FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| James McKinnon, | |||
| Complainant | |||
| against | Docket #FIC 2005-563 | ||
|
Michael Lajoie, Warden, State of Connecticut, Department of Correction, Corrigan-Radgowski Correctional Institution, |
|||
| Respondent | November 8, 2006 | ||
The above-captioned matter was heard as a contested case on September 28, 2006, at which time the complainant and the respondent 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.).
Following the hearing, the Commission on its own motion made the following records full exhibits by order dated October 2, 2006. All of the complainant’s additional exhibits had been attached to the complaint and provided to the respondent prior to the hearing as an attachment to the Commission’s Notice of Hearing and Order to Show Cause dated September 8, 2006. The respondent’s additional exhibit was also provided to the Commission and the complainant prior to the hearing.
Complainant’s Exhibit G: Inmate Grievance Form A, Level 1, for inmate James McKinnon, dated October 18, 2004;
Complainant’s Exhibit H: Inmate Grievance Form A, Level 1, for inmate James McKinnon, dated April 15, 2005;
Complainant’s Exhibit I: Restrictive Housing Unit Status Order for inmate James McKinnon, dated October 15, 2004;
Complainant’s Exhibit J: Inmate Request from James McKinnon dated October 17, 2004;
Complainant’s Exhibit K: Inmate Grievance Form B, Level 2 and 3, for inmate James McKinnon, dated June 2, 2005; and
Respondent's Exhibit 2: Letter dated October 3, 2005 from ILAP to respondent, with signed release attached.
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. By letter of complaint filed November 30, 2005, the complainant appealed to the Commission, alleging that the respondent 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 respondent.
3. It is found that the complainant was transferred from his cell to restrictive housing on October 15, 2004, for a period of fourteen days. The stated reason for the transfer was:
The inmate’s … presence in the general population poses a serious threat to life, property, self, other inmates and/or the security of the institution because: PLACED ON ADMINISTRATIVE DETENTION PENDING INVESTIGATION. [Capitals in original.]
4. It is found that the complainant, at the time he was transferred, did not know why he was moved to restrictive housing.
5. It is found that the complainant, while detained in restrictive housing, inquired as to the reason for his detention from the mental health care counselor who visited him on October 15, 18 and 19, 2004, and was told that she did not know the reason for his detention.
6. It is found that the complainant on October 17, 2004, submitted a written request to unit officer Halley for the reason the complainant had been detained in restrictive housing. Officer Halley responded that he also didn’t know.
7. It is found that the complainant on October 18, 2004 filed an Inmate Grievance Form A, Level 1, stating that he asked the correction officer at the desk of the restrictive housing unit why he was in segregation, and was told by the officer that the officer didn’t know. The complainant inquired in his grievance why he had been detained in restrictive housing without the issuance of a disciplinary report against him.
8. It is found that the complainant filed an additional grievance on April 15, 2005, repeating in part his October 18, 2004 grievance, and again stating that he was moved from the general population to restrictive housing without disciplinary proceedings pending, and naming Captain Theresa Penn as having falsely charged him.
9. It is found that the complainant filed an additional grievance on June 2, 2005, alleging that he had never received a hearing, and alleging that Captain Penn refused to listen to him.
10. It is found that the complainant sought the assistance of the Inmate’s Legal Assistance Program (“ILAP”) to obtain “incident and/or disciplinary reports from Corrigan for an incident that occurred on October 15, 2004.” ILAP advised him to submit a written request for the information pursuant to the FOI Act, and to execute an authorization for the release of personal information.
11. It is found that, by letter dated May 20, 2005, ILAP further advised the complainant that a Captain S. Morton had informed ILAP that the Department of Correction had searched its records and was “unable to locate any documents pertaining to the request for information regarding an investigation without process from 10/15/04.” ILAP, based upon this representation, concluded in its letter that no such reports existed.
12. It is found that by letter dated October 3, 2005, ILAP, on behalf of the complainant, submitted a signed release from the complainant authorizing the release of documents to ILAP. In the release, the complainant identified the documents he was seeking:
I request information regarding false charges on October 15, 2004. I was 15 days in segregation without hearing due process violation, without argument I was moved out October 27, 2004 to Captain Penn’s office floor in H-unit, without disciplinary offenses ….”
13. It is found that the complainant finally made a written request dated November 8, 2005 to the respondent for the following record:
… the investigation report by Captain Theresa Penn on October 15, 2004. I was false[ly] charge[d] and move[d] from H-unit 107 cell to restrictive housing unit [for] 14 days without disciplinary pending and was without right to have a hearing.
14. It is found that, following the issuance by the Commission of the Notice of Hearing and Order to Show Cause in this case, the respondent located an incident report that describes the reason for the complainant’s detention in restrictive housing, that describes the investigation that was conducted based on the allegations against the complainant, and that concludes that the allegation made against the complainant could not be substantiated (the “Incident Report”). Although the complainant more than once initially declined the respondent’s offer of this record beginning on or about September 21, 2005, believing he should contact ILAP first, ultimately the complainant accepted delivery of the records on or about September 27, 2005, the day before the hearing in this matter.
15. 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.
16. 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.
17. Section 1-212(a), 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.”
18. It is found that the Incident Report is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
19. The respondent contends that he reasonably understood the complainant’s request as one only for records resulting from a “disciplinary” report, not for records of an “incident” report. The respondent searched for records of disciplinary reports issued concerning the complainant, and since none existed for the time period of the complainant’s detention in restricted housing, the respondent concluded that no responsive records existed. The respondent contends that, since the complainant did not specifically request an “incident” report, and the respondent considers an incident report to be different from a disciplinary report or an investigatory report, the respondent provided all the existing records—that is, none—that were responsive to the complainant’s specific request.
20. Additionally, the respondent contends that he only became aware of the possibility that the complainant was seeking an “incident” report when he saw the word “incident” in the complaint.
21. The Commission finds it difficult to credit the respondent’s contention that it was the complaint itself that caused him to consider that the complainant was seeking an “incident” report, since the word “incident” is nowhere contained in the complaint.
22. The standard for judging the required specificity of requests from the public is set forth in Perkins v. Freedom of Information Commission, 228 Conn. 158, 167 (1993):
As a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched.
23. Additionally, the circumstances surrounding the complaint, which are set forth in paragraphs 3 through 13, above, make it clear to a neutral observer that the complainant explicitly and repeatedly sought records that would explain his administrative detention in restricted housing. Specifically, the Commission notes that the complainant made persistent requests to various individuals employed at Corrigan-Radgowski Correctional Institution for the records, and even specifically and correctly identified Captain Theresa Penn not only as an author of the records requested in his November 8, 2005 request, but as someone who would not answer his questions about his detention. Further, the statement in the complainant’s request that he was placed in restrictive housing “without disciplinary [proceedings] pending” [emphasis added], is hardly, contrary to the respondent’s assertions, a reasonable justification for searching only the complainant’s disciplinary history. The fact that the complainant correctly pointed out that no disciplinary proceedings had been pending at the time of his detention should have put the respondent on notice that the records might be located somewhere other than the complainant’s disciplinary file. Finally, despite the respondent’s repeated assertions that an “incident” report is analytically different from an “investigation” report, it is clear that the complainant sought, in his words “the investigation report by Captain Theresa Penn,” and that the so-called Incident Report is in fact a report of an investigation summarized by Captain Penn. Indeed, the respondent’s own Restrictive Housing Unit Status Order indicates that the complainant was placed on administrative detention “pending investigation.” [Emphasis added.] It was entirely reasonable for the complainant to use the phrase “investigation report” in his request to the respondent, and the respondent should not have relied on the narrowest possible interpretation of the complainant’s request in order to restrict his search to “disciplinary” records.
24. It is concluded that the respondent violated the promptness requirement contained in §§1-210(a) and 1-212(a), G.S., by failing to provide the requested records until approximately ten months following the request.
25. The Commission in its discretion declines to impose a civil penalty against the respondent.
26. Since the Incident Report has been belatedly provided to the complainant, no order of disclosure is necessary.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the promptness requirement contained in §§1-210(a) and 1-212(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 8, 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:
Michael Lajoie, Warden,
State of Connecticut,
Department of Correction,
Corrigan-Radgowski Correctional Institution
c/o Sandra Sharr, Esq.
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT 06109
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-563FD/paj/11/9/2006