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In the matter of a Complaint by FRED BROW, COMPLAINANT against CHIEF, POLICE DEPARTMENT, TOWN OF EAST HAVEN, ET AL, RESPONDENTS

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STATE OF CONNECTICUT FREEDOM OF INFORMATION

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DOCKET #FIC 2012-012

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AUGUST 13, 2012

RESPONDENT’S BRIEF FACTS: On December 20, 2011, the Complainant in this matter submitted an FOI request to former East Haven Police Chief Leonard Gallo for “any and all internal and external communications generated from members of the Department including you from the date of your return to the East Haven Police Department, to the date of this letter.” After being forwarded to the office of the East Haven Town Attorney, the request was denied by the Town on December 27, 2011 on the grounds that it was overbroad and was not sufficiently particular to allow the Town to reasonably comply. Although the Town offered to re-assess a future request that was more particular and less burdensome, on January 6, 2012, Complainant filed this appeal with the Freedom of Information Commission, which was docketed February 29, 2012. The Commission conducted a Hearing on August 1, 2012 regarding the appeal at which evidence was presented. The Complainant testified as to the nature of his request and the Respondent introduced the testimony of Captain Joseph Slane, the records room employee familiar with the department‟s compliance procedures, regarding the significant backlog of FOI and document requests which existed at the time of the Complainant‟s request. Both parties waived closing argument in favor of filing their respective briefs.

LAW & ARGUMENT Although the Complainant argues that there is no statutory exemption under Connecticut FOI law for overbroad or burdensome requests, the Courts and the FOI Commission have both upheld denials of records requests on the basis that such requests were found to be overbroad, burdensome, or vague. As a result, the Respondent‟s denial of the records request in this matter was proper because the Complainant‟s request was overbroad, burdensome, and not sufficiently particular so as to allow the Town to reasonably locate responsive records. In Connecticut Dep’t of Public Safety v. Freedom of Info. Comm’n, 1997 Conn. Super. LEXIS 2242, [Affirmed at 247 Conn. 341, 720 A.2d 1111 (1998)], the Superior Court vacated an order of the Freedom of Information Commission requiring the production of audio tapes generated by the State Police on the ground that the request was overbroad and “void of any information which would have enabled DPS to narrow its search.” (Id. at. 9). Specifically, in the underlying FOI case, the requesting party had sought audio tapes relating to her criminal arrest, which had occurred approximately six months before she filed her FOI request. The requestor was advised that audio tapes were recycled every sixty days and that, as a result, tapes relating to her arrest did not exist at the time of her request. In the alternative, the requesting party asked to be provided with “all tape recorded conversations relating to her case” – which equated to a request for all taped conversations within 60 days of the request. Vigneri v. Gore, FIC #1996-047 (1996). The Commission, after a hearing, ordered said tapes to be provided, noting that the public agency had not proven that the tapes didn‟t exist or were exempt from disclosure.

On appeal to the Superior Court, the Court vacated the Commission‟s order on the grounds that “nothing in the request or its references to a case file suggested the existence of a tape on any other date or certainly not within sixty days of the request.” Connecticut Dep’t of Public Safety v. Freedom of Info. Comm’n, 1997 Conn. Super. LEXIS 2242, at 7). Further, the Superior Court noted that the “tape request as to tapes within sixty days of the request was void of any information which would have enabled the DPS to narrow its search.” (Id. at 10). In coming to its conclusion, the Court compared Connecticut‟s Freedom of Information Act to its Federal counterpart, a practice which it noted was used by the Connecticut Supreme Court in Wilson v. Freedom of Information Commission, 181 Conn. 324, A.2d 353 (1980). The Court found that Federal Courts have held that “[a]n agency need not honor a request that requires „an unreasonably burdensome search.‟” AFGE, Local 2782 U.S. Dept of Commerce, 285 U.S. App. D.C., 133, 907 F.2d 203 (D.C. Cir. 1991). Further, the Court, citing Assassination Archives and Research Center v. C.I.A., 720 F. Supp. 217, 219 (N.D.C. 1989), noted that “it is the requestor‟s responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome, and to enable the searching agency to determine precisely what records are being requested.” In this case, the Respondent introduced evidence that communications among members of the Department are maintained and conducted through e-mail, written correspondence, phone messages, mobile text messages, inter-office memos, tape-recorded dispatches, and even through police reports. The Complainant‟s request contemplates the unqualified provision of all communications, in all mediums, among and

between over 45 employees from November 30, 2011 until December 20, 2011. The request contemplates the indiscriminate search of each individual e-mail account, phone message pad, mobile phone, and computer maintained for each officer and employee by the Department. This type of request is hardly the kind of particularity envisioned by the Federal Courts, endorsed by the Connecticut Dept. of Public Safety court, and affirmed by the Connecticut Supreme Court. Rather, it is a request which, at the time, would have proven an enormous burden on a police department which was busy fielding numerous large FOI requests and federal document requests. It is anticipated that Respondent will cite to Apostle Immigrant Services v. Leonard Gallo, Chief, Police Department, Town of East Haven, FIC #2009-665, as support for his contention that “overbreadth” and “vagueness” are not valid reasons for denying an FOI request for specific records. In that case, the Commission cited Rubinowitz et al. v. Greenwich Medical Servcies, et al., FIC 1987-188, which found that a time-consuming “process of culling response times for disclosure from oversized volume dispatch records containing length patient and other information did not excuse compliance with complainants‟ request. In the Apostle Immigrant case, the commission also cited Fromer v. New London Director of Law, FIC #1992-071, which found a “complainant entitled to records despite respondent‟s claim that search would be „overly burdensome and time-consuming.‟” Finally, the Apostle Immigrant case referenced the appellate case of William E. Wildin v. FOIC, 56 Conn. App. 683 (2000), which held that an agency is not excused from complying with burdensome requests. However, the Commission has not held that FOI requests can never be denied on the basis that they are vague or overbroad. In Danford v. Chief, Police Department,

Town of Enfield, FIC #2002-294, the complainant had requested from the respondent “any documentation not available at the respondent‟s records department.” In denying that request, the complainant responded that the request for documentation not available at the records department was vague and overbroad, and asked for clarification of the request. However, rather than clarify the request, the complainant filed an appeal with the FOI Commission regarding that and other requests which had been made. On appeal, the Commission found that the complainant‟s request was vague and overbroad and dismissed the complaint. In this case, the Complainant did not qualify his request in any way. Rather, he left it up to the Department to determine what it believed the complainant would classify as a form of communication. Further, the complainant in no way specified any subject-matter to which he was concerned. Although the Complainant‟s request is for “communications,” that request can hardly be considered “specific” to the extent that communications can mean many different things. Finally, the Complainant never responded to the Town‟s offer that it would reassess a more particularized request (Complainant‟s Exhibit B, fourth paragraph), and instead chose to file an appeal. In Vincenzo v. Chairman of the Board of Parole of the State of Connecticut and Board of Parole of the State of Connecticut, FIC #87-15, the Commission found overbroad a request “concerning any inmate in the custody of the commissioner of correction who has appeared before the Board of parole for parole release consideration between June 30, 1976 and August 25, 1986” as it would have required review of 18,000 parole hearings. The commission concluded that “the research necessary to comply with the complainant‟s request is not required by any provision of the Freedom of

Information Act.” In this case, the request submitted to the department would require not only a search, but research. First, it would require that anything resembling a communication be compiled. Second, it would require each piece of paper or electronic file to be evaluated to determine if, in fact, it is in fact a communication. Only then could the document be set aside to be provided. This request doesn‟t simply require culling through file cabinets looking for a specific document or documents. It requires scouring every inch of the department and evaluating whether an item is, in fact, a communication. The burden put on the Respondent‟s sole records employee can, and should, be analogized to the burden put on the State of Connecticut, whose resources vastly outnumber those of the East Haven Police Department, in reviewing 18,000 parole hearings. CONCLUSION The Complainant cannot simply rely on the absence of a statutory exemption regarding overbroad or burdensome requests as protection where the courts and the FOI Commission have ruled that there are occasions where overbroad, unparticular, and burdensome requests can and should be denied. It should be noted that the Complainant never responded to the Town‟s offer that it would reassess a more particularized request (Complainant‟s Exhibit B, fourth paragraph). Rather than do so or explain in any way why he would not do so, he simply filed an appeal. This case is not analogous to Apostle Immigrant Services v. Leonard Gallo, Chief, Police Department, Town of East Haven, FIC #2009-665, and the cases cited therein.

This can hardly be considered the case of a “broad request for specific records.” (Id.) Rather, this is a case of an unparticular, broad request which is burdensome because it would require significant time to search and research. It is precisely the type of burdensome and broad request which the court in Connecticut Dep’t of Public Safety held invalid and which should be held invalid now.

FOR THE RESPONDENT, CHIEF OF POLICE, TOWN OF EAST HAVEN and EAST HAVEN POLICE DEPARTMENT, TOWN OF EAST HAVEN

BY: ____________________________ JOSEPH H. ZULLO, Their Attorney The Law Offices of Zullo & Jacks, LLC 83 Main Street P.O. Box 120748 East Haven, CT 06512 Tele: (203) 467-1411 Juris No. 419171

CERTIFICATION This is to certify that a copy of the foregoing motion was mailed and faxed this day to: Attorney Patricia Cofrancesco 89 Kimberly Avenue East Haven, CT 06512 (Via Regular Mail and Facsimile to 203-467-6004) Connecticut Freedom of Information Commission 18-20 Trinity Street, Suite 100 Hartford, CT 06106 (Via Regular Mail and Facsimile to 860-566-6474)

__________________________________ JOSEPH H. ZULLO Commissioner of the Superior Court