Lieutenant’s Thumb Drive Subject To Disclosure

Duane Tompkins was a lieutenant with the Enfield, Connecticut Police Department. Tompkins downloaded certain official departmental forms onto his personal thumb drive for use by one of the officers in the Department’s canine unit. Prior to downloading the forms onto the thumb drive, Tompkins deleted from it all of his personal documents, including the texts of several instant message conversations between himself and other unidentified individuals and other personal records.

A year later, when a new canine officer attempted to open the files on the thumb drive, he found that he could not do so. To determine what was wrong with the thumb drive, the officer brought it to a computer technician who was not affiliated with the Department. Discovering that certain files on the thumb drive were corrupted, the technician attempted to recover them. In so doing, the technician inadvertently uncovered the personal records that Tompkins thought he had permanently erased.

The technician provided the canine officer with a disk of the recovered files and informed him that he would need to review the files in order to locate the desired forms. Upon reviewing the disk, however, the officer found Tompkins’s instant message conversations as well as other records tending to demonstrate improper off duty conduct by Tompkins. The canine officer then turned the disk over to the Department for its review.

The Department began an internal affairs investigation as to both the origins of the recovered thumb drive records and Tompkins’s fitness for duty as a police officer. Fairly quickly, the Department and Tompkins entered into an agreement severing his employment with the Town as of July 9, 2008.

On October 15, 2007, a newspaper requested the Town to produce all records dealing with the investigation of Tompkins. When the Town initially refused to disclose the documents, including the contents of the thumb drive, the issue wound up in the Connecticut Court of Appeals.

The Court ordered the release of the requested information. The Court started with the proposition that “public policy favors the disclosure of public records. Any exception to that rule will be narrowly construed in light of the general policy of openness expressed in the legislation.

“The person claiming the exemption must meet a twofold burden of proof. First, he must establish that the files at issue are personnel, medical or similar files. In this case, there is no dispute that the newspaper sought disclosure of personnel or similar files. Second, he must prove that disclosure of the files would constitute an invasion of his personal privacy.

“The test for determining whether a disclosure constitutes an invasion of personal privacy precludes disclosure only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person. We find that Tompkins’s conduct did implicate his job as a public official. The subject records were of two types: (1) verbatim transcripts of instant message conversations between Tompkins and other, unidentified individuals; and (2) documentation from the internal affairs investigation. Tompkins’s instant message conversations pertained to a legitimate matter of public concern in that they contain the information which formed the basis for and triggered the internal affairs investigation in this case. Disclosure of the instant message conversations was necessary to facilitate the public’s understanding and evaluation of the Department’s investigative process, decision-making and overall handling of an important matter involving a fellow police officer.

“Furthermore, the documentation from the internal affairs investigation evidenced a continuing practice that could pose a danger to portions of the public. As to the records’ description of Tompkins’s off duty conduct, the conduct was egregious, and Tompkins remained on the payroll of the Town for ten months after the execution of the severance agreement. This adds to the legitimacy of the public concern in this case.”

Tompkins v. Freedom of Information Com’n, 46 A.3d 291 (Conn. App. 2012)

Note: The Court’s rationale in this case is awfully close to a holding that every police internal investigation is subject to disclosure. Public records laws – and the exemptions from disclosure – vary significantly from state to state, so the Tompkins result might not be the same outside of Connecticut.