FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Gail Pflederer,

Complainant

against Docket #FIC 1997-230

State of Connecticut, Department of

Public Health, Division of Community

Based Regulation,

Respondent February 11, 1998

The above-captioned matter was heard as a contested case on October 27, 1997, at which time the complainant 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(1), G.S. (prior to October 1, 1997, §1-18a(a), G.S.).

2. By letter dated June 23, 1997, the complainant requested that the respondent provide her with access to all records relating to the termination of a specified employee at a state-licensed day care center, as well as all records relating to an incident which occurred at that center on or about April 16, 1997.

3. By letter dated July 1, 1997, the respondent promptly responded to the complainant’s request and denied access to the requested records.

4. By letter dated July 25, 1997 and filed with the Commission on July 29, 1997, the complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act by denying her access to the requested records.

5. It is found that the requested records are public records within the meaning of §§1-18a(5), G.S. (prior to October 1, 1997, §1-18a(d), G.S.) and 1-19(a), G.S.

6. Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained…by any public agency…shall be public records and every person shall have the right to inspect such records promptly during regular office…hours or to receive a copy of such records….

7. Federal regulations implementing the federal Child Abuse Prevention and Treatment Act, 42 U.S.C. §5106, et seq., provide in part that:

…[t]he state must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense. 45 CFR §1340.14(i)(1).

8. Conn. Gen. Stat. §17a-101k, provides in relevant part that:

…[t]he information contained in the reports [of alleged child abuse and neglect] and any other information relative to child abuse, wherever located, shall be confidential….

9. It is found that the respondent and the state Department of Children & Families conducted a joint investigation into the incident more fully described in paragraph 2, above.

10. On October 1, 1997, the respondent informed the complainant that it had substantiated a claim of emotional neglect with respect to a report it had received on April 18, 1997 alleging child abuse/neglect at the subject day care center.

11. The complainant contends that certain of the requested records do not fit within the language of §17a-101k, G.S., which only makes confidential two categories of records: (a) reports of abuse and neglect; and (b) information relative to abuse. Specifically, the complainant contends that information relative to neglect is not exempt pursuant to §17a-101k, G.S.

12. On November 3, 1997, the respondent provided the subject records to the Commission for an in-camera inspection.

13. It is found that the federal regulation and state statute cited in paragraphs 7 and 8, above, provide a broad grant of confidentiality with respect to information pertaining to child abuse.

14. Based upon a review of the records submitted for in-camera inspection, it is further found that such records constitute reports of abuse and information relative to abuse within the meaning of §17a-101k, G.S.; and it is therefore concluded that such records are exempt from disclosure based upon the provisions thereof.

15. The complainant further contends that the respondent has failed to comply with P.A. 97-259, §9, which mandates that the state Department of Public Health make available certain information concerning substantiated allegations of child abuse and neglect to the public.

16. The Commission, however, has jurisdiction only over alleged violations of the FOI Act and lacks the power to enforce the provisions of P.A. 97-259.

17. The complainant further contends that state agencies should not be permitted to invoke confidentiality in instances when confidentiality has already been breached. In this case, the complainant contends that the subject employee made public statements regarding the incident described in paragraph 2, above.

18. The complainant’s argument described in paragraph 17, above, although appealing from a public policy standpoint, must fail in view of the broad confidentiality mandates set forth in paragraphs 7 and 8, above.

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.

2. The Commission’s finding and conclusion in paragraph 14, above, should not be construed as commenting on the respondent’s finding described in paragraph 10, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 11, 1998.

_________________________

Doris V. Luetjen

Acting Clerk of the Commission

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:

Gail Pflederer

46 Valley Road

Stamford, CT 06902

State of Connecticut, Department of

Public Health, Division of Community

Based Regulation

c/o Atty. Paul J. Lahey

Assistant Attorney General’s Office

55 Elm Street

Hartford, 06141-0120

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-230/FD/tcg/02111998