petition docs (PDF)

DKT. NO.
RETURN DATE: JULY 28, 2015
COMMISSIONER, STATE OF CONNECTICUT
DEPARTMENT OF EMERGENCY SERVICES
AND PUBLIC PROTECTION and STATE OF
CONNECTICUT DEPARTMENT OF
EMERGENCY SERVICES AND PUBLIC
PROTECTION
Plaintiffs,

SUPERIOR COURT

JUDICIAL DISTRICT OF
NEW BRITAIN AT NEW BRITAIN

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JUNE 26,2015

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FREEDOM OF INFORMATION
COMMISSION and DAVID ALTIMARI AND
THE HARTFORD COURANT
Defendants.

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PETITION FOR ADMINISTRATIVE APPEAL
TO THE SUPERIOR COURT for the Judicial District of New Britain at New Britain,

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on June 26, 2015, comes the Commissioner, State of Connecticut, Department of Emergency

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Services and Public Protection and State of Connecticut, Department of Emergency Services and

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Public Protection appealing from a final decision of the Freedom of Information Commission
(FOIC), dated May 13, 2015 in docket FIC # 2014-372 with a May 15, 2015 Notice of Final
Decision, pursuant to Connecticut General Statutes §1 -206(d) and § 4-183 and complains and
says that:
1.

The plaintiffs are the Commissioner, State of Connecticut, Department of

Emergency Services and Public Protection and the State of Connecticut, Department of
Emergency Services and Public Protection, an agency of the State of Connecticut, with its
principal offices located at 1111 Country Club Road, Middletown, CT 06457.

2.

The defendant, Freedom of Information Commission, is an agency of the State of

Connecticut, with its principal offices located at 18-20 Trinity Street, Hartford, Connecticut
06106,
3.

The defendants, David Altimari and the Hartford Courant have a principal place

of business at 285 Broad Street, Hartford, Connecticut.
4.

On June 11, 2014, the defendants David Altimari and the Hartford Courant filed a

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letter of complaint and appealed to the Freedom of Information Commission (FOIC), alleging
that the plaintiffs, Commissioner, State of Connecticut, Department of Emergency Services and

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Public Protection and State of Connecticut Department of Emergency Services and Public

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Protection had violated the Freedom of Information Act (FOIA), Conn. Gen. Stat. §§1-200, et.

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seq., by denying his requests for copies of property seized pursuant to a search warrant in

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connection with the Sandy Hook Elementary School shootings.
Evidence logs and descriptions of the items seized were included in the report that

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was publicly released and are accessible online on the plaintiffs' website.
6.

Defendants' request, however, sought copies of the seized property.

7.

On January 6, 2015, the matter was heard as a contested case before FOIC

Hearing Officer, Attorney Kathleen Ross.
8.

At the January 6, 2015 hearing, the plaintiffs moved to bifurcate the hearing to

first determine whether the items of private property seized pursuant to search warrants were
"public records" under FOIA and to defer consideration of whether any exemptions applied to
the property.

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9.

The hearing officer subsequently denied the motion to bifurcate and a second

hearing was held on February 19, 2015.
10.

The Public Records Administrator for the Connecticut State Library, who is

responsible for the design and implementation of a public records management program for state
agencies, offered uncontroverted testimony that seized property is not included in the public
record retention schedule because an item of seized property is not a "public record". Rather, it

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is purely private property subject to the control and return to its owner by order of the Superior
Court.

The Chief States Attorney and state police witnesses offered uncontroverted

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11.

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testimony that property seized pursuant to a warrant is subject to the control of the Superior

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Court and return by order of the Superior Court under Conn.Gen.Stat. 54-36a et.seq. and 54-33a

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et.seq..

It is uncontroverted that seized property is bagged and sealed if possible and

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stored in evidence rooms. Access to seized property is limited in order to maintain the chain of
custody of the seized property and to ensure the integrity of the property.
13.

In this regard, seized documents are no different than other items of seized

property, e.g. money, articles of clothing, cell phones, and any other piece of property that is not
a document.
14.

The Chief States Attorney offered uncontroverted testimony that a finding that

evidence seized pursuant to a search warrant is a public record would undermine the functioning
of his office and raise serious chain of custody concerns for criminal prosecutions and related
civil litigation. In addition, such a finding would potentially undermine the integrity of seized

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property for return to its owner. Finally, the precedent of such a finding could violate the
privacy of crime victims.
14.

On April 21, 2015, the Hearing Officer issued a Report of Hearing Officer

making proposed findings of fact and conclusions of law. A copy of the Report of Hearing
Officer is attached as Exhibit A.
15.

On May 13, 2015, the parties were heard before the full FOI Commission at a

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hearing to consider the Report of Hearing Officer.

The full Commission adopted the Report of the Hearing Officer and the Notice of

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Final Decision was issued on May 15, 2015. A copy of the Final Decision is attached hereto as

The FOIC ordered that copies of the seized property be provided to the

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17.

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Exhibit B.

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defendants.

The plaintiffs have exhausted all available administrative remedies.

19.

The plaintiffs are aggrieved by said final decision in that substantial rights of the

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plaintiffs have been prejudiced by the Freedom of Information Commission.
20.

The Final Decision is erroneous in one or more of the following ways:

a.

it failed to bifurcate the adjudication of the defendants' complaint to determine in

the first instance whether the requested items were "public records";
b.

it required plaintiffs to disturb the chain of custody and integrity of the seized

property in order assert specific exemptions prior to a finding that the requested items were in
fact "public records";

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c.

it erroneously concluded that the requested items of seized personal property were

public records within the meaning of Connecticut General Statutes §§ 1-200(5) and 1-210(a);
d.

it failed to conclude that seized property is under the control of the judicial branch

and thus is not a public record. Clerk of Superior Court v. Freedom of Information Com'n, 278
Conn. 28, 37 (2006); Conn.Gen.Stat54-36a et.seq. .
e.

it erroneously concluded that property seized for limited purposes under the

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Fourth Amendment to the United States Constitution is a public record and must be released
without notice to its owner.

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conclusions of law, decision and order are:

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21. The defendant Freedom of Information Commission's administrative findings of fact,

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a. in violation of constitutional or statutory provisions;

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b. in excess of the statutory authority of the agency;
c. made upon unlawful procedure;

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d. affected by other error of law;
e. clearly erroneous in view of the reliable, probative, and substantial evidence on
the whole record; or

f. arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

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WHEREFORE, the plaintiffs respectfully request the Court to reverse the decision of
the defendant Freedom of Information Commission remand the matter for further appropriate
proceedings consistent with the Court's decision, and/or to grant such other relief as may be
deemed appropriate.

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PLAINTIFF
Commissioner,
State of Connecticut,
Department of Emergency Services
and Public Protection and State of
Connecticut Department of
Emergency Services and Public
Protection

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GEORGE JEPSEN
ATTORNEY GENERAL

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BY:

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Steven M. Barry
Assistant Attgtfney General
110 Sherman Street
Hartford, CT 06105
Tel: (860) 808-5450
Fax:(860) 808-5591
Juris No. 433779
steven.barry@ct.gov

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EXHIBIT A

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Since 1975

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It's Your
Right to Know

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FREEDOM OF
INFORMATION

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CcmnecticHl Freedom pf Information Commission • 18-20 Trinity Street, Suite 300 • Hartford, CT 06106
Toil free (Cf only): (866)374-3617 Tel: (860)566-5682 Fax: (860)366-6474 • www.5iaic.ci.iis/fni/ • tmaii: foi@po.staie.ct.us

Dave Altimari and the Hartford Courant,
Complainants)
against

Notice of Meeting
Docket #FIC 2014-372

Commissioner, State of Connecticut, Department of
Emergency Services and Public Protection; and State of
Connecticut, Department of Emergency Services and
Public Protection,
Respondent(s)

April 21, 2015

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Transmittal of Proposed Final Decision

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In accordance with Section 4-179 of the Connecticut Genera! Statutes, the Freedom of
Information Commission hereby transmits to you the proposed finding and decision prepared by
the hearing officer in the above-captioned matter.
This will notify you that the Commission wilJ 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 p.m. on Wednesday, May 13, 2015. 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 May 1, 2015. Such request
MUST BE (1) copied to all parties, or if the parties are represented, to such representatives,
and (2) include a notation Indicating such notice to all parties or their representatives.
Although a brief or memorandum of law is not required, if you decide to submit such a
document, an original and fourteen (14) copies must be filed ON OR BEFORE May 1, 2015.
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 fifteen f15)
copies be filed ON OR BEFORE May 1, 2015, 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
InformatfoWCemmissio^

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V I J. JTl. -rf
W, Paradis
Acting Clerk of the Commission

Notice to: William Fish, Esq.
Steven M. Barry, Esq. and Lynn D. Wittenbrink, Esq.
2015-04-21/FIC# 2014-372/Trans/wrbp/KKR/fTAH

An Affirmative Action/Equal Opportunity Employer

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
Report of Hearing Officer

In the Matter of a Complaint by
Dave Altimari and the
Hartford Courant,
Complainants

Docket #FIC 2014-372

against

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Commissioner, State of Connecticut,
Department of Emergency Services
and Public Protection; and State of
Connecticut, Department of Emergency
Services and Public Protection,

April 21, 2015

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Respondents

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The above-captioned matter was heard as a contested case on January 6,2015 and
February 19,2015, at which times the complainants and the respondents appeared,
stipulated to certain facts and presented testimony, exhibits and argument on the
complaint.

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After consideration of the entire record, the following facts are found and
conclusions of law are reached:

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1. The respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that, by letter dated January 24, 2014, the complainants requested
from the respondents, copies of certain documents referenced in the state police1 report
pertaining to the December 14, 2012 shootings at Sandy Hook Elementary School
("SHES").2 Such documents shall be referred to herein as "the requested documents."

'The State Police is a division within the respondent Department of Emergency Services and Public
Protection.
2Some of the specific items requested include "a spiral bound book written by the shooter entitled 'The Big
Book of Granny';" "class photo of the Class of2002-2003 at SHES;" "a yellow folder containing hand
drawn comic- style pictures and stories about Pokeraon-type characters;" "packet containing educational
information from SHES for the shooter, including report cards and IEPs;" "list of problems and requests
from the shooter to Nancy;" "'Lovebound'" - screenplay or script describing a relationship between a 10
year old boy and a 20 year old man;" and "spreadsheet ranking mass murders by name, number killed,
number injured, types of weapons used, and disposition."

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