The above-captioned matter was heard as a contested case on September 15 and 26, 2011, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2011-236; Kevin Brookman v. Daryl K. Roberts, Chief, Police Department, City of Hartford; Ursula Wiebusch, Police Department, City of Hartford; Saundra Kee-Borges, Office of the Corporation Counsel, City of Hartford; and Nathalie Feola-Guerrieri, Office of the Corporation Counsel, City of Hartford.

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 or about April 1, 2011, the complainant made a request, via e-mail, to the respondents for any and all documentation, including the completed investigation report, regarding Lieutenant Ed Dailey and the incident that occurred at or near 17 Rockville Street on or about February 24, 2011 (hereinafter “the incident”). 

3. It is found that the complainant renewed his request on April 26, 2011 and that on April 27, 2011 the respondents denied the complainant’s request claiming that the report was part of an ongoing investigation. 

4. By e-mail sent on April 28, 2011 and received on April 29, 2011, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his records request.  The complainant also requested the imposition of a civil penalty against the respondents.

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, 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. 

6. 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 . . . receive a copy of such records in accordance with section 1-212. 

7. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

8. It is found that the requested records 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 contended that the investigation report is permissibly exempt from disclosure under §1-210(b)(3)(C), G.S., because, while the report was complete, the disciplinary process was not.  The respondents contended that public disclosure of the report would be prejudicial to the respondents’ disciplinary actions against Lieutenant Dailey because the hearing officers, who ordinarily do not review the investigation report until the day of the disciplinary hearing, may prejudge the matter before the hearing.

10. However, the complainant contended that not only did the respondents deny his request for the investigation report, they also failed to provide a copy of any of the related records such as the incident report and the dispatch records which records are separate from the investigation report.

11. At the hearing on this matter, the respondents conceded that the complainant should have been provided with all other records related to the incident, including the incident report and the dispatch records. The respondents offered to provide those records to the complainant, which offer he declined in part because he had already obtained a copy of those records by some other means.

12. It is found that, notwithstanding the respondent’s claim of an exemption to the disclosure of the investigation report, and notwithstanding the fact that the complainant already obtained a copy of that record, the respondents offered to provide a copy of the report to the complainant.  It is found that the complainant declined the offer and requested a hearing and a decision on the merits.

13. With respect to the investigation report, §1-210(b)(3)(C), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:

     Records of law enforcement agencies . . . which records were compiled in connection with the detection or investigation of crime, if disclosure of said records would not be in the public interest because it would result in the disclosure of . . .  information to be used in a prospective law enforcement action if prejudicial to such action.  

14. It is found that the investigation report is a record of a law enforcement agency not otherwise available to the public.  

15.  It is found, however, that the investigation report was not compiled in connection with the detection or investigation of crime, but rather is a non-criminal police internal affairs investigation and a recommendation for the administrative disposition of such investigation.

16. It is concluded, therefore, that the investigation report is not exempt from mandatory disclosure pursuant to §1-210(b)(3)(C), G.S.

17. It is concluded, therefore, that the respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by initially failing to comply with the complainant’s records request.

18. With respect to the complainant’s request for the imposition of a civil penalty, the Commission, in its discretion, declines to consider that request.

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

1. Henceforth, the respondents shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 25, 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:

Kevin Brookman
120 Sigourney Street
Hartford, CT  06105

Daryl  Roberts, Chief, Police Department,
City of Hartford, and City of Hartford
c/o Alexandra Deeb, Esq.
Corporation Counsel
City of Hartford
550 Main Street
Hartford, CT  06103

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission