Final Decision FIC2008-416
In the Matter of a Complaint by
||SECOND FINAL DECISION ON REMAND|
Thomas J. McDonnell,
||Docket #FIC 2008-416|
Commissioner, State of Connecticut,
Department of Public Safety; and
State of Connecticut,
Department of Public Safety,
July 10, 2013
The above-captioned matter was heard as a contested case on October 14, 2008, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. On January 29, 2009, the Commission adopted a final decision in this matter. Notice of such final decision was mailed to the parties on February 5, 2009. The respondents filed an appeal of the final decision with the Superior Court on February 19, 2009. By order dated August 14, 2009, the Superior Court remanded this matter to the Freedom of Information (“FOI”) Commission. On August 25, 2010, the Commission adopted a final decision on remand in this matter, which the respondents again appealed to the Superior Court. By order dated January 3, 2013, the Superior Court again remanded this matter to the Commission to consider the evidence in light of the standard set forth by the court as articulated in the Court’s January 3, 2013 Memorandum of Decision on Motion for Remand.
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 May 8, 2008, the complainant made a written request for
“personal access to the case file and then personally selected copies of documents regarding the homicide of Barbara Gibbons on September 28, 1973 in the town of Canaan, Connecticut, case number B-73-1442-C.”
3. It is found that on May 11, 2008, the complainant made an additional written request for:
a. “Copies of documents that allowed one Peter Reilly and others access to criminal case file B-73-1442-C;”
b. “Copies of records that reflect the dates said persons and any other person had access to said file under the provisions of Freedom of Information laws.. [including] any record that indicates what files they saw and what copies they received, including dates;” and
c. “Copies of legal documents pertaining to case #B-73-1442-C resulting from requests by persons unknown to me requesting copies of documents under the Freedom of Information law.”
4. It is found that on May 15, 2008, the respondents sent the complainant a letter in which they acknowledged receipt of his request for copies of records.
5. It is found that on June 9, 2008, the respondents informed the complainant by letter that §§54-142a and 54-57e [sic], G.S., prohibited disclosure of most of the records he requested, described in paragraphs 2 and 3, above. It is further found that the respondents provided to the complainant “a small portion of the report, consisting primarily of reports since 2000 concerning forensic testing of certain pieces of physical evidence.”
6. By letter dated June 15, 2008 and filed June 19, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by refusing to disclose to him the records he requested, described in paragraphs 2 and 3, above.
7. Section 1-200(5), G.S., defines “public records or files” as:
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.
8. Section 1-210(a), G.S., provides in relevant part:
[e]xcept 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.
9. 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.”
10. It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
11. Section 54-47e, G.S., provides:
Any order authorizing the investigation into the commission of a crime or crimes and any application filed with the [Grand Jury] panel pursuant to section 54-47c or subsection (c) of section 54-47d shall be sealed. The panel shall submit to the Chief Court Administrator a summary of the scope of the investigation, any recommendation as to the court location at which any motions to quash and any contempt proceedings are to be heard and the finding and record of the investigation are to be filed. Such summary shall be public unless the panel determines, by majority vote, that such summary be sealed for purposes of (1) ensuring the public safety of any individual, (2) ensuring that the investigation would not be adversely affected or (3) complying with other provisions of the general statutes or rules of court which prohibit disclosure of such information. Any investigation by the investigatory grand jury shall be conducted in private, provided the panel, by a majority vote, may order the investigation or any portion thereof to be public when such disclosure or order is deemed by the panel to be in the public interest.
12. With respect to whether §54-47e, G.S., applies to the complainant’s request for records, described in paragraphs 2 and 3, above, it is found that the complainant stated in his appeal to this Commission that he does not seek access to records of Grand Jury investigations.
13. Section 54-142a(a), G.S., provides in relevant part:
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….
14. 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…
15. It is found that the records requested by the complainant, described in paragraph 2, above, have not been physically destroyed and are retained by the respondents.
16. It is found that the complainant is neither the accused, within the meaning of §54-142a(a), nor the subject of the records, within the meaning of §54-142a(e), G.S.
17. It is found that all criminal charges against the accused were dismissed with prejudice over 30 years ago.
18. It is concluded that the police and criminal records pertaining to such charges against the accused are deemed to be erased, within the meaning of §54-142a, G.S.
19. The respondents concede that their file of responsive records contain certain documents to which §54-142a, G.S., does not apply. Memorandum of Decision on Motion for Remand, State of Connecticut, Department of Public Safety v. Freedom of Information Commission and Thomas McDonnell, Docket #CV09-4019898, Superior Court, New Britain, J.D., at New Britain (January 3, 2013), *2.
20. The complainant suggests several categories of records to which §54-142a, G.S., would not apply in this matter, such as certain photographs, maps, charts, medical examiner reports in the custody of the respondents, and names of employees assigned to the investigation.
21. “Our courts have held that the term ‘records’ in the Erasure Act does not include evidence obtained by the police in the course of an investigation[.]” Boyles v. Preston, 68 Conn.App. 598, 610 (2002) (erasure statute did not apply to personal videotape). See also, State v. West, 192 Conn. 488, 496-97 (1984) (erasure statute did not apply to fingerprints, photographs or other identification data obtained by police at time of arrest); Penfield v. Venuti, 93 F.R.D. 364 (D.Conn. 1981) (erasure statute did not apply to records compiled in routine caretaking duties of police officers).
22. It is found that the respondents failed to demonstrate that they conducted a diligent search for records to which §54-142a, G.S., does not apply. It is concluded, therefore, that the respondents violated the FOI Act.
23. With respect to the complainant’s request for copies of records, described in paragraph 3.a, above, that gave permission to Peter Reilly and others to access to criminal case file B-73-1442-C, it is found that the complainant received records responsive to his request from the respondents and from a separate request for records to this Commission.
24. With respect to the complainant’s request for copies of records, described in paragraphs 3.b and 3.c, above, concerning access to such records by people other than Peter Reilly and/or his designated representatives, it is found that the complainant’s reference to the provisions of Freedom of Information laws in such paragraphs more precisely refers to the Agreement executed between the FOI Commission and the respondents on April 6, 2005. It is found that the parties entered such agreement to resolve an administrative appeal of the Final Decision in two consolidated FOI Commission decisions: Donald S. Connery v. State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 2003-313, and Ruth Epstein and The Lakeville Journal Company, LLC v. State of Connecticut, Department of Public Safety, Division of State Police, Docket #FIC 2003-320.
25. It is found that the respondents’ witness stated that he did not believe the respondents maintained a record containing who, if anyone, has had access to the records described generally as criminal case file B-73-1442-C. It is further found that the witness agreed at the hearing in this matter to undertake a search to determine with a reasonable degree of certainty whether the respondents maintain a record of who has had access to the file; and, if so, what files they viewed and what copies they received, including dates.
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 make a diligent search for records to which §54-142a, G.S., does not apply. If any such records are located, the respondents shall promptly provide copies of such records to the complainant, free of charge. If the respondents are unable to locate any such records, they shall inform the complainant in writing of such fact and describe their search for such records.
2. The respondents shall forthwith make a diligent search to determine whether they maintain any records responsive to the complainant’s request for records described in paragraphs 3.b and c, of the findings, above. If any such records are located, the respondents shall promptly provide copies of such records to the complainant, free of charge.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 2013.
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:
Thomas J. McDonnell
19 Pilgrim Lane
Eastham, MA 02642
108 Spring Lake Court #205
Vero Beach, FL 32962
Commissioner, State of Connecticut, Department of Public
Safety; and State of Connecticut, Department of Public Safety
c/o Terrence M. O’Neill, 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