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Final Decision FIC2015-581
In the Matter of a Complaint by
FINAL DECISION
Jeremy Shafer and the American Civil
Liberties Union,
     Complainants
     against
Docket #FIC 2015-581
Chief, Police Department, Town of
Stratford; Police Department, Town of
Stratford; and Town of Stratford, 
     Respondents
May 11, 2016

     The above-captioned matter was heard as a contested case on November 16, 2015, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
     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 on July 30, 2015, the complainants requested a copy of the following records:
[a.] all records reflecting the Stratford Police Department’s assessment, purchase, borrowing, or use of IMSI-catching, cell-site simulating, cell phone direction­finding, or cell phone eavesdropping devices such as Stingray, Gossamer, Triggerfish, Kingfish, Amberjack, Harpoon, or Hailstorm.  Your response should include-but not be limited to-all records showing the occasions on which each device was purchased, borrowed, or used; the terms of its purchase, borrowing, or use; and all policies, rules, guidance, or procedures governing the use of such devices;
[b.] all records reflecting the Stratford Police Department’s  assessment, purchase, borrowing, or use of mobile device forensics devices or software, such as are marketed by Cellebrite, Paraben, Katana Forensics, NowSecure, AccessData and others. Your response should include-but not be limited to-all records showing the occasions on which each device or piece of software was purchased, borrowed, or used, as well as the terms of its purchase, borrowing, or use; and all policies, rules, guidance, or procedures governing the use of such devices or software;
[c.] all records reflecting the Stratford Police Department’s assessment, purchase, borrowing, or use of any unmanned aerial vehicles, also known as drones. Your response should include-but not be limited to-all records showing the occasions on which a drone was purchased, borrowed, or used, as well as the terms of its purchase, borrowing, or use; and all policies, rules, guidance, or procedures governing the use of the drone; and
[d.] all records showing applications made to, or amounts received from, any funding source or grant program for funds to be used for the purchase or use of:
[1.] IMSI-catching, cell-site simulating, cell phone direction-finding, or cell phone eavesdropping dev ices such as Stingray, Gossamer, Triggerfish, Kingfish, Amberjack, Harpoon, or Hailstorm;
[2.] mobile device forensics devices or software, such as arc marketed by Cellebrite, Paraben, Katana Forensics, NowSecure, AccessData and others; and
[3.] drones.
     3. It is found that on August 7, 2015, the respondents informed the complainants that the requested records “to the extent they even exist, would be exempt from disclosure under [§1-210(b)(3), G.S.]”
     4. By letter filed September 8, 2015,1  the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to promptly provide them with the records he requested. 

1
Section 1-206(b)(1), G.S., requires a notice of appeal to be filed with the Commission not later than 30 days after the denial of any right conferred by the FOI Act. Thirty days after the respondents denied the complainants' request was September 7, 2015. Section 1-21j-15 of the Regulations of Connecticut State Agencies provides that computation of time periods shall end on the last day of the period so computed, unless it is a day on which the Commission is closed, in which event the period shall run until the end of the next following business day. The Commission was closed in observance of Labor Day on September 7, 2015; therefore, the complainants needed to file their notice of appeal by Tuesday, September 8, 2015, which was the day they did file such notice.
     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, …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:
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.
     7. Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     8. It is concluded that the records requested by the complainants, to the extent that they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     9.  At the hearing in this matter, the respondents refused to confirm or deny that they maintain records that are responsive to the complainants’ request.  The respondents claimed that to do so would disclose an investigatory technique and would encourage criminal behavior.  Nevertheless, upon an order by the hearing officer after the hearing concluded, the respondents submitted responsive records to the Commission for in camera inspection.
     10.   Such records shall be identified as IC-2015-581-1 through IC-2015-581-8.
     11.   The respondents claimed the records are exempt from disclosure pursuant to §1-210(b)(3)(E), G.S., which provides that disclosure is not required of “Records 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 … (E) investigatory techniques not otherwise known to the general public[.]”
     12.   The respondents relied on Kareem Batts v. Chief, Police Department, City of Waterbury, docket #FIC 2006-402 (2007), which found that disclosure of records described as  “Surveillance and Undercover Operations – Policy and Procedures,” and provided to the Commission for in camera inspection, would reveal investigatory techniques not otherwise known to the general public because such records would reveal police department techniques for surveillance of suspects and undercover operations. 
    13.   It is found, however, that the complainants failed to prove that the investigatory techniques at issue in Batts are analogous to the ones at issue in this matter with respect to whether such techniques are known to the general public.
     14.   Moreover, it is found that the respondents in this case testified only in general terms that disclosure would interfere with law enforcement and would allow criminals to adjust their behavior accordingly. 
     15.   It is found, based on the complainant’s exhibits, and upon careful review of IC-2015-581-1 through IC-2015-581-8, that disclosure of the records identified as IC-2015-581-1 through IC-2015-581-8 would not result in the disclosure of investigatory techniques not otherwise known to the general public.  In particular, complainant’s Exhibit E, which was entered into evidence during the hearing in this matter, is a news story published by a local TV station about law enforcement’s widespread use of a software program to discover the contents of cell phones. 
     16.   It is concluded, therefore, that §1-210(b)(3)(E), G.S., does not exempt IC-2015-581-1 through IC-2015-581-8 from disclosure.
     17.   It is concluded that the respondents violated the FOI Act as alleged.
     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  Forthwith, the respondents shall promptly provide to the complainants, free of charge, an unredacted copy of all records responsive to their request.  In addition, the respondents shall conduct a diligent search for any policies, rules, guidance, or procedures governing the use of any of the devices identified by the complainants, and promptly provide a copy of any such records to the complainants, free of charge.  If the respondents do not maintain any such records, they shall inform the complainants of that fact in written correspondence.
  
     2.  Henceforth, the respondents shall strictly comply with §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 11, 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:
Jeremy Shafer and the American Civil Liberties Union
c/o Dan Barrett, Esq.
330 Main Street
1st Floor
Hartford, CT  06106
Chief, Police Department, Town of Stratford; Police Department,
Town of Stratford; and Town of Stratford
c/o Bryan L. LeClerc, Esq.
Berchem, Moses & Devlin, P.C.
75 Broad Street
Milford, CT  06460

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-581/FD/cac/5/11/2016