The Elicker administration has appealed a $1,250 open-records fine by arguing that its release of a blank file was a good-faith effort to comply with a Freedom of Information Act (FOIA) request for police body-camera footage. City Assistant Corporation Counsel Joseph Merly made that argument, am ong others, in an appeal filed by the city against the Connecticut Freedom of Information Commission (FOIC) in state Superior Court in the Judicial District of New Britain on April 9. That appeal was entered into state court records on Friday, April 24. The appeal concerns a ruling handed down by the FOIC in February against former Police Chief Karl Jacobson, the city’s police department, and the city. The FOIC found that the city had demonstrated “a clear disregard” for the public’s open-records rights by taking nearly three years to provide body-camera footage in response to a FOIA request. The FOIC decision included a fine of $1,250. “The substantial rights of the Plaintiffs, and those in their charge, have been prejudiced,” Merly wrote in the complaint and administrative appeal to that decision. The city argued that the FOIC’s decision is erroneous in view of “substantial evidence,” represents an “arbitrary or capricious abuse of discretion,” and was made upon “unlawful procedure” and “errors of fact and law.” Click here to read the city’s appeal in full. The plaintiff in the successful FOIC case — a New Havener named D. Brown — had requested body-camera footage from the New Haven Police Department (NHPD) in July 2023. FOIA requests are processed through the NHPD Records Division, which is led by Lt. David Portela. Brown filed a complaint in December 2023 with the FOIC, which is the state body that enforces the Freedom of Information Act (FOIA), when she still hadn’t received that footage. A hearing was held in May 2024 and a decision was handed down by the FOIC in November 2024 that the city and NHPD had violated the “promptness provisions” of FOIA. Portela and the NHPD testified that they respond to FOIA requests in the order in which they are received, that there were many requests ahead of Brown’s, and that they had not yet reached her request in the queue, according to the appeal. The FOIC ordered that the requested body-camera footage be released to Brown within seven days, and that Portela and the NHPD could only redact what is mandatorily exempt from disclosure under FOIA, like the identity of minors or victims of sexual or domestic abuse, and not permissive exemptions. The body-camera footage sent to Brown, however, was a completely redacted audio file with no sound or video. So Brown filed another complaint with the FOIC, which held another hearing in May 2025. At that hearing, according to an audio recording of the hearing, Portela testified that, 39 days earlier, he learned he had misinterpreted permissive versus mandatory redactions. He said he had spoken with the FOIC ombudsman in April 2025 to understand the difference. Portela said he hadn’t disclosed the body-camera footage after learning of his mistake because it pertained to a “domestic violence incident with gunfire.” If the FOIC had known about the nature of the incident Brown was requesting body-cam footage for, Portela contended, the FOIC would not have handed down the decision that it did. “That body-camera footage was redacted, removing all audio and video because that footage involved an open and active police investigation regarding domestic violence in which a firearm had been discharged,” Merly wrote in the city’s appeal, echoing what Portela said at the May 2025 hearing. “Respondents believed, in good faith, that body-camera video could not be legally produced in an unredacted form.” “At all times, respondents acted in good faith in an effort to comply with the law and the orders of the hearing officers,” Merly wrote. “Any redactions made to video provided to Ms. Brown were made in good faith and not unreasonable in light of all the circumstances.” At that May 2025 hearing, FOIC hearing officer Nicholas Smarra said that the fact of the “open and ongoing investigation” falls under permissive exemptions. However, if the case is a domestic violence incident, redactions could qualify as mandatory exemptions. He needed to know more. There’s a dispute about that May 2025 hearing: The FOIC justified its fine against the city in February 2026 by stating that the hearing officer had ordered the city to submit an affidavit outlining the legal justification for the redactions, which the city never submitted. The city’s appeal, however, states that Smarra had asked whether the city had any legal citations to justify the redactions. “The hearing officer did not order that Respondents were required to file a brief, but to submit such a brief if there existed any such caselaw,” Merly wrote. “As Respondents were unable to identify such caselaw, they did not submit such brief.” According to an audio recording of the hearing, Smarra asked Merly, “Do you have any other statute that you’re aware of that would exempt these records, or even portions of these records?” Merly said, “None of which I’m aware at this point.” If he asked Merly to file a brief, Smarra said, “if there are any other mandatory exemptions, would you be able to do that?” “That’s fine, sure,” Merly said. Then, towards the end of the meeting, Smarra returned to the brief. “So let’s talk about the brief I mentioned before,” he said. “So, do you think you could get me that by the — would a month be OK?” “That should be — yeah, that’s fine,” Merly said. “OK, so, June 30, 2025?” “June 30,” Merly said. “What I’m looking for is if there’s any other mandatory exemptions that I would need to look at,” Smarra said. Brown asked whether the FOIC would have to later follow up and ask again for the brief. Smarra said, “The respondents have the obligation to claim the exemption. If I don’t get a brief from them, I’m not going to be giving a second bite.” “I think I’m going a little bit above and beyond by giving them this opportunity because they didn’t bring any mandatory exemptions,” he continued at that hearing. “I understand it’s a very sensitive topic.” In the end, no brief was filed by the city, and the FOIC ultimately did decide that the city’s and the police department’s “disregard” of the commission’s orders and the public’s rights “constitutes a denial of the right to prompt access to public records, without reasonable grounds” — and therefore, a fine was justified. The fine is levied against Jacobson as the chief of the NHPD at the time of Brown’s complaint. Because of the city’s “good faith effort” to comply, Merly argued in the appeal, the court should “vacate” the portions of the FOIC’s order that imposed the fine. He also called for the court to reverse the FOIC’s finding that the city “showed a clear disregard for the orders of the Commission and the rights afforded to the public under the FOI Act… [and] that such disregard constitute[d] a denial of the right to prompt access to public records, without reasonable grounds.” The post City Argues “Good Faith” In FOI-Fine Appeal appeared first on New Haven Independent. ...read more read less