Re: 3/28/02 - Appeal from Freedom of Information Commission Decision; Application to Stay Enforcement of Agency Decision
STATE OF CONNECTICUT
RETURN DATE:
MICHAEL DEARINGTON
STATE'S ATTORNEY
vs.
FREEDOM OF INFORMATION
COMMISSION
SUPERIOR COURT
JUDICIAL DISTRICT
AT NEW BRITAIN
APPEAL FROM FREEDOM OF INFORMATION COMMISSION DECISION
1)The Plaintiff, MICHAEL DEARINGTON, is, and was at all times described herein, the State's Attorney for the Judicial District of New Haven.
2) The Defendant, Freedom of Information Commission (hereinafter "FOIC"), is an agency of the State of Connecticut.
3) On or about December 4, 1998, the lifeless body of Yale University student Ms. Suzanne Jovin was found in the City of New Haven. Her death was determined to be a homicide. At that point, officers of the New Haven Police Department (hereinafter "Police Department") and members of the State's Attorney's Office for the Judicial District of New Haven began an investigation to determine the identity of Ms. Jovin's killer or killers with the ultimate intention to prosecute them in the Superior Court.
4) On or about February 1, 2001, a Jeffrey Mitchell requested that the Police Department provide him with copies of certain records pertaining to the investigation.
5) On or about February 23, 2001, the Police Department denied Mitchell's request by letter.
6) On or about March 2, 2001 Les Gura and The Hartford Courant newspaper requested that the Police Department provide them with access to inspect the Police Department's documents relating to the Jovin homicide.
7) On or about March 7, 2001, the Police Department denied the request by letter.
8) The Police Department's reasons for the denials cited in paragraph 5 and 7 above were that the case is "open", there was an ongoing murder investigation, and that release of the requested records would be prejudicial to future law enforcement action and could compromise the safety of individuals who have provided information to the police.
9) On or about March 2, 2001, Mitchell appealed to the FOIC alleging that the Police Department violated the Freedom of Information Act by denying him access to the requested records. (This appeal resulted in the matter of Jeffrey Mitchell v. Chief of Police of the City of New Haven, No. FIC 2001-131.
10) On or about March 13, 2001, Gura and the Courant appealed to the FOIC alleging that the Police Department violated the Freedom of Information Act by denying them access to the requested records). (This appeal resulted in the matter of Les Gura and The Hartford Courant v. Chief of Police of the City of New Haven, No. FIC 2001-147).
11) On or about April 16, 2001 FOIC Hearing Officer Attorney Barbara E. Housen presided at a consolidated contested hearing on both Gura's and the Courant's and Mitchell's complaints, at which hearing the complainants and the Police Department appeared, stipulated to certain facts and presented testimony, exhibits, and argument on the complaints.
12) At the hearing, Hearing Officer Housen granted the Office of the State's Attorney for the Judicial District of New Haven intervenor status.
13) On or about August 28, 2001 Hearing Officer Housen issued a report of her findings, which report recommends to the FOIC that the complaints be dismissed with respect to certain police documents and upheld with respect to certain other documents.
14) At the October 10, 2001 meeting of the FOIC, the Defendant Commission considered Hearing Officer Housen's report of August 28, 2001, at which meeting the matter was referred to Commissioner Dennis E. O'Connor to conduct an in camera review of the records as a new hearing officer and report back to the Commission.
15) Commissioner/Second Hearing Officer O'Conner filed a report on January 23, 2002, which report recommends to the Defendant Commission to order greater disclosure of records than Officer Housen's report recommends.
16) On or about February 13, 2002 the FOIC issued its final decision in the complaints, which decision orders the Police Department to provide the complainants with access to certain documents.
17) The Plaintiff is aggrieved by the Defendant's decision and order in that:
a) It exceeds the statutory authority of the Defendant; and
b) It is erroneous as a matter law because it limits Plaintiff’s rights under the statutory laws, and Connecticut Practice Book Rules of Discovery and violates the separation of powers doctrine of the Connecticut Constitution.
c) The FOIC violated its own regulations in that the second hearing officer was not actually present at the contested hearing and did not personally hear testimony and argument at that hearing.
d) The second Hearing Officer's finding that Lieutenant Norwood's testimony was not credible, is unsupported by the record, and clearly erroneous.
e) The second Hearing Officer's decision is arbitrary, unsupportable, and capricious.
18) As a result of the Defendant's Final Decision, Plaintiff alleges that certain findings and orders of that Decision are in violation of Constitutional provisions, statutory provisions, Practice Book provisions, in excess of the FOIC's authority, clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, and a clearly unwarranted exercise of discretion. As a result of the Defendant's Decision, Plaintiffs ability to effectively investigate and prosecute criminal matters in accordance with his Constitutional and statutory mandates as well as his discretion is seriously impaired.
WHEREFORE, Plaintiff appeals from said order and decision and respectfully petitions this Court to vacate it and set it aside.
Dated at New Haven, this 28th day of March, 2002.
MICHAEL DEARINGTON
STATE'S ATTORNEY FOR THE
JUDICIAL DISTRICT OF
NEW HAVEN
BY
Roger S. Dobris
Senior Assistant State's Attorney
Office of the State's Attorney
Judicial District of New Haven
Career Criminal Unit
234 Church Street
Suite 402
New Haven, CT 06510
(203) 789-7801
(203) 789-7894 (Fax)
Juris #401863
Please enter the appearance of Roger S. Dobris as above.
=====
STATE OF CONNECTICUT
RETURN DATE:
MICHAEL DEARINGTON
STATE'S ATTORNEY
vs.
FREEDOM OF INFORMATION
COMMISSION
SUPERIOR COURT
JUDICIAL DISTRICT
AT NEW BRITAIN
APPLICATION TO STAY ENFORCEMENT OF AGENCY DECISION
Pursuant to General Statutes section 4-183(f), plaintiff State's Attorney, Michael Dearington, hereby applies for a stay of enforcement of the final decision rendered by the defendant Commission in the matter of Jeffrey Mitchell v. Chief of Police of the City of New Haven, No. FIC 2001-131, and Les Gura and The Hartford Courant v. Chief of Police of the City of New Haven, FIC 2001-147 until such time as the instant matter is concluded by way of appeal to this Court and, thereafter, the Appellate Court and/or the Supreme Court.
In the challenged decision the defendant Commission has ordered that the New Haven Police Department provide the underlying complainants with access to police reports pertaining to an ongoing homicide investigation. Such decision violates both the Plaintiff s rights under the laws of discovery and the separation of powers provision of the Connecticut Constitution. Consequently, a stay of enforcement, pending review by a court(s) of law is warranted because:
1. Said decision is in excess of the statutory authority of the Commission;
2. Said decision is affected by an error or errors of law;
3. Plaintiff is substantially and irreparably prejudiced by enforcement of the decision;
4. Neither defendant Commission nor the underlying complainants is harmed by such stay.
WHEREFORE, Plaintiff requests that his application be granted.
Respectfully Submitted
MICHAEL DEARINGTON
STATE'S ATTORNEY FOR THE
JUDICIAL DISTRICT OF NEW HAVEN
BY
Roger S. Dobris
Senior Assistant State's Attorney
Office of the State's Attorney
Judicial District of New Haven
Career Criminal Unit
234 Church Street
Suite 402
New Haven, CT 06510
(203) 789-7801
(203) 789-7894 (Fax)
Juris #401863 |
