Greenwich PD must review records before citing FOIA exemption

Greenwich police cannot cite exemptions to the Freedom of Information Act (FOIA) to prevent disclosure of records prior to a review of those records. The finding comes from a recent decision issued by New Britain superior court and is the latest development in a records dispute stretching back to 2020.

On May 22, 2020, Meredith Braxton, on behalf of client Brian Scanlan, requested a copy of documents related to an alleged sexual assault from the Greenwich Police Department. Braxton requested documents or database information reflecting changes made to the investigation file in the alleged assault, as well as changes made to the arrest warrant.

Braxton’s request also included two sets of database commands she suggested the department could use to retrieve information from the department’s database, which was supplied by software company NexGen Public Safety Solutions.

On June 16, 2020, the police department informed Braxton that they did not have any information about changes that could have been made to the investigation file and that NexGen had told them it could not produce prior versions of the documents or the requested changes.

Braxton then clarified that she was not seeking different versions of the documents. She was seeking database information that reflected changes made to the files within the NextGen system.

In subsequent communication on June 23, the police department again stated that the records could not be produced.

They also stated that, even if they could be produced, they would be exempt from FOIA. Under the law, preliminary drafts and notes are exempt from disclosure if “the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”

Braxton then filed a complaint with the FOIC on July 7, alleging Greenwich police violated FOIA by denying the request.

At an August 2, 2021, hearing on the case, the police department reiterated claims that they did not maintain prior versions of the documents Braxton was seeking. As evidence this wasn’t true, Braxton offered testimony and evidence obtained through an affidavit from NextGen’s chief development officer.

In their decision in the case, the FOIC found that that reports and other documents in the NextGen database can be edited and revised until they are reviewed and approved by a commanding officer. They also found that NextGen has access to all of the department’s computer servers and the information stored on them.

NextGen’s chief development officer wrote the database commands Braxton included in her initial FOIA request, which if executed would produce a rich text format (RTF) file of changes made to records in the databases. NextGen had the ability to perform the commands.

But, according to the FOIC’s decision, prior to receiving the commands as part of Braxton’s FOIA, the police department had no knowledge of the commands or how to use them to create the RTF file. They also did not have a staff member trained in running the commands.

But, following the August hearing, the FOIC noted, the department was aware that “a file showing additions and deletions to the report and arrest warrant application, to the extent those records had been edited, would be maintained in the database and accessible by running the database commands.”

Despite having that information, the FOIC noted that the police department had not requested the command be run and instead claimed the records were exempt from disclosure. But the police department also didn’t offer any evidence that providing any specific records would violate the statute. The department had not reviewed the records at the time. The FOIC found that Greenwich police failed to prove the records met the exemption.

The department then turned to a different FOIA exemption, which states law enforcement records that are not otherwise available to the public and were compiled in connection with the investigation of a crime don’t have to be disclosed if they would result in certain information, including that would prejudice law enforcement action, would be revealed.

The FOIC didn’t find that argument persuasive either, noting in their decision that no arrest warrant had been signed as part of the assault investigation and that the investigation was closed, meaning there was no prospective law enforcement action that could be prejudiced.

The commission found Greenwich police violated FOIA and ordered the records to be turned over free of charge within fourteen days of receiving notice of the decision.

The department then filed an administrative appeal, arguing the order for them to run the commands on their computer system in order to generate the changed files violated both FOIA’s exemption for preliminary drafts and another exemption for software records and processes that are not otherwise available to the public and which could compromise the security of an information technology system if disclosed.

The trial court issued a decision agreeing in part with the police, arguing the FOIC’s finding was in the wrong because the records were clearly preliminary drafts and exempt from disclosure. It rejected their argument that the exemption for software records applied.

Braxton then appealed the trial court’s decision. The superior court found that the FOIC’s finding that Greenwich police had not proved the records were exempt from disclosure as preliminary notes was correct because the department had not searched for or reviewed any records.

However, it found that the FOIC’s order that the department turn the records over to Braxton free of charge abused its discretion. The court found that because the records had not been reviewed, the order to disclose the records could result in exempt information from being disclosed. The appropriate remedy, according to the court, was for the police to conduct the search for records and review them to determine whether any records were exempt from disclosure.

Second, the court found that the FOIC’s order that the records be provided free of charge abused the commission’s discretion because Braxton had agreed to pay the costs and because the existence of the records was only confirmed after Braxton filed her complaint.

The court did uphold the lower court’s finding that the records were subject to FOIA’s exemption for software records. The case was remanded to the trial court, with direction to remand the course to the FOIC for further action in keeping with the superior court’s decision.

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