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Final Decision FIC2011-371
In the Matter of a Complaint by
FINAL DECISION
Robert Cushman, 
     Complainant
     against
Docket #FIC 2011-371
Chief, State of Connecticut, University of
Connecticut, Public Safety Division,
University of Connecticut Police
Department; and State of Connecticut,
Public Safety Division, University of
Connecticut Police Department, 
     Respondents
May 9, 2012

The above-captioned matter was heard as a contested case on January 10, 2012, at which time the complainant 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. On May 25, 2011, the complainant made a written request for a copy of all records concerning the respondents’ case number 11-10014, concerning an arrest on March 6, 2011 for operating under the influence of drugs or alcohol.
3. It is found that the respondents acknowledged the complainant’s request on June 2, 2011.  It is found that on June 15, 2011, the complainant wrote a follow-up e-mail to the respondents and asked about the progress of compliance with his request.
4. It is found that the complainant received an automatic e-mail reply informing him that the person handling his request would be out of the office until June 17, 2011.
5. By letter filed July 15, 2011, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the records he requested. 
6. 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.

7. 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 … receive a copy of such records in accordance with the provisions of section 1-212.
8. 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.”
9. It is concluded that the records requested by the complainants are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
10. The respondents claim §1-210(b)(3)(C), G.S., exempts the records from mandatory disclosure.
11. Section 1-210(b)(3), G.S., 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 … (C) information to be used in a prospective law enforcement action if prejudicial to such action….
12. It is found that the requested records are records of a law enforcement agency not otherwise available to the public which records were compiled in connection with the detection or investigation of crime within the meaning of §1-210(b)(3), G.S.
13. The respondents’ burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).
14. The respondents contend that because the case is still open and has not been officially disposed of by entrance of a nolle or dismissal, the information contained in the requested records could be used in a prospective law enforcement action against the complainant, and disclosure of such information would be prejudicial to such action, by compromising the prosecutor’s discovery rights.
15. The Connecticut Appellate Court has ruled, however, that “the statute … does not require that an investigation be closed before disclosure is required.”  Department of Public Safety, Division of State Police v. FOI Commission, 51 Conn. App. 100, 105 (1998).
16. Furthermore, §1-213(b)(1), G.S., provides that: “[N]othing in the Freedom of Information Act shall be deemed in any manner to…limit the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state.”
17. The Connecticut Supreme Court has ruled that a public agency must disclose records under the FOI Act even if those records are, or might be, subject to the rules of discovery in either federal or state court proceedings.  Chief of Police, Hartford Police Department v. Freedom of Information Commission et al., 252 Conn. 377 (2000).
18. In Chief of Police, Hartford Police Department v. Freedom of Information Commission, the plaintiff claimed that requiring disclosure of the documents in question, which also had been the subject of discovery proceedings in a civil rights action in the United States District Court, would limit the rights of the plaintiff as a litigant under the laws of discovery in violation of §1-213(b)(1), G.S.  The Supreme Court concluded that questions of whether records are disclosable under the FOI Act are separate from questions of whether the same records are or would be discoverable in litigation, and requests for records under the FOI Act are to be determined by reference to the provisions of that Act, irrespective of whether they are or otherwise would be disclosable under the rules of state discovery, whether civil or criminal.   
19. It is found that the respondents failed to prove with sufficient particularity that the requested records were to be used in a prospective law enforcement action, and that disclosure of those records to the complainant would prejudice such action, as required by §1-210(b)(3)(C), G.S.
20. Consequently, it is concluded that the respondents violated §1-210(a), G.S., when they failed to provide the complainant with a copy of the requested records.
21.  It is found that, due to limited storage capabilities, the respondents overwrite most video and audio recordings made in the respondents’ booking rooms between 30 and 45 days after an arrest.  It is found that some video and audio recordings in case number 11-10014 had been overwritten by the time of the complainant’s request, which was more than 45 days after the incident.
22.  It is found that the respondents did not maintain such records at the time of the complainant’s request, and that the respondents did not violate the FOI Act by failing to maintain such records.
23.  However, the Commission reminds the respondents of their duty under §14-227i(a), G.S., which requires law enforcement agencies to maintain for at least two years all records concerning arrests for operating under the influence of, or impaired by, the influence of intoxicating liquor or drugs:
     Notwithstanding any provision of the general statutes, the investigating police department shall maintain any record of a defendant concerning the operation of a motor vehicle by such defendant while under the influence of, or impaired by the consumption of, intoxicating liquor or drugs for a period of not less than two years from the date such defendant was charged with a violation of section 14-227a.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The respondents shall forthwith provide to the complainant all existing records concerning case number 11-10016, as described in his request to the respondents on May 25, 2011.

Approved by Order of the Freedom of Information Commission at its regular meeting of May 9, 2012.
__________________________
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:
Robert Cushman
705 North Mountain Road
Newington, CT  06111
Chief, State of Connecticut, University of Connecticut,
Public Safety Division, University of Connecticut Police
Department; and State of Connecticut, Public Safety
Division, University of Connecticut Police Department
c/o Michael Sullivan
Assistant Attorney General
Office of the Attorney General
University of Connecticut
343 Mansfield Road
Unit 2177
Storrs, CT  06269-2177
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-371/FD/cac/5/9/2012