Complaint
&
Ruling, Re; Smolinski public records
AT BOTTOM of this post ...
also, link to BURIED SECRETS
via Peace4 the missing ...
‘ .. I couldn’t remain silent. What I saw in those woods was so out of the ordinary. I felt obligated to tell what I saw. I couldn’t sit on it. I would do anything to help the Smolinski family. They don’t deserve to have this hanging over them … ‘
SHELTON — On a summer evening about eight years ago, cardiac nurse Jean Petrucelli — still dressed in scrubs after work — relaxed as she grilled dinner off her back deck overlooking the woods.The woods are a refuge for Petrucelli, a place where she gains peace just breathing air and listening to the singing birds. Occasionally the sounds of all-terrain vehicles wreck the calm throughout the natural setting of about 150 relatively unspoiled acres off Wigwam Road.
A bizarre sight jarred her.
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Waterbury PD FOI request re- Missing Person Billy Smolinski
The Cool Justice Report
Fri., 7-28-06
Chief Neil O’Leary
Waterbury Police Department
255 East Main Street
Waterbury, CT 06702
Phone (203) 574-6906
Fax (203) 573-8334
by Fax and regular mail
Dear Chief O’Leary:
This is a formal request for prompt production of documents in accordance with the state Freedom of Information Act. This correspondence follows several unanswered calls this week.
I request copies of any and all reports — including #04-26782 — mentioning Madeleine Gleason and / or Christian Sorensen. As you will recall, you and several other members of your department have confirmed — to Waterbury Observer Publisher John Murray — the identities of these individuals as related to the Billy Smolinski matter.
These documents are not exempt from disclosure. As you probably know, improper withholding of public records is punishable by a fine of up to $1,000. A denial of production would result in a hearing in which subpoenas would be sought to compel appearances and the department would have to justify its actions and demonstrate what it has done up to this point.
By prompt, I mean immediately, unless you can demonstrate to the FOI Commission that this would interfere with the normal course of business. This information is vital to the public interest. Accordingly, I request a waiver of any and all fees.
Thank you very much.
Sincerely,
Andy Thibault
Copy to state Freedom of Information Commission, Cool Justice Blog
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Complaint / Request for hearing
re- Denial of public records request by Waterbury PD
Fri., 8-4-06
State Freedom of Information Commission
18-20 Trinity St.
Hartford, CT 06106
Dear Ms. or Sir:
This is a formal complaint following denial of a request for public records regarding the Billy Smolinski case. I request a hearing in this matter.
Please see request letter dated July 28 and denial letter dated Aug. 4.
Based on discussion with Gary Roosa, the Waterbury Police Department's legal advisor, I am optimistic we could stipulate to an in-camera review of the Smolinski file by a hearing officer for the FOI Commission. Such an agreement could be formalized during a short hearing.
In lieu of requesting subpoenas for witnesses at this time, I ask that the Waterbury Police Department voluntarily send an officer to the hearing who could testify under oath regarding what has been done or not done to investigate this case. This is critical information for the hearing officer because the Department cites an ongoing investigation. What has been done? When?
I contend these records are not exempt from disclosure. The Department must demonstrate what it has done up to this point. Is this still a missing person case after two years? Or is it a homicide case? See "Does Missing Person / Love Triangle Case Add Up To Homicide?" July 26, 2006, The Cool Justice Report, and "Lack of Will To Solve Case Keeps Closure From Family," Norwich Bulletin, July 30, 2006.
Sincerely,
Andy Thibault
Copies to Mr. Roosa and Chief O'Leary
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FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
FINAL DECISION
Docket #FIC 2006-389
In the Matter of a Complaint by
Andy Thibault,
Complainant
against
Chief, Police Department,
City of Waterbury,
Respondent
April 11, 2007
The above-captioned matter was heard as a contested case on September 26, 2006, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
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, by letter dated July 28, 2006, the complainant requested that the respondent provide him with a copy of any and all reports “including #04-26782, mentioning Madeleine Gleason and/or Christian Sorensen (the “requested records”).
3. It is found that, by letter dated August 4, 2006 (the “August 4, 2006 letter”), the respondent, through his attorney, stated that no report exists for incident #04-26782, which is the initial missing person report regarding William Smolinski, but provided the complainant with a “computer printout regarding incident report #04-26782.” The August 4, 2006 letter further stated that any other documents relating to the investigation of William Smolinski’s disappearance are exempt from disclosure pursuant to §§1-210(b)(3)(A), 1-210(b)(3)(B), and 1-210(b)(3)(C), G.S.
4. By letter dated August 4, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying him copies of the records described in paragraph 2, above.
5. 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 section 1-212.
6. 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.”
7. It is found that the requested records are public records within the meaning of §1-210(a), G.S.
8. It is found that, on August 27, 2004, the respondent opened an investigation into the disappearance of William Smolinski, Jr. It is further found that, by letter dated August 4, 2006, the respondent requested the assistance of the Federal Bureau of Investigation (“FBI”) in conducting a joint investigation into the disappearance of Mr. Smolinski.
9. At the hearing in this matter, the respondent objected to release of all requested records, generally citing §1-210(b)(3), G.S.
10. Section 1-210(b)(3), G.S., provides, in relevant part, that nothing in the FOI Act shall be construed to require disclosure of:
“[r]ecords 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 … (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action …”
11. After the hearing in this matter, the respondent submitted the requested records for in-camera inspection, which documents shall be identified herein as IC-2006-389-1 through IC-2006-389-17. Such documents consist of police reports, witness statements, and handwritten notes.
12. It is found that the police department of the city of Waterbury is a law enforcement agency within the meaning of §1-210(b)(3), G.S., and that the respondent compiled the requested records in connection with the investigation into the disappearance of Mr. Smolinski. It is also found that the requested records are not otherwise available to the public.
13. Upon careful examination of IC-2006-389-1 through IC-2006-389-17, it is found that IC-2006-389-2 and IC-2006-389-10 are signed statements of witnesses within the meaning of §1-210(b)(3)(B), G.S.
14. It is therefore concluded that the records described in paragraph 13, above, are exempt from mandatory disclosure and, further, that the respondent did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S. by denying the complainant’s request for a copy of such records.
15. In Department of Public Safety v. FOIC, 51 Conn. App. 100, 105 (1998), the court stated that §1-210(b)(3)(C), G.S., required an evidentiary showing that (1) the records are to be used in a prospective law enforcement action and (2) the disclosure of such records would be prejudicial to such action. The court further stated that “the statute is not satisfied by the mere good faith assertion that the matter to which the information pertains is potentially criminal ... there must be an evidentiary showing that the actual information sought is going to be used in a law enforcement action and that the disclosure of that information would be prejudicial to that action.”
16. It is found that, other than a broad assertion of prejudice, the respondent has failed to prove how any of the requested records, specifically IC-2006-389-1, IC-2006-389-3 through IC-2006-389-9, and IC-2006-389-11 through IC-2006-389-17, would prejudice a prospective law enforcement action if released.
17. Accordingly, it is concluded that the requested records described in paragraph 16, above, are not exempt from mandatory disclosure by virtue of §1-210(b)(3)(C), G.S., and that the respondent violated the FOI Act by denying the complainant copies thereof.
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 a copy of the requested records described in paragraph 16 of the findings, above, at no cost.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 11, 2007.
Petrea A. Jones
Acting Clerk of the Commission
FIC/2006-389FD/paj/4/17/2007
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