FOI hearing officer backs police on release of Haberek images

Stonington - A state Freedom of Information Commission hearing officer is recommending the agency dismiss a request by The Day to force state police to release possibly inappropriate images that First Selectmen Ed Haberek allegedly sent to a Pawcatuck woman using his town-issued BlackBerry in January 2010.

State police had obtained search warrants to seize phone records, computers and hundreds of pages of material from Haberek's Facebook account after the woman filed a criminal complaint. Police later determined that no crime had been committed.

When The Day requested access to the images and the corresponding investigative documents, state police refused to release them. Police said they were exempt from disclosure under the Freedom of Information law because the investigation ultimately involved uncorroborated allegations and a signed witness statement and records that, if disclosed, would constitute an invasion of personal privacy.

The Day appealed the denial to the Freedom of Information Commission. But FOI attorney Valicia Dee Harmon, who held a hearing on The Day's appeal in February, has agreed with state police and recommended that the material not be released.

The commission will consider her recommendation when it meets July 13 to render a final decision.

During the February hearing, The Day argued there was on overriding public interest in releasing the Facebook images and messages the woman had said Haberek sent her using town-owned equipment because such behavior often results in the discipline of employees in both the public and private sector.

The Day maintained that residents had a right to know if the town's chief elected officer used equipment assigned to him for town business to engage in such behavior.

The Day further argued that voters have the right to know if the incident did occur, especially since they will have to decide whether or not to re-elect Haberek this fall.

In her recommendation, Harmon pointed out that the FOI law does not require the disclosure of "records 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 ... uncorroborated allegations subject to destruction pursuant to section 1-216."

She found that the release of the records would not be in the public interest because they contained uncorroborated allegations subject to destruction. She also said the images and other material could now be destroyed because the investigation has been concluded.

j.wojtas@theday.com

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