FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Daniel J. Buckson and Theresa C. Buckson

 

                        Complainants

 

            against              Docket #FIC 94-132

 

State of Connecticut, Department of Public Health and Addiction Services

 

            Respondent                  June 22, 1994

 

            The above-captioned matter was heard as a contested case on May 20, 1994, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            At the hearing The Day Care Center Inc., was granted intervenor status in accordance with the provisions of 1-21j-28, G.S.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent is a public agency within the meaning of 1-18a(a), G.S.

 

            2.  By letter of complaint dated April 25, 1994 and filed with the Commission on April 26, 1994, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information ("FOI") Act by denying them access to:

 

                        a.  attend a compliance conference scheduled by the respondent between itself and the Day Care Center Inc., ("hereinafter licensee"), a day-care center licensed by the respondent, and at which center the complainants' child sustained an injury; and

 

                        b.  copies of records contained in the respondent's file, concerning its investigation of a complaint filed by the complainants against the licensee, with respect to the child's injury, described in paragraph 2a., above.

 

Docket #FIC 94-132                           Page 2

 

            3.  It is found that the complainants informed the respondent of their request to attend the compliance conference, described in paragraph 2a. above, on April 22, 1994, and of their records requests, described in paragraph 2b. above, approximately two weeks prior to April 22, 1994.

 

            4.  It is found that the respondent denied the complainants' requests, described in paragraph 3 above, by letter dated May 4, 1994.

 

            5.  With respect to the allegation described in paragraph 2a. above, it is found that no statement of charges concerning alleged violations of the Public Health Code ("Code") has been issued by the respondent against the licensee.

 

            6.  It is found that the respondent has scheduled a  compliance conference between itself and the licensee, against whom it received a report of Code violations.

 

            7.  It is found that the purpose of the compliance conference is to provide the respondent with an opportunity to gather information from the licensee regarding the alleged Code violations, to attempt to negotiate a settlement regarding such alleged violations and to make an overall determination as to whether formal charges should be instituted against the licensee.

 

            8.  It is found that the only persons invited to attend the compliance conference are the licensee and/or its representative and members of the respondent's staff, such as the day care unit supervisor and investigator.

 

            9.  It is found that a licensee is under no legal obligation to attend a compliance conference and therefore attendance at such a conference is entirely discretionary.

 

            10.  Section 1-18a(b), G.S., excludes certain types of meetings from the general definition of meeting.  One such category is "an administrative ... meeting of a single-member public agency."

 

            11.  It is found that the compliance conference scheduled by the respondent between itself and the licensee is an administrative meeting within the meaning of 1-18a(b), G.S.

 

            12.  It is concluded that the compliance conference is not a meeting within the definition of 1-18a(b), G.S.

 

            13.  It is therefore concluded that with respect to the allegation described in paragraph 2a., above, the respondent has not violated any of the complainants' rights under the FOI Act.

 

Docket #FIC 94-132                           Page 3

 

            14.  With respect to the allegation described in paragraph 2b. above, it is found that the requested records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.

 

            15.  It is found that one of the records at issue, contained in the respondent's investigation file, is a letter dated April 28, 1994 which the complainants have submitted for in camera inspection.

 

            16.  It is found that the April 28, 1994 letter consisting of two pages and designated as in camera document number 94-132-1 notifies the licensee that certain Code violations have been reported to the respondent against the licensee, and invites the licensee to attend the compliance conference referred to in paragraphs 2a., 3, 6, 7, 8, 9, 11 and 12, above.

 

            17.  It is found that the respondent's investigation file also contains records received from the Department of Children and Families concerning the child's injury, referred to in paragraph 2b., above, among other records.

 

            18.  The respondent contends that all of the records contained in its investigation file are protected from disclosure pursuant to 17a-101(g), 1-19(b)(2), 1-19(b)(4), 1-19(b)(10) and 1-19(c)(1), G.S.

 

            19.  Section 17a-101(g), G.S., provides in pertinent part:

 

                        "The information contained in [the Department of Children and Families] reports and any other information relative to child abuse, wherever located, shall be confidential subject to such regulations governing their use and access as shall conform to the requirements of federal law or regulations.

 

            20.  Section 1-19(b)(4), G.S., provides in pertinent part that:

 

                        Nothing in [the Freedom of Information Act] shall be construed to require disclosure of (4) records pertaining to strategy and negotiations with respect to pending ... litigation to which the public agency is a party until such litigation ... has been finally adjuducated or otherwise settled.

 

            21.  Pending litigation is defined at 1-18a(h), G.S., as "(3) the agency's consideration of action to enforce or implement legal relief or a legal right."

 

Docket #FIC 94-132                           Page 4

 

            22.  It is found that the respondent is at present considering whether to institute formal charges against the licensee or will attempt to negotiate a settlement with the licensee regarding the alleged Code violations, referred to in paragraph 6, above.

 

            23.  It is therefore concluded that some of the requested records contained in the respondent's investigation file pertain to strategy and negotiations with respect to pending litigation within the meaning of 1-19(b)(4), G.S.

 

            24.  However, it is found that in camera document number 94-132-1 does not constitute a record which falls within the purview of the exemption at 1-19(b)(4), G.S.

 

            25.  It is also found that besides its broad and general claim of confidentiality the respondent has failed to prove that all of the requested records contained in its investigation file are protected from disclosure pursuant to 17a-101(g), 1-19(b)(1), 1-19(b)(2), 1-19(b)(10) and 1-19(c)(1), G.S.

 

            26.  It is therefore concluded that with respect to the allegation described in paragraph 2b., above, the respondent violated 1-15(a) and 1-19(a) of the FOI Act when it denied the complainants access to in camera document 94-132-1 and any other document not exempt under 1-19(b)(4), G.S.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  The complaint is hereby dismissed with respect to the allegation described in paragraph 2a. of the findings, above.

 

            2.  With respect to the allegation described in paragraph 2b. of the findings, above, the respondent shall forthwith review its investigation file and provide the complainants with all records not within the purview of the allowed exemption at 1-19(b)(4), G.S. and privileged under the attorney-client relationship as exempt at 1-19(b)(10), G.S.

 

            3.  In complying with the Commission's order as stated in paragraph 2, above, the respondent may redact portions of all documents to be disclosed in order to keep confidential the identities of children, parents and guardians whose identites are protected by federal law.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 22, 1994.

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission

 

Docket #FIC 94-132                           Page 5

 

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

Daniel J. Buckson and Theresa C. Buckson

12 Shady Lane

Bolton, CT 06043

 

State of Connecticut, Department of Public Health

and Addiction Services

c/o Elizabeth A. O'Dea, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

 

The Day Care Center, Inc.

c/o Carole W. Briggs, Esq.

Siegel, O'Connor, Schiff & Zangari, P.C.

370 Asylum Street

Hartford, CT 06103

 

                                                                  

                                    Debra L. Rembowski

                                    Clerk of the Commission