FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 20, 2006, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See  Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.). 

 

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

 

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed August 29, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with his requests for public records. 

 

            3.  It is found that the complainant made a written request dated August 9, 2005 to Major Rose at Northern Correctional Institution [“Northern”] for all reports of incidents occurring from June 26, 2005 until July 23, 2005.  The complainant asserted that he was indigent and requested a waiver of fees.

 

4.  It is found that Major Rose replied:

 

 Mr. Quint – Please review your inmate handbook.  DOC Policy does not waive fees for FOI.  The cost of your request is $25.75 (25¢ per page x 103 pages.)  When the above amount is received by check payable to ‘Treasurer, State of CT” the copies you requested will be sent to you.  [Emphasis added.]

 

5.  At the hearing, the complainant indicated that he had received the records in response to his August 9, 2005 request and was satisfied with the response.

 

6.  It is found that the complainant, again asserting his indigence and requesting a fee waiver, also made a written request dated August 12, 2005 to the Warden of Northern for:

 

a.       The amended settlement agreement with OPA [the Office of Protection and Advocacy] authorizing special precaution cells; and

b.      All policies and procedures for special precaution cells.

 

7.  It is found that the complainant received, on March 9, 2006, the following records in response to his August 12, 2005 request:

 

a.       Suicide Prevention Directive Number 8.1.4.1 (7 pages);

b.      A February 2, 2006 email from Chaplin to Furey, transmitting the “UCONN policy and procedure [described in subparagraph d below] and the U.D. for NCI [described in subparagraph a above] that allows for special precautions”  [The first names of the sender and recipient of this email were redacted];

c.       A June 15, 2005 email from Helfand to Bogdanoff and others transmitting the “Mental Health Special Precautions policy” [described in subparagraph d below] [with first names of the sender and the recipients redacted]; and

d.      “Special Precautions for Inmates at Northern CI” [from which paragraphs 14 and 15, and the first names of the University of Connecticut Correctional Managed Health Care Directors and the Department of Correction Health Services Director, who approved the precautions, were redacted].

 

8.  It is found that the complainant, again asserting his indigence, also made a written request dated August 15, 2005 to Brian Hickock at the University of Connecticut Correctional Managed Health Care [“CMHC”] program for the following records:

 

a.       All documents showing statistics, purpose and price of Ferguson Safety Gowns;

b.      The receipts for the purchase of Ferguson Safety Gowns from the manufacturer; and

c.       The name and address of the manufacturer of Ferguson Safety Gowns used by the CMHC and the respondents.

 

9.  It is found that the Mr. Hickock by letter dated August 18, 2006 informed the complainant that CMHC had “nothing to do with purchasing or processing of purchase orders,” and advised the complainant to contact “Fiscal Services” at 24 Wolcott Hill Road in Wethersfield.

 

10.  At the hearing, the complainant withdrew the portion of his complaint pertaining to his August 15, 2005 request, described in paragraph 8, above.

 

11.  Finally, it is found that the complainant by another letter dated August 15, 2005 to the Food Services Supervisor at York Correctional Institution, requested the following records, again asserting his indigence and requesting a waiver of fees:

 

a.       The dietary preparation menu for all four cycles;

b.      A list of the caloric breakdown of all meals served on the menu; and

c.       The amount of calories that must be served by law.

 

12.  It is found that the complainant received, on March 9, 2006, the “Connecticut D.O.C. Master Menu 2005, Cycles 1 through 4” in response to his August 15, 2005 request.  Additionally, the respondents agreed to provide to the complainant, at the hearing on this complaint, the “Master Menu 2005 Therapeutic Diet Production Worksheet” and “Dietary Reference Intakes: Estimated Energy Requirements for Men and Women 30 Years of Age.”

 

13.  Section 1-200(5), G.S., provides:

 

    “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

14.  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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

 

15.  Section 1-212(a)(1), G.S., provides in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.  The fee for any copy provided in accordance with the Freedom of Information Act:

 

(1) By an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page ….

 

16.  Additionally, §1-212(d)(1), G.S., provides:  “The public agency shall waive any fee provided for in this section when: (1) The person requesting the records is an indigent individual ….”

 

17.  It is found that the requested records, to the extent they exist, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

            18.  With respect to the complainant’s August 12, 2005 request, and the August 15, 2005 request described in paragraph 11, above, it is found that the provision of records on March 9, 2006 was not prompt within the meaning of §1-212, G.S.

 

19.  It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide copies of public records promptly upon request.

 

20.  With respect to the completeness of the response to the complainant’s August 12, 2005 request, it is found that the respondents do not have a copy of an amended settlement agreement with OPA concerning special precaution cells. 

 

21.  With respect to the redactions in the records provided in response to the complainant’s August 12, 2005 request, the respondents contend that the redacted information is exempt from disclosure pursuant to §1-210(b)(18), G.S., which provides that the respondents are permitted to withhold:

          Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

(A) Security manuals, including emergency plans contained or referred to in such security manuals;

(B) Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

 (C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility, or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(D) Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(E) Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

(F) Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers ….

22.  It is found that part of the information redacted from the records described in paragraphs 3 and 7, above, is the first names of Connecticut public employees.

 

23.  The Commission takes administrative notice of the fact that the first names of Connecticut public employees are a matter of public record.

 

24.  It is found that the respondents offered no evidence to prove that disclosing the first names of employees of the Department of Corrections would result in a safety risk.

 

25.  It is concluded that the respondents did not have reasonable grounds to believe that disclosure of the first names of public employees employed by the Department of Corrections would result in a safety risk.

 

26.  The respondents further contend that the two paragraphs redacted from page 2 of the “Special Precautions for Inmates at Northern CI,” as described in paragraph 7.d , above, are “verbiage that describes how an inmate may facilitate a transfer from Northern Correctional Institution by self-inflicted harm,” and that therefore disclosure would result in a safety risk within the meaning of §1-210(b)(17), G.S.

 

27.  It is found, however, that the respondents do not have reasonable grounds to believe that an inmate would, as a result of the disclosure of the redacted information, inflict harm on himself.  While the Commission acknowledges that the respondents may reasonably believe that some inmates already inflict harm on themselves in order to be transferred or for other reasons, no grounds other than speculation were offered to show that such behavior would increase as a result of disclosure of the redacted information.  Indeed, records already provided to the complainant indicate that inmates are well aware that inflicting or threatening to inflict harm on themselves may achieve certain desired results.   One such record explains that:

 

[Special precautions are] required for inmates who may be involved with the intentional production of false or grossly exaggerated psychological or physical symptoms, including suicidal intention, possibly motivated by external incentives such as evading criminal prosecution, avoiding assigned cell partners, avoiding prison or cell transfer, and avoiding living conditions perceived as unpleasant.

 

28.  It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to disclose the redacted information.

 

29.  With respect to the completeness of the records provided in response to the complainant’s August 15, 2005 request described in paragraph 11, above, it is found that the respondents provided all the records in their possession that are responsive to the request, as described in paragraph 12, above.

 

30.  With respect to the complainant’s request that copying fees be waived because he is indigent, it is found that the complainant had a balance of $4.00 or less in his Department of Correction trust account from October 31, 2002 through August 2, 2005, just prior to the first of the requests that are the subject of this complaint.

 

31.  It is found that the complainant is indigent under the respondents’ general standard of indigence, since the complainant’s account contained less than $5.00 for more than a ninety-day period.

 

32.  At the hearing, the respondents did not contest the complainant’s assertion of indigence, made in each of his requests.  The respondents did however generally deny, as recited in paragraph 4, above, that the Department of Corrections does not waive fees for FOI requests as a matter of policy.

 

33.  It is found that the respondents’ assertion that they do not waive fees for FOI  requests was dated approximately three weeks after the Commission’s final decision in Kiewhon Canady v. Commissioner, State of Connecticut, Department of Correction, docket #FIC 2004-366, which ordered the Commissioner of Correction forthwith to apply the same standard of indigence to all FOI Act requests by inmates that it applies to other inmate matters generally.

 

34.  However, it is also found that no evidence was presented whether or not the respondents waived the copying fees for the records it provided to the complainant, and that the complainant did not raise this issue at the hearing.

 

35.  The Commission therefore declines to reach any conclusions concerning whether the respondents violated §§1-212(d)(1), G.S., by failing to apply their general standard of indigence to the complainant’s request for a waiver of fees.  However, the Commission is concerned that the respondents may not yet have communicated the Commission’s order in FIC 2004-366 to those individuals in the respondents’ facilities who are responsible for determining fee waivers under the FOI Act.

 

 

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

 

            1.  The respondents shall forthwith provide unredacted copies of the records described in paragraphs 3 and 7, above, to the complainant, at no charge.

 

2.  The respondents are advised that each of their officers and employees responsible for providing records under the FOI Act is deemed to have knowledge of the Commission’s order in docket #FIC 2004-366.  The Commission further advises the respondent to ensure that such officers and employees have actual knowledge of that case.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 23, 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:

 

Richard R. Quint

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT 06470

 

Warden, State of Connecticut,

Department of Correction,

Northern Correctional Institution; and

Warden, State of Connecticut,

Department of Correction,

York Correctional Institution

c/o Lynn D. Wittenbrink, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-410FD/paj/8/24/2006