FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 3, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint.[1]  

           

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 §1-200(1), G.S.

 

2.  It is found that, by letter dated January 12, 2005, the complainant requested that the respondent provide him with access to, or a copy of, any and all documents held by the respondent concerning the finding of a deceased female in the area of 41 Buddington Road, Shelton, Connecticut on August 1, 1992, later identified as Kathleen Gianni of Waterbury, Connecticut, including, but not limited to “M.E. case #92-07305, any and all autopsy reports, diagrams and related documents, and all documents relative to this case” (hereinafter “requested records”).  The complainant also requested in his January 12, 2005 letter that any fees associated with the request be waived.

 

 3.  It is found that, by letter dated January 21, 2005, the Chief Medical Examiner denied the request and informed the complainant, in relevant part, that:

 

 “reports of examinations performed by [the respondent] do not come under the [Freedom of Information] FOI Act and are not available to the public.  Connecticut General Statutes and the Commission of Medicolegal Investigations govern distribution of our records.  Records are available to next of kin, attorneys involved in litigation or handling the estate of a deceased [individual], physicians involved in the patient’s care, insurance claims agents and investigating authorities.  Requests must be in writing and the reason stated why the records are required.

 

Autopsy reports in criminal cases are available to counsel for the defense through the discovery process.  Legal counsel should approach the State’s Attorney having jurisdiction to obtain the records.

 

In criminal cases, the Chief Medical Examiner must promptly notify the Office of the State’s Attorney having jurisdiction over the death of receipt of a record’s request.  The Chief Medical Examiner shall not release records in a criminal case until the State’s Attorney has indicated in writing [that there is] no objection….”

 

4.  By letter dated January 25, 2005, and filed with this Commission on January 27, 2005, the complainant appealed, alleging that the respondent violated the FOI Act by denying him a copy of the requested records. 

 

5.  Section 1-210(a), G.S., provides, in relevant part:

 

“Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours …or (3) receive a copy of such records in accordance with section 1-212….”  [Emphasis added].

 

6.  Section 1-212, G.S., provides, in relevant part: “(a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

7.  The respondent contends that the requested records are not “public records” within the meaning of §1-210(a), G.S., and that such records fall within the jurisdiction of the respondent pursuant to §19a-411, G.S. 

 

8.  Section 19a-411, G.S., provides, in relevant part:

 

“(a) the Office of the Chief Medical Examiner shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death and containing all other relevant information concerning the death and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case….

 

(b) The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the commission [on Medicolegal Investigations]. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, except that no person with a legitimate interest in the records shall be denied access to such records….”  [Emphasis added].

 

9.  It is found that the respondent has the records that are at issue in this case.  Such records consist of an autopsy report, toxicology report and numerous related records resulting from the investigation conducted by the respondent into the death of Kathleen Gianni.

 

10.  It is concluded that the records at issue and described in paragraph 9, above, constitute records of the Chief Medical Examiner, within the meaning of §19a-411, G.S. 

 

11.  In Galvin v. Freedom of Information Commission, 201 Conn. 448 (1986), the Supreme Court determined that §19a-411, G.S., is a state statute that falls within the “[e]xcept as otherwise provided” exception to §1-19, G.S., [now §1-210(a), G.S.].  Galvin at 462. 

 

12.  The complainant contends, and it is concluded, that the Court in Galvin construed the reference to §1-19, G.S., [now §1-210(a), G.S.], in §19a-411, G.S., and determined that §1-19, G.S., [now §1-210(a), G.S.], applies only when disclosure is sought to be denied to a party who otherwise complies with the conditions imposed by §19a-411, G.S., including the administrative regulations to which §19a-411, G.S., refers. Galvin at 460.   

 

13.  The complainant further contends that he has otherwise complied with the conditions imposed by §19a-411, G.S.  In this regard, he cites to Regulations of Connecticut State Agencies, §19a-401-12(f), and argues that he is “counsel of record”, within the meaning of such regulation, representing himself pro se in a pending habeas corpus petition.

 

14.  The respondent, on the other hand, contends that the complainant has not complied with Regulations of Connecticut State Agencies, §19a-401-12(f), in that: a) the court in the habeas corpus petition has not appointed the complainant “counsel of record” within the meaning of such regulation, and b) such regulation prohibits the disclosure of the records at issue when the State’s Attorney objects to such disclosure in writing.

 

15.  It is found, and the complainant acknowledged at the hearing in this matter, that the court in the habeas corpus petition has not appointed the complainant “counsel of record”.  It is also found that the State’s Attorneys Office objected to the disclosure of the records at issue in writing on March 20, 2005, indicating in such objection that there was “no federal habeas filed” as of March 20, 2005.

 

16.  Regulations of Connecticut State Agencies, §19a-401-12(f), provides, in relevant part:

 

 “Upon receipt of request from defense counsel of record in a criminal case for copies of reports in said case, the Chief Medical Examiner shall promptly notify the Office of the State’s Attorney which has jurisdiction of such request and shall release without charge therefor, within seven working days, to the defense attorney such copies as requested unless the Chief Medical Examiner is notified within said period of time that an application limiting disclosure has been made by the State’s Attorney pursuant to provisions of Section 19a-11 of the Connecticut General Statutes.  The Chief Medical Examiner shall not release the records in a criminal case to anyone else requesting them until such time as the State’s Attorney has indicated in writing no objection”.  [Emphasis added].

 

17.  It is concluded, in light of the fact that: a) the complainant has not been appointed “counsel of record”, and b) the State’s Attorney has not retracted his objection to disclosure, that the complainant has not otherwise complied with the conditions imposed by §19a-411, G.S., pursuant to Galvin, supra. 

 

18.  Based on the facts and circumstances of this case, it is further concluded that the records at issue are not disclosable at this time, and the respondent did not violate the FOI Act by failing to do so.

 

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 notes that the complainant may have a right to obtain the records at issue through discovery.

                                               

Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 2006.

 

________________________________

Petrea A. Jones

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:

 

Anthony J. Sinchak, #64249

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

 

State of Connecticut, Office of the

Chief Medical Examiner

c/o Patrick B. Kwanashie, Esq.

Assistant Attorney General

PO Box 120

Hartford, CT 06141-0120

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-035FD/paj/1/13/2006