Re: 1/23/02 - Proposed Final Decision of the FOIC Orders NHPD to Release Large Portions of Jovin Case File and 911 Tape
Note: This document was scanned and transcribed from paper, not cut and pasted from the FOIC web site.
FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
18-20 Trinity Street Hartford, CT 06106
Telephone: (860) 566-5682 Fax: (860) 566-6474
Jeffrey Mitchell,
Complainant(s)
against
Chief, Police Department, City of New Haven,
Respondent(s)
Notice of Meeting
Docket #FIC 2001-131
January 23, 2002
Transmittal of Proposed Final Decision of Second Hearing Officer dated January 23. 2002
In accordance with Section 4-179 of the Connecticut General Statutes, the Freedom of Information Commission hereby transmits to you the January 23, 2002 proposed finding and decision prepared by the second hearing officer in the above-captioned matter. This will notify you that the Commission will consider this matter for disposition at its meeting which will be held in the Freedom of Information Commission Hearing Room, 18-20 Trinity Street, 1st floor, Hartford, Connecticut, at 2:00 p.m. on Wednesday, February 13, 2002. At that time and place you will be allowed to offer oral argument concerning this proposed finding and order. Oral argument shall be limited to ten (10) minutes. For good cause shown, however, the Commission may increase the period of time for argument. A request for additional time must be made in writing and should be filed with the Commission on or before February 5, 2002.
Although a brief or memorandum of law is not required, if you decide to submit such a document, the Commission requests that an original and nine (9) copies be filed on or before February 5, 2002. PLEASE NOTE: Any correspondence, brief or memorandum directed to the Commissioners by any party or representative of any party MUST BE (1) copied to all parties, or if the parties are represented, to such representatives, (2) include a notation indicating such notice to all parties or their representatives and (3) be limited to argument. NO NEW EVIDENCE MAY BE SUBMITTED.
If you have already filed a brief or memorandum with the hearing officer and wish to have that document distributed to each member of the Commission, it is requested that ten (10) copies be filed on or before February 5, 2002, and that notice be given to all parties, or if the parties are represented, to their representatives that such previously filed document is being submitted to the Commissioners for review.
By Order of the Freedom of Information Commission
[signature]
Dolores E. Tarnowski, Clerk of the Commission
Notice to:
Jeffrey Mitchell
Donna Chance Dowdie, Esq.
James G. Clark, Esq.
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FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
Jeffrey Mitchell,
Complainant
against
Chief, Police Department, City of New Haven
Respondent
Report of Second Hearing
Officer
Docket #FIC 2001-131
January 23, 2002
The above-captioned matter was heard as a contested case on April 16, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. Docket # FIC 2001-147, Les Gura and The Hartford Courant v. Chief. Police Department. City of New Haven, was consolidated with the above-captioned matter for purposes of hearing. At the hearing, Hearing Officer Barbara E. Housen granted the office of the State's Attorney for the Judicial District of New Haven intervenor status. Hearing Officer Housen issued a Report of Hearing Officer dated August 28, 2001, which report was considered at a meeting of the Commission on October 10, 2001. At the October 10, 2001 meeting, this matter was remanded to a member of the Commission to conduct an in camera review of the records at issue as a new hearing officer and report back to the Commission. Thereafter, Commissioner Dennis E. O'Connor, as hearing officer, conducted an in camera review of the records at issue.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. It is found that, on February 1, 2001, the complainant requested that the respondent provide him with copies of:
a. the "911" call made approximately at 9:55 p.m. on Friday December 4, 1998 in connection with the discovery of the body of Yale University student Suzanne Jovin; and
b. all information provided to Andrew Rosenzweig, a private investigator not in the employ of the New Haven Police Department.
(hereinafter "requested records").
3. It is found that by letter dated February 23, 2001 the respondent denied the request, claiming that there is an ongoing murder investigation, that the case is "open" and that release of the requested records would be prejudicial to future law enforcement action.
4. Having failed to receive the requested records, the complainant then appealed to the Commission on March 2, 2001, alleging that the respondent violated the Freedom of Information (hereinafter "FOI") Act by denying him a copy of the requested records.
5. 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212. [Emphasis added.]
6. At the hearing on this matter, it was clarified that the records to which the complainant referred in that portion of his letter of request described in paragraph 2b., above, were all of the additional records compiled in connection with the Suzanne Jovin investigation and that the respondent understood that to be the nature of the request, notwithstanding the respondent's claim that he had not provided records to Andrew Rosenzweig. Therefore, the records at issue in this matter are copies of the "911" call and any other records compiled in the Suzanne Jovin investigation.
7. It is found that the records at issue are maintained or kept on file by the respondent, and such records are "public records" within the meaning of §1-210(a), G.S.
8. The respondent contends that the records at issue are exempt from disclosure pursuant to §§1-210(b)(3)(A) and 1-210(b)(3)(C), G.S., which permit the nondisclosure 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 (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 ... (C) information to be used in a prospective law enforcement action if prejudicial to such action....
9. The records at issue were submitted to the Commission by the respondent and an in camera review was conducted. The in camera records have been marked for identification purposes as IC-I, pages 2001-131/147-1 through 1099; IC-II, pages 2001- 131/147-1 through 675; IC-III, pages 2001-131/147-1 through 2702; IC-IV, pages 2001- 131/147-1 through 494; IC-V, "911" audio tape recording; and IC-VI, pages 2001- 131/147-1 and 2.
10. The index and the in camera records submitted to the Commission pursuant to §1-21j-37(f)(2) of the Regulations of Connecticut State Agencies indicate that the respondent does not claim an exemption with respect to IC-IV, pages 2001-131/147-1 through 494, which consist of newspaper and internet articles. Consequently, IC-IV, pages 2001-131/147-1 through 494, should have been disclosed to the complainant, and therefore, the respondent violated §1-210(a), G.S., by failing to disclose such records to the complainant, promptly.
11. In addition, IC-VI, pages 2001-131/147-1 and 2, consist of a May 10, 2001 memorandum, that did not exist at the time of the complainant's request and is outside the scope such request. Therefore, disclosure of such record is not addressed herein.
12. Upon careful review of the remaining in camera records, it is found that with the exception of certain records contained in IC-III (which consist of additional published articles), such records constitute records of a law enforcement agency, which records were compiled in connection with the detection or investigation of a crime, within the meaning of §1-210(b)(3), G.S.
13. It is further found that some of the records, or portions thereof, contained in IC-I, pages 2001-131/147-1 through 1099; IC-II, pages 2001-131/147-1 through 675; and IC-III, pages 2001-131/147-1 through 2702 contain information not "otherwise available to the public" and the disclosure of which would not be in the public interest because it would, directly or indirectly, identify informants not otherwise known or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known, within the meaning of §1-210(b)(3)(A), G.S.
14. It is therefore concluded that the information described in paragraph 13, above, that would identify informants not otherwise known, or witnesses not otherwise known, is permissibly exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., and that the respondent did not violate the FOI Act by failing to disclose such information contained in the records at issue to the complainant.
15. With respect to IC-V, the "911" audio tape recording, it is found that portions of such record includes information that does not pertain to the discovery of the body of Suzanne Jovin and is outside the scope of the complainant's request. Therefore, disclosure of such portions of the "911" audio tape recording is not addressed herein.
16. It is also found that the remaining portions of IC-V do not contain any information that would, directly or indirectly, identify informants not otherwise known or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known, within the meaning of §1-210(b)(3)(A), G.S.; thus the remaining portions of IC-V do not contain information the disclosure of which would not be in the public interest. It is therefore concluded that IC-V is not permissibly exempt pursuant to §1-210(b)(3)(A), G.S.
17. With respect to the respondent's claim that the remaining records at issue are exempt from disclosure pursuant to §1-210(b)(3)(C), G.S., it is found that much of the information contained in such records, excluding the information described in paragraphs 13 and 14, above, has already entered the public domain, as evidenced by the numerous newspaper and internet articles contained in the in camera records that were not claimed to be exempt by the respondent, as described in paragraph 10, above, and the additional published articles contained in IC III, as described in paragraph 12, above. Therefore it is found that the respondent failed to prove that such information contained in the remaining records at issue is "not otherwise available to the public," within the meaning of §1-210(b)(3), G.S.
18. It is further found with respect to all of the remaining records at issue, that the respondent offered little explanation as to how disclosure of the information contained in such records would not be in the public interest. The respondent further failed to demonstrate how disclosure of such information would be prejudicial to any prospective law enforcement action, within the meaning of §1-210(b)(3)(C), G.S. The respondent simply claimed, without any supporting evidence or specific circumstances, that the investigation was "ongoing;" any release of the records at issue could possibly prejudice a jury and "the prosecution of the possible suspect in the case; " and would also "create a depiction of the facts and circumstances to the public that may not be true." The respondent also made reference to certain hypothetical situations under which disclosure of certain kinds of information would be prejudicial to a prospective law enforcement action, but failed to explain why disclosure of any of the records at issue would be prejudicial in this case.
19. It is further found that the respondent made no effort to catalogue the requested records or to identify with any precision the reason why any of the records were exempt from disclosure pursuant to §1-210(b)(3)(C), G.S. Rather, the respondent simply produced the several thousands of pages of records at issue and made a blanket claim of exemption with respect thereto.
20. It is further found that the testimony of the respondent's sole witness with respect to whether the requested records had been disclosed to certain third parties by the respondent is not accurate. In camera document IC-III, pages 2001-131/147-2501 and 2502, clearly contradicts such testimony. Consequently, the Commission finds the testimony of such witness not credible and the claim that disclosure of the remaining records at issue would be prejudicial to a prospective law enforcement action implausible.
21. It is therefore found based upon the findings in paragraphs 18 through 20, above, that the respondent failed to prove that disclosure of the remaining records at issue, 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 and would be prejudicial to such action, within the meaning of §1.210(b)(3)(C), G.S.
22. Consequently, it is concluded that the respondent violated the provisions of §1-210(a), G.S., by failing to disclose to the complainant IC-I, pages 2001-131/147-1 through 1099, IC-II, pages 2001-131/147-1 through 675, and IC-III, pages 2001- 131/147-1 through 2702, with the exception of those portions concluded to be exempt from disclosure pursuant to §1-210(b)(3)(A), G.S., as described in paragraphs 12 and 13, above, and by failing to disclose IC-V, the "911" audio tape recording, with the exception of those portions found not be within the scope of the complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, the respondent shall provide the complainant with access to inspect those portions of IC-1, pages 2001-131/147-1 through 1099, IC-II, pages 2001-131/147- 1 through 675 and IC-III, pages 2001-131/147-1 through 2702 concluded not to be exempt from disclosure and then to provide the complainant with a copy of such records, if he desires. In complying with this portion of the order, the respondent may redact any information contained in the requested records that would reveal, either directly or indirectly, the identity of informants not otherwise known, or witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identities were made known, within the meaning of § 1-210(b)(3)(A), G.S., as described in paragraphs 13 and 14 of the findings, above, and any signed statements of witnesses, within the meaning of §1-210(b)(3)(B), G.S.
2. Forthwith, the respondent shall provide the complainant with access to listen to IC-V, the "911" audio tape recording, excluding those portions that do not pertain to the discovery of the body of Suzanne Jovin, and then to provide the complainant with a copy of such record, if he desires.
3. Forthwith, the respondent shall provide the complainant with access to inspect IC-IV, pages 2001-131/147-1 through 494, in their entirety, and then to provide the complainant with a copy of such records, if he desires.
4. The Commission is mindful that in responding to FOI requests, the respondent has the difficult job of balancing the public's right to know against the need to maintain the integrity of his department's investigations. However, the Commission wishes to express its displeasure with the respondent's decision in this case to claim a blanket exemption to disclosure and then simply unload the thousands of pages of in camera records on the Commission for it to review and determine which, if any, are exempt. In the future, the Commission expects that the respondent will comply strictly with the provisions of §1-21j-37(f) of the Regulations of Connecticut State Agencies, by among other things, prior to submitting any records in camera, thoroughly reviewing the records, and specifying the exemptions claimed and providing requisite proof The respondent's failure to proceed in such a manner in this case resulted in undue delay and an unnecessary expenditure of state time and resources. Such conduct on the part of the respondent in any future proceedings before the Commission will not be tolerated.
[Signature]
Commissioner Dennis E. O’Connor as Hearing Officer |
