THIRD AND FINAL STATEMENT BY ALFRED (“CHUB”) WILCOX:
The Rose Opinion Letter
Voters have seen the October 7, 2021 opinion letter by Attorney Michael Rose posted by Chief Spera on the OSPD website and read aloud by Chairman Keeney at the October 19 special meeting of the Police Commission. They have also seen statements by Mr. Spera and Chairman Keeney touting that letter as a way of blasting Renee Shippee and me, just weeks before the November 2 election. The voters are entitled to my response.
I don’t know the “facts” or “issues” Chief Spera instructed Mr. Rose to assume or to address (because Mr. Spera refused to let me see them), and so I am reluctant to overly criticize Mr. Rose. However, having enjoyed a forty year career as a litigation attorney, I understand the laws he cites and the analysis he makes.
That analysis is fundamentally flawed:
John Doe’s records were his private records, not “public records” of the police department.
Mr. Rose is therefore wrong in his FOIA analysis.
Mr. Rose therefore greatly exaggerates any risk of liability on the part of the Town.
For those readers interested in the bases for my assessment, here it is.
JOHN DOE’S RECORDS ARE HIS PRIVATE RECORDS
Chief Spera has acknowledged that the records John Doe shared with each of the Commissioners were lawfully in his possession, and that John Doe was not under any legal constraint preventing him from sharing them with the Commissioners or anyone else. John Doe’s records are therefore his private records, not “public records” that must be kept and maintained at the police department (“OSPD”).
MR. ROSE IS THEREFORE WRONG IN HIS FOIA ANALYSIS
The whole purpose of FOIA is to enable private citizens to review and obtain copies of public records. That is why FOIA requires that public records must be “kept and maintained” in an accessible place at the public agency’s regular office or place of business. In response to a FOIA request a private citizen can obtain his or her copy of the public record. That copy thereupon becomes the citizen’s private record. FOIA does not mandate that the public agency is required to grab the citizen’s copy back, because to do so would defeat the whole purpose of FOIA. Similarly, FOIA doesn’t prevent the citizen from sharing what is now their private record with anyone they choose.
Mr. Rose thus mistakenly assumes that the document in my possession is a “public record” of the OSPD which I must return to that department. But it is not a public record; it is my copy of a private record, mailed to me by a private citizen who was entirely within his rights in doing so.
MR. ROSE GREATLY EXAGGERATES THE TOWN’S RISK OF LIABILITY
Mr. Rose says that if the police department doesn’t safeguard these documents from public view, then the “Department and the person who has the records are subject to whatever punishment the [FOIA] Commission deems appropriate as well as any civil suit should the documents fall into the hands of any member of the public….”
As noted above, the documents in question are not police department documents any longer.
Moreover, the civil penalty provided under FOIA is no less than $20 and no more than $1000. It can only be imposed “upon the finding that a denial of any right created by the [FOIA] was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing.” Sec. 1-206(b)(2). Since the Town is neither granting inappropriate access unreasonably (so far as I know) nor denying appropriate access unreasonably, the risk of any liability under this section seems extraordinarily remote.
Similarly, since the Town is neither granting nor refusing access unreasonably, nor presumably being sloppy in maintaining the department’s records, it is difficult to imagine how the Town is at risk of liability in an “invasion of privacy” type private lawsuit.
Finally, since I have not and will not expose the documents in my possession to anyone, I think the concern hypothesized by Mr. Rose that I might allow the records to “fall into the hands of a member of the public” is not worth considering. I have had these documents in my possession since early July, and none of them has yet to see the light of day, despite incessant goading by Chief Spera and others to get me to say more about these documents in order to correct the misimpressions being circulated. I hope that gives all concerned comfort that I am not a “loose cannon” about to plaster these documents on some public forum. I strive to adhere to the high standard of circumspection the public has a right to expect from a member of the Police Commission, consistent with the oath I took when I was sworn in as a commissioner.