FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on March 1, 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.).  

 

At 4:00 p.m. on the date of the hearing, which was held at 9:30 a.m., the complainant telefaxed to the Commission ten documents and requested that they be made exhibits in this case.  The hearing officer denied the request, on the grounds that the records were not submitted prior to the hearing, as required by the January 2004 memorandum of understanding, and also on the grounds that the records were duplicative of other evidence presented at the hearing.

 

            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 September 19, 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, and requesting the imposition of civil penalties against the respondents. 

           

3.  It is found that the complainant made identical written requests dated September 6, 2005 to the respondents for the following records:

 

a.       A copy of the “Aurora” tapes of the gym recorded at Corrigan on December 12, 2002;

b.      A copy of the “Aurora” tapes of the gym recorded at Corrigan on December 15, 2002;

c.       A copy of the “Aurora” tapes of the escort of the complainant to medical attention by officers at Corrigan on December 15, 2002;

d.      A copy of the video tapes of the escort of the complainant by officers at Corrigan on December 15, 2002;

e.       A full and complete copy of tours and inspections in the gym at Corrigan on December 15, 2002; and

f.        A full and complete copy of the population count held in the gym at Corrigan on December 12, 2002.

 

4.  It is found that the respondents acknowledged the complainant’s requests on September 13, 2005, and indicated that the requested records were not available.

 

5.  It is found that the respondents further replied by letter dated January 12, 2006 that the tapes described in paragraphs 3.a, 3.b, and 3.c were “not available,” that the record described in paragraph 3.e was “unavailable,” and that the records described in paragraphs 3.d and 3.f could not be provided “due to safety and security.”

 

6.  It is found that all of the requested records pertain to the use of force and a chemical agent to subdue the complainant during an incident at Corrigan Correctional Institution (“Corrigan”) on December 15, 2002. 

 

7.  It is found that the “Aurora” tapes described in paragraphs 3.a, 3.b and 3.c, above, refer to tapes made by an automated surveillance system. 

 

8.  It is found that no “Aurora” tapes made on December 12 or 15, 2002 recorded the incident described in paragraph 6, or any other incident requiring preservation of the tapes, and that therefore such tapes were not retained at the time, but were re-used. 

 

9.  It is also found that the “Aurora” system did not record the escort of the complainant to medical attention following the incident described in paragraph 6, although hand-held cameras, as described in paragraph 12 below, recorded the escort.

 

10.  It is therefore found that the “Aurora” tapes described in paragraphs 3.a and 3.b no longer exist, and that the “Aurora” tape described in paragraph 3.c never existed.

 

11.  It is found that the records described in paragraphs 3.e and 3.f similarly were only retained for 30 days, pursuant to the respondents’ records retention schedules, and therefore no longer exist.

 

12.  It is found that two hand-held video recordings were made while escorting the complainant to receive medical attention, and that such recordings are responsive to paragraph 3.d of the complainant’s request.

 

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.  It is found that the records described in paragraph 12 are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

16.  The respondents contend that the records described in paragraph 12 are 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 ….

17.  However, at the hearing, the complainant withdrew his request to inspect the records described in paragraph 12, requesting only that those records be retained.  It is therefore unnecessary to conclude whether the respondents have reasonable grounds to believe that disclosure of the records described in paragraph 12 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, all within the meaning of §1-210(b)(18), G.S.

 

18.  The Commission commends the respondents for retaining to date the records described in paragraph 12.  Although an order to retain those records is beyond the Commission’s jurisdiction, the Commission nonetheless requests that the respondents do so.

 

19.  It is therefore concluded that the respondents did not violate §1-210(a), 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 dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 13, 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:

 

Bristout Bourguignon #265860

Garner Correctional Institution

P.O. Box 5500, 50 Nunnawauk Rd.

Newtown, CT  06470

 

Theresa C. Lantz, Commissioner,

State of Connecticut,

Department of Correction; and

George K. Wezner, Warden,

State of Connecticut,

Department of Correction,

Corrigan-Radgowski Correctional Institution

c/o Sandra Sharr, Esq.

24 Wolcott Hill Road

Wethersfield, CT  06109

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-452FD/cac/9/14/2006