Yet Another Effort to Keep the Public in the Dark about the Public’s Business

by Categorized: Government, Law Enforcement, Legal Affairs, Transparency/FOI Date:

It is extraordinarily well-settled law in Connecticut that personnel records related to the official conduct of our civil servants are public records that must – with rare and well-delineated exceptions – be released to members of the public, who employ those civil servants.

And yet, decades after the state Supreme Court resolved any serious question about the obligation oftopsecret public agencies, the dockets of the Freedom of Information Commission are routinely clogged with cases in which one town or another is trying – through ignorance or willful law-breaking – to keep personnel files secret.

Usually, the arguments are worn and tired, but occasionally an agency will come up with a novel, if misplaced, justification for skirting the law. That’s the case with a complaint brought against the Ansonia Police Department, which refuses to release personnel records for one of its officer.

The request, made just shy of a year ago, came from New Haven attorney Gregory Cerritelli, who represents a man who was shot twice by Ansonia Police Officer Joseph Jackson, after the suspect allegedly drove his car directly at Jackson following a motor-vehicle stop. Cerritelli wanted to review Jackson’s employment application, training records and any Internal Affairs investigations.

The legislature and the courts have clearly and repeatedly mandated that the vast majority of a public employee’s personnel file is open for public review, and that agencies are violating state law when they try to block public access. But too often, that’s what agencies do.

In the Ansonia case, both the police department and the police union first argued that every line of every document in Jackson’s 227-page personnel file was exempt from disclosure because their release would amount to an unwarranted invasion of Jackson’s privacy. To those who understand Connecticut FOI law, it’s an absurd claim. Twenty-two years ago, the state Supreme Court set an exceptionally high bar for asserting the invasion-of-privacy exemption, declaring that it applies only when there is both no legitimate public interest in the contents of a document and when the release of the document would be highly offensive to a reasonable person.

It was, therefore, Ansonia’s stated position that the public has no legitimate interest in knowing about a police officer’s level of training, or salary, or hire date, or commendations, or on-the-job misdeeds, and also that it would be highly offensive to reveal a police officer’s level of training, or salary, or hire date, or commendations, or on-the-job misdeeds.

Under oath, however, the union representative acknowledged he hadn’t reviewed a single page of Jackson’s personnel file, and Ansonia Police Chief Kevin Hale, who said he did review the records, admitted he didn’t really believe the file was entirely exempt.

“When moving through that almost 300 pages [in the personnel file], you didn’t identify any documents in there that would have been disclosable?” Cerritelli asked the chief during cross-examination.

“Well, I don’t want to say no,” the chief replied. “I mean, I’m sure there probably are.”

From there, the department moved on to Claim No. 2 – arguing that Jackson’s personnel file was exempt under the law that limits what police have to include when releasing an arrest report. The FOI Commission’s hearing officer, attorney Valicia Dee Harmon, seemed genuinely confused by the claim.

“But Officer Jackson wasn’t arrested, right?” Harmon asked the chief, at which time he explained the incident between Jackson and Cerritelli’s client.

“But the records that were requested, just so I can get some – the records that were requested are Officer Jackson’s personnel file, right?”

“Correct,” the chief acknowledged. And that was enough for Harmon to later note that the very court case Ansonia had relied on made it clear that the limitation on what must be released in arrest reports relates only to arrest reports.

Lastly, the department claimed that every document in Jackson’s personnel file was exempt under the portion of the Freedom of Information Act covering law enforcement records “compiled in connection with the detection or investigation of crime,” if releasing the records would cause some harm, such as damaging a pending criminal case.

Under questioning by Harmon, however, the chief acknowledged that nothing in the personnel file was compiled in connection with the detection or investigation of crime, and that nothing in the personnel file would be used in the criminal prosecution.

Ansonia’s puff-of-smoke arguments had no effect on the ultimate disposition of the case; Harmon dispensed with each of the arguments, and the full Freedom of Information Commission voted unanimously Wednesday to ratify her order that Ansonia release the disclosable portions of Jackson’s personnel file.

But while the records will be disclosed, these runarounds are not without cost.

It is 359 days and counting that Cerritelli has been wrongly forced to wait for the fulfillment of his lawful request.

Ansonia taxpayers will pick up the tab for the outside law firm the city tasked with handling the hopeless and ill-conceived battle.

And an already backlogged Freedom of Information Commission was forced to devote resources to an issue they have ruled on again and again and again and again.

The commission’s Ansonia ruling ends with an order the body is compelled to write scores if not hundreds of times a year: “Henceforth, the respondents shall strictly comply with the provisions of [the Freedom of Information Act.]”

It may be time for the commission to adopt a tougher stick.

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