The above-captioned matter was heard as a contested case on June 6, 2013 and July 18, 2013, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2012-727, James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police.

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

     1.  The respondents are public agencies, within the meaning of §1-200(1), G.S.

     2.  By letter dated October 24, 2012, and filed on October 31, 2012, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the order of this Commission in Docket #FIC 2011-700, James Torlai v. Legal Affairs Unit, State of Connecticut, Department of Emergency Services and Pubic Protection; and State of Connecticut, Department of Emergency Services and Public Protection. 

     3.  The Commission takes administrative notice of the final decision referenced in paragraph 2, above.  In that decision, the Commission issued the following order:

     4.  It is found that, as of the date of the hearing in the present matter, the respondents had not provided the complainant with any non-exempt, non-erased records responsive to his November 28, 2011 request, in accordance with paragraph 1 of the order.  The complainant argued, at the hearing, that the respondents should have provided such records within 10 days of the September 27, 2012 order and further questioned whether some of the records the respondents continued to claim are exempt from disclosure, are, in fact, exempt.
  
     5.  It is found that, of the 73 records at issue in Docket #FIC 2011-700, the respondents concluded that nine such records are non-exempt, non-erased, and subject to disclosure, and that the remainder of such records are exempt from disclosure because they are erased.  The respondents stated that they intended to provide copies of the non-exempt, non-erased records to the complainant at the hearing in this matter. 

     6.  With regard to that portion of the order that required the respondents to provide the records within 10 days of the final decision in that case, or by October 11, 2012, it is found that the respondents failed to comply with such order.  The respondents offered evidence as to the reasons for their failure to comply with the order, such as a change in staffing in the legal affairs unit, disorganized files, staffing shortages, and the shootings at Sandy Hook Elementary School in Newton that resulted in an increased volume of work for the staff of the legal affairs unit.  Although the Commission acknowledges the limitations on resources of state agencies, it is nevertheless astonished that, in the face of a finding of a violation and an order from this Commission to provide records to the complainant within 10 days, the respondents did not provide the complainant with those records until 10 months after the date they were ordered to do so.

     7.  It is found that the respondents complied with paragraph 2 of the order, described in paragraph 3, above, in that they did not rely solely on the information contained on the Judicial Branch website for their determination whether or not the records at issue were erased or exempt.  Rather, it is found that they relied on a previously instituted multi-step process for verifying such information, which includes sending the name of the individual who is the subject of each requested record to the State Police Bureau of Identification and obtaining a full “rap sheet” or criminal history record for that individual.  

     8.  It is found that, after a “rap sheet” for an individual is obtained, a paralegal in the legal affairs unit reads through it, and identifies the DUI charge that pertains to the requested records.  It is further found that the paralegal then, applying the erasure statutes, makes certain other calculations and determinations in concluding whether or not the records are erased. 

     9.  It is found that, with respect to at least one of the records at issue, the conclusion of the paralegal that such record was erased was erroneous.  No evidence was offered at the hearing in this matter that the conclusions reached by the paralegal with regard to any of the records at issue were reviewed by an attorney or other supervisor.  It is found that such review is an appropriate measure that the respondents should have taken to ensure that the complainant was provided with all non-exempt, non-erased records.  It is therefore found that the respondents failed to prove that they complied with that portion of paragraph 1 of the order that required them to “take all appropriate measures to ensure that the complainant is provided a copy of all non-exempt and non-erased records in response to his November 28, 2011 request.”  (Emphasis added).

     10. With regard to paragraph 3 of the order, it is found that the respondents presented no evidence at the hearing in this matter that they provided a written report to this Commission as described in the order.
  
     11. Based upon the foregoing, it is concluded that the respondents failed to comply with paragraphs 1 and 3 of the order, described in paragraph 3, above.

     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

     1.  Forthwith, the respondents shall ensure that an attorney or other supervisor reviews the legal conclusions made by their paralegal in this case and in connection with all records requests made pursuant to the FOI Act.  The respondents shall immediately after such review, provide the complainant with copies, free of charge, of all non-exempt, non-erased records responsive to his November 28, 2011 request, if they have not already done so.

     2.  Forthwith, the respondents shall report to the Commission, in accordance with paragraph 3 of the order, described in paragraph 3 of the findings above, and provide a copy of same to the complainant.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 11, 2013.

__________________________
Cynthia A. Cannata
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

James Torlai
127 Barton Street
Torrington, CT  06790

Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection, Division of State Police;
and State of Connecticut, Department of Emergency Services
and Public Protection, Division of State Police
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-728/FD/cac/9/11//2013