that the in camera records, described in paragraph 59, above, are exempt from disclosure pursuant to §1-210(b)(1), G.S.
     63.  Additionally, it is found that some of the in camera records include motor vehicle identification numbers, driver’s license number, and social security numbers.  It is found, however, that such information is outside the scope of the request, described in paragraph 2, above, and therefore need not be disclosed.
     64.  Based upon all of the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to disclose all of the in camera records to the complainant, except (a) those records or portions thereof, identified in paragraphs 19, 52 and 63 above; (b) the signed witness statements, specifically identified in footnote 12, above; (c) those portions only of the in camera records, described in paragraphs 20 and 27, above, containing the names and addresses of victims of sexual assault and minor witnesses and other identifying information specifically described in paragraph 25, above; and (d) those portions only of the in camera records, identified in footnote 22, above, that do not pertain to Mr. Ruscoe.
     65.  With regard to the requests for emails, described in paragraphs 2(b) and (c), above, it is found that, as of the date of the second hearing in this matter, the respondents had provided some emails responsive to such requests, and that they had not yet reviewed all remaining emails potentially responsive to such requests.  It is therefore found that the respondents failed to prove that they provided all non-exempt responsive emails to the complainant.
     66.  It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to disclose the non-exempt emails, responsive 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.  Within two weeks of the date of the Notice of Final Decision, the respondents shall provide a complete copy of the in camera records to the complainant, free of charge. 
     2.  In complying with paragraph 1 of the order, above, the respondents may withhold the records, or portions thereof, identified in paragraphs 19, 52 and 63 of the findings, above, and the signed witness statements, specifically identified in footnote 12, above.  In addition, the respondents may redact from the in camera records the information identified in footnote 22, above.  Finally, the respondents may redact from the records, described in paragraphs 20 and 27 of the findings, above, the names and addresses of victims of sexual assault and minor witnesses, as well as the information specifically described in paragraph 25 of the findings, above, that may identify them. 
     3.  Within eight weeks of the date of the Notice of Final Decision, the respondents shall provide a copy of all non-exempt emails, responsive to the request, described in paragraphs 2(b) and 2(c), of the findings, above.  The respondents shall provide responsive records on a rolling basis as they become available and shall complete compliance within such eight week period.  To the extent that the respondents determine that any of the responsive emails are exempt from disclosure, they shall provide to the complainant a list of such emails, and indicate the exemption claimed as the basis for the withholding of such records.
     4.  Henceforth, the respondent shall strictly comply with the requirements of §1-214(b) and (c), 1-210(a), and 1-212(a), G.S.
     5.  The respondents are admonished for the lack of attention to detail evident in their in camera submission.  The submission of an in camera index that is replete with errors is unfair to the complainants, and disrespectful to this Commission and its process.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 2016.

__________________________
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:
Cindy L. Robinson
c/o Timothy M. Ramsey, Esq.
Tremont, Sheldon, Robinson, Mahoney, P.C.
64 Lyon Terrace
Bridgeport, CT  06604
Chief, Police Department, Town of Trumbull; Police
Department, Town of Trumbull; and Town of Trumbull
c/o Darin L. Callahan, Esq.
Dennis J. Kokenos, Esq.
Owens, Schine & Nicola, P.C.
799 Silver Lane
Trumbull, CT  06611

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-161/FD/cac/1/27/2016