FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Nancy Andrews and WVIT, Inc.,
Complainants
against Docket #FIC 94-238
State of Connecticut Department of Children and Families,
Respondent June 28, 1995
The above-captioned matter was heard as a contested case on February 14, 1995, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
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 filed July 19, 1994, the complainants appealed to the Commission, alleging that their June 10, 1994 request for certain information had been denied.
3. It is found that the complainants by letter dated June 10, 1994 requested documents concerning:
a. any current and past investigations concerning the license of Nancy and Ray Orsi;
b. all prior actions taken by the respondent as well as the names of those who made allegations against the Orsis; and
c. all funding and reimbursement given to Domus Amoris, a permanent family residence run by the Orsis.
4. It is found that the respondent by letter dated July 15, 1994 denied the complainants' request concerning investigations of, and actions taken against, the Orsis; but indicated that the respondent would make available information concerning the respondent's funding of the Orsis.
5. It is also found that the respondent by letter dated August 23, 1994 provided copies of spreadsheets showing amounts and dates of payments to the Orsis from July 1983 to May 1994.
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6. It is found that the list of payments was transmitted between departments of the respondent under cover of a memorandum dated August 2, 1994.
7. It is concluded that the list of payments is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
8. It is found that the respondent offered no evidence to explain either the one-month delay in initially responding to the complainants' request; the additional two-week delay in generating a five-page spreadsheet of checks to two recipients; or the three-week delay in transmitting that list of checks to the complainants once it was printed out.
9. It is found that the list of checks is reasonably responsive to the complainants' request for funding information.
10. It is also found, however, that the respondent failed to provide the list promptly.
11. It is therefore concluded that the respondent violated 1-15(a), G.S., by failing to provide a copy of a public record promptly upon request.
12. With respect to the complainants' request for records concerning investigations of the Orsis, it is found that the Orsis run a permanent family residence known as Domus Amoris.
13. It is found that the Orsis and Domus Amoris have received about $3.34 million of funding from the respondent during the period 1983 to 1994.
14. It is found that the Orsis and Domus Amoris have been the subject of complaints to and investigation by the respondents, concerning allegations of child abuse and neglect.
15. It is found the record of the respondent's investigation of the Orsis consists of a narrative record of the complaints; records of investigative interviews; and a conclusion about whether abuse occurred and whether the complaint was substantiated.
16. It is concluded that the requested investigative records are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
17. The respondent maintains that the requested records are exempt from public disclosure pursuant to 17a-28, 17a-101, 1-19(b)(2), 1-19(b)(8), 1-19(b)(10), and 46b-120.
18. Section 17a-28(b), G.S., provides in relevant part:
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Notwithstanding the provisions of section 1-19, 1-19a or 1-19b, records maintained by the department [of children and families] shall be confidential and shall not be disclosed. ... [Emphasis added.]
19. Section 17a-28(a)(5), G.S., defines the "records" that are prohibited from disclosure by 1-17a-28(b) to mean:
... information created or obtained in connection with the department's child protection activities or activities related to a child while in the care or custody of the department, including information in the registry of reports to be maintained by the commissioner pursuant to subsection (g) of section 17a-101, provided records which are not created by the department are not subject to disclosure, except as provided pursuant to subsections (c), (i) or (k) of this section. [Emphasis added.]
20. Section 17a-28(b), G.S., additionally provides that the respondent's records of any "person" shall not be disclosed without that person's consent.
21. Section 17a-28(a)(1), G.S., provides that a "person" whose consent to disclosure is required by 17a-28(b) means:
(A) any individual named in a record, maintained by the department, who (i) is presently or at any prior time was a ward of or committed to the commissioner for any reason; or (ii) otherwise received services, voluntarily or involuntarily, from the department; (B) the parent of a person, as defined in subparagraph (A) of this subdivision, if such person is a minor; or (C) the authorized representative of a person, as defined in subparagraph (A) of this subdivision, if such person is deceased.
22. Finally, 17a-101(g), G.S., provides in relevant part:
The commissioner of children and families shall maintain a registry of the reports received pursuant to this section and shall adopt regulations to permit the use of the registry on a twenty-four-hour daily basis to prevent or discover abuse of children. The information contained in the 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. [Emphasis added].
23. At the request of the respondent, the Commission takes administrative notice of its records and final decisions in the
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following contested cases, which involve the application of the exemptions contained in 17a-28(b) and 17a-101(g) (formerly 17-38(b)):
Docket #FIC 93-243, Paul B. Kraus against State of Connecticut Department of Children and Families (records of a child in the custody of the Department of Children and Families are exempt from disclosure pursuant to 17a-28(b);
Docket #FIC 90-289, Raymond H. and Elaine M. J. Grandmaison against State of Connecticut, Department of Children and Youth Services, Region III (information relative to child abuse exempt from disclosure pursuant to then 17-38a(g), G.S., now 17a-101(g), G.S.);
Docket #FIC 88-458, Helen Z. Pearl against State of Connecticut, Department of Children and Youth Services (records of child abuse not subject to disclosure, pursuant to 17-38a, G.S.);
Docket #FIC 77-186, Barbara Irwin against State of Connecticut Department of Social Services et al. (records relating to child abuse and neglect confidential pursuant to 17-38a(g), G.S.);
Docket #FIC 85-47, Michael Sinnot against Department of Children and Youth Services (records relating to child abuse confidential pursuant to 17-38a(g), G.S.) and;
Docket #FIC 78-169, Albin C. Statkum against Department of Children and Youth Services et al. (copy of complaint alleging abuse of child constitutes information relative to child abuse, and is confidential under 17-38a(g), G.S.
24. It is found that the investigative records sought by the complainants relate to allegations of child abuse and neglect, within the meaning of 17a-101(g), G.S.
25. It is also found that the records sought by the complainant were created or obtained in connection with the respondent's child protection activities, within the meaning of 17a-28(a)(5), G.S.
26. The respondent maintains that the Orsis' consent (which the complainants were unable to obtain) is required for disclosure of any records concerning them and Domus Amoris, because they are "persons" who received "services" within the meaning of 17a-28(a)(1), G.S., and who therefore fall within the ambit of 17a-28(b), which provides for the disclosure of the records of "persons" with their consent.
27. It is concluded that the Orsis are individuals within the meaning of 17a-28(a)(1), G.S.
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28. It is found, however, that the respondent failed to prove that the entity known as Domus Amoris is an individual, and therefore a person, within the meaning of 17a-28(a)(1), G.S.
29. It is found that the Orsis and Domus Amoris have received "services" from the respondent such as case management, contracting with other service agencies, payment for expenses of participating children, arrangement of visitations with natural families, and support and advocacy.
30. It is found, however, that the general phrase "otherwise received services" within 17a-28(a)(1)(A)(ii), G.S., which limits one kind of "person" whose consent is required by 17a-28(b), G.S., is illuminated by the specific language that surrounds it:
Person" means (A) any individual ... who (i) is presently or at any prior time was a ward of or committed to the commissioner for any reason; ... (B) the parent of a person, as defined in subparagraph (A) of this subdivision, if such person is a minor; or (C) the authorized representative of a person, as defined in subparagraph (a) of this subdivision, if such person is deceased. [Emphasis added.]
31. It is concluded that 17a-28(a)(1), G.S., contemplates that a "person" is an individual who receives or received services as a child, not an individual who receives some form of services from the respondent and in turn provides other services to the child.
32. It is concluded therefore that the Orsis and Domus Amoris are not "persons" within the meaning of 17a-28(a)(1), G.S.
33. More significantly, however, it is also concluded that 17a-28(a)(5), G.S., defines confidential records to include not only records "of any person" as defined in 17a-28(a)(a), G.S., but also by its plain language includes all "information created or obtained in connection with the department's child protection activities."
34. It is further concluded that the confidentiality requirement contained in 17a-28(b), G.S., is not restricted to records of a "person" as defined in 17a-28(a)(1), G.S., but by its plain language applies to all "records maintained by the department."
35. The Commission notes, as it has previously concluded, that 17a-28(b), G.S., creates a special right of access by the "person" who is the subject of the records, providing in relevant part:
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Neither the commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual, agency, corporation or organization without the consent of the person, his attorney or his authorized representative ... [Emphasis added.]
36. Although 17a-28(b), G.S., gives the "person" who is subject of the respondent's records a special right of access, the Commission has repeatedly held that it is without jurisdiction to enforce that special right of access.
37. Moreover, nothing in language of 17a-28(b) creating the specific and special right of "persons" to their records suggests that the confidentiallity of "records," as plainly defined in 17a-28(a)(5), is limited only to the records of a "person."
38. Although the Commission deplores a legislative scheme that appears to protect investigative records concerning the Orsis and Domus Amoris beyond protecting the privacy of individual children and their families, it is concluded that the Commission may not rewrite the statute to achieve its preferred policy goals.
39. It is therefore concluded that the respondent did not violate 1-19(a), G.S., by failing to disclose records concerning its investigation of the Orsis and Domis Amoris.
40. Given the Commission's resolution of the respondent's claim of exemption under 17a-28(b), G.S., the Commission concludes that it is unnecessary to address the respondent's further claims of exemption.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to its non-exempt public records, henceforth the respondent shall strictly comply with the promptness requirement contained in 1-15(a), G.S.
2. With respect to the requested investigative records, the complaint is dismissed.
3. The Commission notes that it reaches its conclusion in paragraph 2 of the order, above, with the utmost reluctance, believing it to be manifestly in the public's interest to have access to documentation of investigations such as the one described in the findings above, with appropriate redactions made to protect the privacy of the children and families involved. However, the Commission is constrained by the
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statutes enacted by the General Assembly, and is unable in this case to order the result it sees as just.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 1995.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Ms. Nancy Andrews and WVIT, Inc.
c/o Ralph Elliot, Esq.
Tyler, Cooper & Alcorn
CityPlace, 35th Floor
Hartford, CT 06103-3488
State of Connecticut, Department of Children and Families
c/o Michael Besso, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission