Town of Enfield et al. v. Freedom of Information Commission et al. (2010)

MEMORANDUM OF DECISION

On August 13, 2008, the defendant Freedom of Information Commission (FOIC) issued a final decision ordering the disclosure of portions of documents to the defendant (FOIC complainant) Journal Inquirer.¹  These documents had been submitted in camera during FOIC proceedings where a former police officer, Duane Tompkins (Tompkins) and the town of Enfield (the town) were respondents.²  Both Tompkins and the town appealed separately to this court from the final decision of the FOIC.³

On July 13, 2009, the court issued an opinion after it had reviewed the in camera documents.   The court held that before reaching whether the FOIC had properly considered exemptions set forth in § 1-210(b) as raised by Tompkins and the town, the FOIC should amend its final decision “by reviewing the documents again and discussing whether it is a matter of public concern ⁴ to release the verbatim transcripts in tabs D-J and the portion of tab A at page 6 and following.”   The court's concern over the need for possible redaction where a respondent argues that documents lack public concern was drawn from Rocque v. Freedom of Information Commission, 255 Conn. 651, 667, 774 A.2d 957 (2001).

The FOIC appropriately took upon itself to redact the documents in question, and on April 14, 2010, the FOIC issued a revised final decision with redactions to in camera verbatim transcripts.   Finding 29 of the revised final decision states:  “It is found that, because this Commission has determined that the records comprising the internal affairs investigation in this case are a legitimate matter of public concern ․ it is found that the sexually explicit language contained in the verbatim transcripts ‘is not necessary to the public's understanding or evaluation of the department's ․ investigation,’ “ citing Rocque at 664.

Based on a review of the documents and Finding 29, the FOIC redacted in Finding 30 portions of the documents found in Tabs A, D, E, F, G, and I. The redacted portions of the transcripts were found not to be matters of public concern.   In Finding 31, the FOIC concluded that the redactions would also be highly offensive to a reasonable person.   In Finding 32, the FOIC, applying Perkins, found the redacted portions of the documents to constitute an invasion of privacy under § 1-210(b)(2) and exempt from disclosure.

The FOIC stated in Finding 33:  “However, it is found that, other than the portions of the records specifically identified in paragraph 30, above, the records ․ contain the information which formed the basis for and which triggered the internal ․ affairs investigation in this case.   It is further found that the records are necessary to facilitate the public's understanding and evaluation of the Enfield Police Department's investigative process, decision-making and overall handling of an important matter involving a fellow police officer.” ⁵  The documents as redacted were ordered disclosed to the Journal-Inquirer.

The court retained jurisdiction while the FOIC considered the redactions and the matter subsequently returned to court.   Tompkins did not contest the “Final Decision on Remand” with regard to the redactions set forth therein.   He raises two matters.   The first is that while the final decision now approved redactions as to the verbatim transcripts, it did not redact as to the quotations contained in the police department's internal investigation reports,⁶ also contained in the in camera records.   The court asked the FOIC to examine the in camera police investigation reports and on October 8, 2010 received its written position on Tompkins' contention.   The court has reviewed this statement of the FOIC and concludes that the FOIC has not left in the investigative reports any quotation, beyond minor wording, that contradicts its redactions in the verbatim transcripts.

Tompkins also asks the court to consider whether the FOIC correctly concluded in the final decision on remand that, under the Perkins test, the in camera records relate to matters of public concern.   Under Perkins, the burden of establishing that these records were not of public concern is placed on Tompkins.  Perkins, 228 Conn. 167.   In addition, the conclusion of the FOIC in this regard is one of fact.   Only recently, the Supreme Court has stated that under the Uniform Administrative Procedure Act on matters of fact the substantial evidence test applied and “it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency.”   Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703 A.2d(2010).

Tompkins argues that the FOIC's findings violate his constitutional rights to privacy, relying on cases such as Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d (1967) (right to privacy under the Fourth Amendment).   The court declines to expand this appeal beyond whether the exemption in the Freedom of Information Act for “[p]ersonnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy,” § 1-210(b)(2), applies in this case.   See Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 775 A.2d 981 (2001);  Pane v. Danbury, 267 Conn. 669, 676, 841 A.2d 684 (2004) (section 1-210(b)(2) exemption embodies the constitutional protection for invasion of privacy).

Moreover, the FOIC made findings of fact that Tompkins' conduct was not whole private, but had public aspects concerning a severance agreement and inappropriate conduct by a town police officer.   See Findings 12-14, 24-25.   These findings are based on substantial evidence in the record.

In a brief of October 22, 2010, Tompkins argues that a case, Miron v. University of New Haven, 284 Conn. 35, 931 A.2d 847 (2007), and State Regulation § 7-294E-16(I) stand for the proposition that Tompkins would not easily be re-employed.   He would have to meet a difficult screening process established by police departments.   This meant, according to Tompkins, that the matter of public concern identified in the FOIC by the chairman-possible re-employment by Tompkins-is a false concern.

The answer to this contention is that Findings 25 and 33 are not merely related to Tompkins re-employment as any other police officer.   Rather, the FOIC mentions Tompkins' resignation by a stipulation that allows him to continue to draw his salary and to control release of documents, as well as the concern for re-employment under the serious circumstances of his leaving the police department.   The Journal Inquirer raised at the original hearing whether the resignation was under pressure and the nature of the internal investigation.  (Return of Record, pp. 71, 74, 77.)

The court concludes that the record supports the finding that the documents as redacted concern matters of public concern.   Therefore the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. The defendant Alexander Wood, a reporter for the Journal Inquirer, has made an appearance in court..  FN1. The defendant Alexander Wood, a reporter for the Journal Inquirer, has made an appearance in court.

FN2. These documents, by order of court, are now held by this court, also in camera.   As indicated in the final decision on remand, the documents are the town's response to the Journal Inquirer's October 15, 2007 request for “all records generated or received by the Town of Enfield, including the Enfield Police Department, in connection with the recent suspension of a police lieutenant ․ including facts uncovered by the internal investigation.”  (Supplemental Return of Record, p. 42.).  FN2. These documents, by order of court, are now held by this court, also in camera.   As indicated in the final decision on remand, the documents are the town's response to the Journal Inquirer's October 15, 2007 request for “all records generated or received by the Town of Enfield, including the Enfield Police Department, in connection with the recent suspension of a police lieutenant ․ including facts uncovered by the internal investigation.”  (Supplemental Return of Record, p. 42.)

FN3. The town participated in the original oral argument that resulted in the remand of July 13, 2009, on its own appeal, but has not participated after the supplemental ruling by the FOIC. The court has given notice to the town that it might participate, but it has declined.   The court presumes that the town no longer has an interest in pursuing its own appeal, and it is therefore dismissed.   If the town, complainant and the FOIC wish to reach agreement in which manner the documents in question will be released to the complainant, the parties are free do so outside the bounds of this judgment..  FN3. The town participated in the original oral argument that resulted in the remand of July 13, 2009, on its own appeal, but has not participated after the supplemental ruling by the FOIC. The court has given notice to the town that it might participate, but it has declined.   The court presumes that the town no longer has an interest in pursuing its own appeal, and it is therefore dismissed.   If the town, complainant and the FOIC wish to reach agreement in which manner the documents in question will be released to the complainant, the parties are free do so outside the bounds of this judgment.

FN4. That a record is not “a matter of public concern” is one requirement for a § 1-210(b)(2) exception under Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1993).   The other requirements are that the records are personnel, medical or similar files and are highly offensive to a reasonable person.  Id..  FN4. That a record is not “a matter of public concern” is one requirement for a § 1-210(b)(2) exception under Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1993).   The other requirements are that the records are personnel, medical or similar files and are highly offensive to a reasonable person.  Id.

FN5. Earlier, when considering whether the documents raised a matter of public concern, the FOIC stated in Finding 25:  “It is found that the in camera records ․ evidence a continuing practice that could pose a danger to portions of the public.   The more egregious the specific behavior, the more a finding of legitimate public concern is warranted concerning the records describing the behavior.   Further, the fact that respondent Tompkins remained on the payroll of the Town of Enfield for ten months after the execution of the severance agreement, as well as the fact that the Town agreed to allow Tompkins to have control over the release of his employment records ․ adds to the legitimacy of the public concern in this case.”  (Supplemental Return of Record, p. 47.).  FN5. Earlier, when considering whether the documents raised a matter of public concern, the FOIC stated in Finding 25:  “It is found that the in camera records ․ evidence a continuing practice that could pose a danger to portions of the public.   The more egregious the specific behavior, the more a finding of legitimate public concern is warranted concerning the records describing the behavior.   Further, the fact that respondent Tompkins remained on the payroll of the Town of Enfield for ten months after the execution of the severance agreement, as well as the fact that the Town agreed to allow Tompkins to have control over the release of his employment records ․ adds to the legitimacy of the public concern in this case.”  (Supplemental Return of Record, p. 47.)

FN6. For the distinction between the transcripts and the internal investigation reports, see Finding 17 (Supplemental Return of Record, p. 45.).  FN6. For the distinction between the transcripts and the internal investigation reports, see Finding 17 (Supplemental Return of Record, p. 45.)

Cohn, Henry S., J.