FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 11 and October 19, 2007, at which times the complainant and 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.). 

For purposes of hearing, the above captioned complaint was consolidated with Docket #FIC 2007-069 David P. Taylor v. Warden, State of Connecticut, Department of Correction, Cheshire Correctional Institution; and Captain, State of Connecticut, Department of Correction, Cheshire Correctional Institution.

 

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 December 18, 2006, the complainant made a request to the respondent for:

 

a.       photographs taken on December 15, 2005 and January 11, 2006 for the disciplinary hearing of January 12, 2006 at Cheshire C.I.; and

 

b.      the written explanation of why the complainant was not allowed to call witnesses at the hearing of January 12, 2006.

 

3.      It is found that by letter dated December 28, 2006, the respondent acknowledged the complainant’s request and informed him that it was under review.

 

4.      It is found that by letter dated January 1, 2007 and filed on January 5, 2007, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with his request.

 

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

 

“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.

 

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

 

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 . . . receive a copy of such records in accordance with section 1-212. 

 

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

 

8.      It is found that the requested records, to the extent such records exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

9.      It is found that a search was conducted for the records described in paragraph 2, above, which consisted of retrieving the incident report log and the incident report that corresponded to the date provided by the complainant.  It is found that all the records found as a result of the aforementioned search were provided to the complainant, which included four photographs that were provided to the complainant by letter dated January 19, 2007.

 

10.   However, at the hearing on this matter, the complainant explained that he was seeking a copy of a specific photograph that was shown to him by correctional officer Hogan during the January 12, 2007 disciplinary hearing, which was not provided to him.  Furthermore, the complainant claimed that he was not provided with the written explanation of why he was not allowed to call witnesses at the hearing of January 12, 2006, which explanation, the complainant claimed, is required to be in writing pursuant to the respondent’s Administrative Directive 9.5.  The complainant also claimed that the incident report provided to him indicated that a photograph depicting a certain machine was “attached” and that he did not receive that attachment. 

 

11.   With respect to the photograph shown to the complainant by Officer Hogan, it is found that pursuant to department policy and practice, all documents and photographs relevant to an incident in the prison, and used at a hearing, are placed and maintained in the file with all materials related to the incident. 

 

12.   It is found that the respondent was not aware, until the hearing in this matter, that the complainant was seeking a specific photograph and is not aware of any photographs other than those already provided to the complainant. 

 

13.   It is found, therefore, that the respondent’s search was reasonably limited to that described in paragraph 9, above.

 

14.   With respect to the written explanation the complainant claimed is required by the respondent’s Administrative Directive 9.5, it is found that said directive was issued on January 30, 2002 and was superceded by the respondent’s Administrative Directive 9.5 issued on March 5, 2003, which no longer requires a written explanation for denying an inmate’s request to present witnesses at a disciplinary hearing.

 

15.   It is found therefore that the written explanation the complainant seeks was not drafted and does not exist.

 

16.   With respect to the photograph depicting a certain machine that was attached to the incident report, it is found that page one of the “Disciplinary Report” dated December 15, 2005, states the following: “Physical evidence: Photo attached, price list for replacement part.”

 

17.   It is found that the complainant expected that an actual photograph would be attached depicting the damaged machine that was at issue at the January 12, 2006, disciplinary hearing and that he expected the respondent to provide it pursuant to his December 18, 2006 request.

 

18.   It is found, however, that the “photo” is actually a photocopy from a page in a catalog, depicting a replacement part and the prices for such part varying by size.  It is found that the complainant received a copy of the aforementioned page and that there is no other photograph in this regard.

 

19.   Based on the foregoing, it is concluded that the respondent did not violate the FOI Act as alleged by the complainant.

 

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.      Notwithstanding the conclusion in paragraph 19 of the findings, above, the Commission requests that respondent undertake another search specifically for the photograph described in paragraph 10, of the findings, above, and provide the complainant with a copy of such photograph, if located, or otherwise inform the complainant in writing of the results of such search.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

David P. Taylor, #272912

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

           

Warden, State of Connecticut,

Department of Correction,

Cheshire 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/2007-014FD/paj/12/19/2007