Hamden admits it violated Freedom of Information Act in cop record shredding
HAMDEN — The town has admitted to a technical violation of the Freedom of Information Act in connection with last year's controversial destruction of Hamden Police Department documents, some of which were responsive to a public records request.
In exchange for that admission, Daniel Dunn, a member of the Hamden Police Commission, waived his right to question Hamden police officers before the Freedom of Information Commission, according to an email from his attorney, Joseph Sastre.
Meanwhile, nearly a year after the scandal, the town has yet to release a report on the results of a probe into how the records destruction unfolded.
In a written statement, Mayor Lauren Garrett said she expects the report will be ready in a couple of weeks.
"The Town agreed there was a technical violation of FOIA due to the destruction of documents," she wrote. "Actions have been taken to ensure this never happens again ... We are in the process of drafting an ordinance that deals with the destruction of documents for all town departments, including police and fire."
Some of the destroyed documents were responsive to a request Dunn submitted last February. He asked Hamden to produce seven years' worth of civilian complaints and use-of-force reports in that request.
In April, Dunn filed a complaint with the FOIC over the delay in receiving the records; he later learned some of the civilian complaints had been shredded.
At a March 9 hearing regarding Dunn's complaint, Bryan LeClerc, an attorney representing the town, read a statement into the record acknowledging Hamden violated FOIA regulations, according to a recording of the hearing available on the state's website.
"The respondents will agree that there's been a technical violation of the Freedom of Information Act and that certain documents that were in existence on the date of Mr. Dunn's request were subsequently not provided as they were destroyed," LeClerc said.
While the written complaints were destroyed, many of the internal affairs reports into those complaints were backed up electronically, according to town officials.
During the FOIC hearing, LeClerc claimed: "the vast majority of the information was able to be retrieved even though the physical copies of documents were destroyed, with the exception of several written complaints themselves that led to investigations."
But Dunn told Hearst Connecticut Media Group that in many cases, he received a civilian complaint's resulting internal affairs report in lieu of the complaint itself.
While those reports summarize the original complaint, they do not contain the complainants' exact words, according to Dunn.
In some cases, he received no related documentation at all, he said.
In an email request for comment, Hearst Connecticut Media Group asked LeClerc and Garrett about the matter.
The inquiry asked them to verify that, in exchange for the town's admission, Dunn agreed to waive his right to question Hamden police officers before the FOIC; LeClerc's written response did not address that particular question.
"The Town admitted to the technical violation which occurred and advised the Hearing Officer steps taken to prevent a reoccurrence in the future," LeClerc wrote. "The Town is also continuing to comply with the request of Mr. Dunn as to several remaining documents requested."
The shredding & its aftermath
Before Hamden destroyed the police records, it sought and obtained permission to do so from the Connecticut State Library.
The request, dated in early March of last year, came on the heels of Dunn's Feb. 25 FOI request.
Both Mayor Lauren Garrett and then-Chief of Police John Sullivan signed off on the disposition request form. In doing so, they averred that "no records listed, in our opinion, pertain to any pending case, claim, or action."
After Dunn learned of the destruction, he notified the state library, which put a hold on all disposition requests from the Hamden Police Department.
When the news of the shredding broke last May, a state library administrator told Hearst Connecticut Media Group that local agencies are responsible for knowing whether their records are subject to pending actions, in which case they should be maintained.
Garrett said she did not know the records were connected to an active FOI request when she signed the form, while Sullivan declined to discuss the matter.
Sullivan also did not return recent requests for comment.
In the wake of the controversy, Garrett ordered a halt to records destruction townwide. Over the summer, police accountability activist Councilman Justin Farmer, D-5, proposed a policy requiring the Police Commission to approve requests to destroy documents.
Late last year, the Legislative Council passed an ordinance along those lines. It requires the Fire Department and Police Department to notify the Fire Commission and Police Commission, respectively, when seeking to destroy internal investigations and civilian complaints.
The ordinance also means the town must wait longer to destroy certain documents than is typically required by the state.
LeClerc cited the ordinance at the March 9 FOIC hearing.
His office has also drafted a records retention policy for all town departments, including police and fire, he said.
The policy will likely result in another ordinance "to further address document destruction and the handling of Freedom of Information requests so should one individual receive a request for documents, they cannot be destroyed by another individual who's unaware of the request," he said.
Also at the hearing, Sastre suggested hearing officer Zack Hyde consider imposing fines on Hamden over its handling of Dunn's request.
Although the FOIC has the authority to impose fines for violations of the act, Hyde said he cannot do so in this case because "there was not a request for a civil penalty in the original complaint," according to a recording of the hearing.
(Last month, a Hearst Connecticut Media Group review found the FOIC deemed Bridgeport to be in violation of public records law 34 times in the last decade but only issued the city one $750 fine. Overall, the FOIC fined agencies on just six occasions since 2014.)
Hyde will issue a recommended order to the FOIC to resolve Dunn's FOI case, at which point the commission will vote on whether to adopt the order.
In addition to admitting to the records destruction, Hamden has claimed that two internal affairs reports are exempt from release on personal privacy grounds, according to Sastre. The files have been submitted to Hyde for an in-camera review, he said in an email.
In an interview Friday, Sastre claimed the town was inconsistent in which documents it destroyed.
"They didn't just destroy all of the files within that destruction request. They only destroyed some of them," he said.
Others were destroyed physically but backed up electronically, he said, while in a few cases, both the civilian complaint and the internal affairs investigation related to it was destroyed.
Sastre wondered if the department was focused on destroying certain materials.
"That inconsistency really raises their suspicion level," he said. "It looks suspicious, it looks bad. You know, it erodes the public trust."
Whether or not the records destruction was instigated because of Dunn's FOI request remains unclear. Dunn says he suspects it was "malicious;" but at a Jan. 26 FOIC hearing, LeClerc insisted "there was no deliberate destruction of documents," a recording shows.
LeClerc's firm, Berchem & Moses, is the same one that conducted the probe into the shredding, which Garrett announced last year.
Dunn has criticized the decision to have the same law firm investigate and defend the shredding in the FOI case.
"It's not an independent investigation that occurred if you have the same people that are performing the investigation also defending them at the hearing," he said.
On Friday, a reporter sent an inquiry to LeClerc and Garrett asking for comment on Dunn's criticism. The email also asked if LeClerc could say whether the records destruction was carried out with knowledge of Dunn's records request.
That email was not returned by deadline.