FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 30, 2007, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The case-caption has been amended to reflect the correct title of the respondent.

           

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 March 19, 2007 (the March 19 letter), the complainants requested access to:

 

a.       “[a] list of the names and addresses of 41 convicted sex offenders, whose names are currently known only to law enforcement personnel under [§]54-255, [G.S.]”

 

Alternatively, if such request was denied, the complainants requested, in their March 19 letter:

 

b.      “…the court orders restricting those 41 sex offenders to the non-public sex offender registry, and any public information the Department has regarding the offenders’ convictions.”

 

3.  By letter dated March 20, 2007, the respondent informed the complainants that their request for information had been referred to it “for review and response” and that the complainants would “be notified as soon as possible of the results of [the] review as well as any fees that may be due.”

 

4.  It is found that, on May 7, 2007, the complainants contacted the respondent by telephone to inquire as to the status of their request.  It is also found that the respondent, on May 7, 2007, replied, via email, that “the matter is still under review by this office.”

 

5.  It is found that, on May 8, 2007, the complainants, via email, inquired further into the status of their request, specifically asking the respondent when they could expect a response.  It is found that the respondent replied, via email, that “[w]e continue to process your request and will advise you as soon as possible of the results of our review.”

 

            6.  By letter dated May 14, 2007 and filed May 16, 2007, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide them with the records described in paragraphs 2.a or 2.b, above. 

 

7.  By letter dated May 25, 2007 (the May 25 letter), the respondent provided 92 pages of records to the complainants.  The May 25 letter explained that “[e]ach page has been partially redacted pursuant to Connecticut General Statutes [§] 54-255” and that “one (1) of the pages has been partially redacted pursuant to Connecticut General Statutes Section 17a-101k.”

 

8.  It is found that the list of names and addresses requested by the complainants and described in paragraph 2.a, above, was not included in the 92 pages of records provided to the complainants.

 

9.  It is found that, with respect to the request described in paragraph 2.a, above, the respondent did not maintain a list of the 41 convicted sex offenders at issue in this matter.  It is therefore concluded that the respondent legal affairs office did not violate the FOI Act in failing to provide the list described in paragraph 2.a, above, to the complainants. 

 

10.  With respect to the request described in paragraph 2.b, above, at the hearing in this matter, the complainants claimed that the redactions made in each of the 92 pages were over-inclusive, and by such redactions, the respondent improperly withheld information from them.  Moreover, the complainants assert that the response provided to them by the May 25 letter, was not “prompt” within the meaning of the FOI Act.

 

11.   Section 1-200(5), G.S., provides, in relevant part:

 

“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 … whether such data or information be handwritten, typed, taped-recorded, printed, photostated, photographed or recorded by any other method.

 

12.   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).  

 

13.  Section 1-212(a), G.S., provides, in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”  (Emphasis added).

 

14.  It is found that the requested records, to the extent they are maintained by the respondent, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

15.  Section 54-255, G.S., cited by the respondent, is a provision of Connecticut’s version of “Megan’s Law”, codified at §§54-250 through 54-261, G.S.  Megan’s Law, in essence, requires an individual convicted (or found not guilty by reason of mental disease or defect) of certain criminal offenses, most of them sexual in nature, to register with the Department of Public Safety (DPS), upon their release into the community. 

 

16.  Under §54-257, G.S., DPS is required to “establish and maintain” a sex offender registry.  Also, “upon receipt of registration information,” DPS must “enter the information into the registry….”

 

17.  Section 54-258(a)(1), G.S., provides that “the registry maintained by [DPS] shall be a public record and shall be accessible to the public during normal business hours,” and further, that “[DPS] shall make registry information available to the public through the Internet.”   In addition, that statute provides that “[e]ach local police department and each state police troop shall keep a record of all registration information transmitted to it by [DPS], and shall make such information accessible to the public during normal business hours.”

 

18.  Notwithstanding the public access provisions of Megan’s law, §54-258(a)(4), G.S., provides that “registration information the dissemination of which has been restricted by court order pursuant to section 54-255, and which is not otherwise subject to disclosure, shall not be a public record and shall be released only for law enforcement purposes until such restriction is removed by the court…” 

 

19.  Section 54-255(a), G.S., provides, in relevant part:

 

Upon the conviction or finding of not guilty by reason of mental disease or defect of any person for a violation of section 53a-70b[1], the court may order [DPS] to restrict the dissemination of the registration information to law enforcement purposes only and to not make such information available for public access, provided the court finds that dissemination of the registration information is not required for public safety and that publication of the registration information would be likely to reveal the identity of the victim within the community where the victim resides.  (Emphasis added).

 

            20.  Section 54-255(b), G.S., provides, in relevant part:

 

Upon the conviction or finding of not guilty by reason of mental disease or defect of any person of a criminal offense against a victim who is a minor, a nonviolent sexual offense or a sexually violent offense, where the victim of such offense was, at the time of the offense under 18 years of age and related to such person…, the court may order [DPS] to restrict the dissemination of the registration information to law enforcement purposes only and to not make such information available for public access, provided the court finds that dissemination of the registration information is not required for public safety and that publication of the registration information would be likely to reveal the identity of the victim within the community where the victim resides.  (Emphasis added).

 

21. Similarly, §54-255(c), G.S., provides that certain categories of offenders required to register with DPS “may petition the court to order [DPS] to restrict the dissemination of the registration information to law enforcement purposes only and to not make such information available for public access,” and that the court may grant such petition if it “finds that dissemination of the registration information is not required for public safety.”  (Emphasis added).

 

22.  It is found that, although the term “registration information” is not defined in §54-250, G.S., the registration provisions of Megan’s Law, §§54-251 through 54-254, G.S., list the information required to be provided by an individual registering with DPS, as follows:  “name, identifying factors, criminal history record and residence address….”[2]    In addition, under certain circumstances, “documentation of any treatment received for mental abnormality or personality disorder,” must also be provided.  §54-252, G.S.

 

23.  “Identifying factors” is defined in §54-250, G.S., as “fingerprints, a photographic image, and a description of any other identifying characteristics as may be required by the Commissioner of [DPS].”

 

24.  The Commission takes administrative notice of the particular information collected by DPS and disseminated to the public via the internet on the DPS Sex Offender Registry website, for each registered sex offender, as follows:

 

a.       name and alias(es)

b.      address

c.       visible scars, marks, tattoos

d.      race

e.       date of birth

f.        hair and eye color

g.       sex

h.       height and weight

i.         a photograph of the registered sex offender

j.        crime(s) requiring registration and description

k.      date convicted

l.         SPBI number

 

25.  Based upon the findings in paragraphs 22 through 24, it is concluded that “registration information,” as that term is used in §§54-255 and 54-258(a)(4), G.S., is limited to the information, listed in paragraph 24, above, collected and published by DPS on its website.

 

26.  At the hearing in this matter, the hearing officer ordered the respondent to provide an unredacted copy of each of the 92 pages of records it deemed responsive to the request in paragraph 2.b, above, for an in camera inspection.  On September 10, 2007, the respondent provided such unredacted records to the Commission, and they are identified herein as IC2007-295-01 through IC2007-295-92.  Such records consist of various court records, containing the court orders restricting dissemination of registration information to law enforcement purposes only, for each of the 39 sex offenders at issue.[3]  

            27.  It is found that, generally, the respondent claims that the following information contained in the in camera records is exempt from disclosure pursuant to §54-255, G.S.: 

 

a.       name, address, date of birth, and date of conviction of sex offender

b.      town where offense occurred, and date of offense

c.       docket number

d.      name and location of court

e.       name of judge

f.        names of clerk, assistant clerk, and deputy clerk

g.       names of prosecuting and defense attorneys

h.       date of plea

i.         date of disposition

j.        date sentenced

k.      name and address of applicant on application to restrict dissemination of registration information, where the applicant is also the registered sex offender

l.         name and address of applicant on application to restrict dissemination of registration information, where the applicant is different from the registered sex offender.

 

28.  It is found that, of the information listed in paragraph 27, above, only the name, address, date of birth, and date of conviction of the sex offender (paragraph 27.a, above), and the name and address of the applicant on the application to restrict dissemination of registration information, where such applicant is also the registered sex offender (paragraph 27.k, above), is “registration information,” within the meaning of §54-255, G.S.  It is further found that §54-255, G.S., exempts such information from mandatory disclosure.  It is therefore concluded that, in withholding such information in pages IC2007-295-01 through IC2007-295-92, from the complainants, the respondent did not violate the FOI Act.

 

29.  The respondent argues that the extensive redaction of the information in the in camera records, specifically, the information described in paragraphs 27.b through 27.j, and 27.l, above, is necessary in order to comply with the “spirit and intent” of §54-255, G.S., because, it argues, such information, if disclosed, could be “pieced together” and thereafter used to request, from the court, records containing the identity of the registered sex offender and/or his or her victim.

 

30.  However, it is found that, §54-255, G.S., on its face, is unambiguous, and that therefore, the Commission may not look beyond the plain language of that statute, but rather, must be guided by §1-2z, G.S., which provides:   

 

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.  If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous, and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

31.  After examining §54-255, G.S., and the related provisions of Megan’s Law, it is clear that “[Megan’s Law] requires DPS to compile the information gathered from registrants and publicize it.  In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices.”  Connecticut Department of Public Safety v. John Doe, 538 U.S. 1, 4 (2003).  In this context then, it is clear that §54-255, G.S., which provides that a court may order DPS “to restrict the dissemination of registration information to law enforcement purposes and to not make such information available for public access” means only that DPS may not, in instances where a court order has been issued, post registration information on its website, nor place it in the registry in certain public offices. 

 

32.  The respondent’s argument, on the other hand, reads into the statute an additional obligation, not found in the plain language of §53-255, G.S.  Specifically, DPS asserts that the statute imposes upon it the obligation not only to directly restrict publication of the registration information, by not posting it on its website or in the public registry, but also, the obligation to prevent indirect disclosure of the identities of those registered sex offenders whose registration information has been ordered restricted.  This argument, made without legal support, is unpersuasive in view of §1-2z, G.S., but also, in light of our Supreme Court’s decision in Maher v. Freedom of Information Commission, 192 Conn. 310 (1984).    

 

33.  In Maher, the Hartford Courant sought detailed information from the Department of Income Maintenance (DIM), about prescription drugs available to public assistance recipients under the Medicaid program.  Specifically, the Courant requested computer tapes that would contain the provider and prescriber number, name and address; date of service, drug description, strength, quantity, and code; and the amount billed to the state.  With respect to the names of the recipients, the Courant conceded that such information was not disclosable under §17-83(b), G.S., and indicated that the individual recipients could be identified by a unique number, rather than by name. 

 

            34.  Section 17-83(b), G.S., provided, in relevant part, that “no person shall…disclose…any list of the names of, or any information concerning persons applying for or receiving assistance under this chapter, directly or indirectly derived from the records, papers, files or communications of the state…or its agencies….” (Emphasis added). 

 

35.  The Commission ordered DIM to disclose the requested information, deleting patient names and substituting therefor, a unique identifying code.  The trial court upheld the Commission’s decision, stating that, although the statute was designed to protect the privacy of the individual patients, such privacy would not be breached if the information were disclosed without the patient names and without any information that could conceivably lead to the identity of such patients.  In reversing the lower court’s decision, the Supreme Court, relying on the “indirectly derived from” language, stated that “the Courant’s proposed inquiry creates a risk of indirect disclosure of the patients’ identities,” which was specifically prohibited by §17-83(b), G.S. 

 

36.  By contrast, §54-255, G.S., contains no such language prohibiting indirect disclosure by DPS of the identities of the registered sex offenders at issue.  In fact, the Commission notes that the respondent offered no evidence from which it could be concluded that the identities of the registered sex offenders at issue are not otherwise known, that the requested records are kept under seal at the court, or are otherwise unavailable for public inspection. 

 

37.  It is also found that the respondent’s broad interpretation of §54-255, G.S., is inconsistent with the policy of our Supreme Court to narrowly construe exceptions to the Freedom of Information Act.  Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188 (1984); Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29 (1980).

 

             38.  Thus, it is concluded that, in redacting the information in the in camera records listed in paragraph 27.b through 27.j, and 27.l, above, i.e., the names of the towns in which the offenses occurred, the dates of the offenses, the docket numbers, the names and locations of the courts, the names of the judges, the names of the clerks, assistant clerks, and deputy clerks, the names of the prosecuting and defense attorneys, the dates of the pleas, the dates of disposition of the cases, the dates sentenced, and the names and addresses of the applicants on the applications to restrict dissemination of registration information where the applicant is different from the registered sex offender, the respondent violated §§1-210(a) and 1-212(a), G.S.  The Commission notes that withholding such information from the complainants effectively would make information that is otherwise public at the court, secret.[4]

 

            39.  The respondent also claims, with respect to page IC2007-295-83, that certain information contained in lines 41 and 42, of such record, is exempt pursuant to §17a-101k, G.S.

 

40.  Section 17a-101k, G.S. provides, in relevant part:

 

The Commission of Children and Families shall maintain a registry of the reports received pursuant to 17a-101a, to 17a-101d, inclusive and 17a-103….The information contained in the reports and any other information relative to child abuse, wherever located, shall be confidential subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations….

 

41.  After careful review of the in camera record, it is found that the information in lines 41 and 42 of page IC2007-295-83, is not a report or information relative to child abuse within the meaning of §17a-101k, G.S.  It is therefore concluded that the redacted information in lines 41 and 42 is not exempt from disclosure, and that the respondent violated §1-210(a) and 1-212(a), G.S. in withholding such information from the complainants.

 

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

1.  Forthwith, the respondent shall provide the complainant with a copy of the in camera records responsive to the request in paragraph 2.b, of the findings above, and described in paragraph 26 of the findings, above.  In complying with such order, the respondent may redact only the names, addresses, dates of birth, and dates of conviction of the registered sex offenders, and the names and addresses of applicants on applications to restrict dissemination of registration information, only where such applicant is also the registered sex offender.

 

2.  Henceforth, the respondent shall comply with the disclosure and promptness requirements of §§1-210(a) and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 2007.

 

 

________________________________

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:

 

Heather Nann Collins,

Alexander Wood, and the

Manchester Journal Inquirer

306 Progress Drive

PO Box 510

Manchester, CT 06045-0510

           

Legal Affairs Unit, State of Connecticut,

Department of Public Safety

c/o Lynn D. Wittenbrink, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-295FD/paj/11/19/2007