FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on February 4, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

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 dated August 12, 2008, the complainant made a request to the respondents for copies of the following records: “all material relating to myself and my niece, Mary Ann Anderson; that to within [sic] the last five years” (the “requested records”).   

 

3.      It is found that, by letter dated August 13, 2008, the respondents acknowledged the complainant’s request for records, but stated that pursuant to §46a-11c, G.S., they were not permitted to provide the complainant with copies of the requested records. 

 

4.      By letter dated and filed September 4, 2008, the complainant appealed to the Commission, alleging that the respondents’ failure to produce the requested records violated the Freedom of Information Act. 

 

5.      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.

 

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

 

7.      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.”

 

8.      It is found that to the extent the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

9.      Section 46a-11c, G.S., provides  in relevant part as follows:

 

(a) The director [of the Office of Protection and Advocacy for Persons with Disabilities], upon receiving a report that a person with mental retardation allegedly is being or has been abused or neglected, shall make an initial determination whether such person has mental retardation, shall determine if the report warrants investigation and shall cause, in cases that so warrant, a prompt, thorough evaluation to be made to determine whether the person has mental retardation and has been abused or neglected. For the purposes of sections 46a-11a to 46a-11g, inclusive, the determination of mental retardation may be made by means of a review of records and shall not require the director to conduct a full psychological examination of the person. Any delay in making such determination of mental retardation shall not delay the investigation of abuse or neglect or recommendation of provision of protective services. The evaluation shall include a visit to the named person with mental retardation and consultation with those individuals having knowledge of the facts of the particular case. All state, local and private agencies shall have a duty to cooperate with any investigation conducted by the Office of Protection and Advocacy for Persons with Disabilities under this section, including the release of complete client records for review, inspection and copying, except where the person with mental retardation refuses to permit his or her record to be released. The director shall have subpoena powers to compel any information related to such investigation. All client records shall be kept confidential by said office. Upon completion of the evaluation of each case, written findings shall be prepared which shall include a determination of whether abuse or neglect has occurred and recommendations as to whether protective services are needed. The director, except in cases where the parent or guardian is the alleged perpetrator of abuse or is residing with the alleged perpetrator, shall notify the parents or guardian, if any, of the person with mental retardation if a report of abuse or neglect is made which the director determines warrants investigation. The director shall provide the parents or guardians who the director determines are entitled to such information with further information upon request. The person filing the report of abuse or neglect shall be notified of the findings upon request (emphasis supplied).

 

. . . .

 

(d) Neither the original report nor the evaluation report of the investigator which includes findings and recommendations shall be deemed a public record for purposes of section 1-210. The name of the person making the original report shall not be disclosed to any person unless the person making the original report consents to such disclosure or unless a judicial proceeding results therefrom (emphasis supplied). 

 

10.   The respondents testified that the requested records that they maintain in this case contain records that are relevant to an individual who may or may not have a mental disability.  The respondents further testified that the records in this file could be broken down into the following three categories:  1) records concerning two investigations into allegations of abuse; 2) probate court records; and 3) records concerning any discussed or recommended protected services plans.

 

11.   As to the first category of records described in paragraph 10, above, the respondents testified that the records in this category were created when the respondent agency conducted its first investigation on June 29, 2007 and its second investigation on November 20, 2007, after receiving separate reports that a person with a mental disability was allegedly being abused or neglected.  The respondents testified that, pursuant to §46a-11c(a), G.S., the investigations included conducting evaluations and making recommendations about the allegations of abuse and/or neglect.  The respondents testified that this first category of records included investigation intake documents, such as the investigator’s notes and communications with outside agencies and witnesses, his original reports, and final findings and recommendations.   

 

12.   It is found that the records comprising the first category of records identified in paragraph 10, above, and further described in paragraph 11, above, constitute either the original reports or the evaluation reports of the investigator.  See Michael J. Fadus v. James D. McGaughey, Director, Office of Protection and Advocacy for Persons with Disabilities, et al., Docket #FIC 2000-297 (Sept. 13, 2002) (holding that “§46a-11(c), G.S., does not limit the contents of an evaluation report to the findings and recommendations of an investigator nor does it require every document to be the original creation of the investigator”). 

 

13.   It is further found that all of the records comprising the first category of records identified in paragraph 10, above, and further described in paragraph 11, above, are ultimately incorporated into the respondents’ case or “client file.”  It is therefore concluded that these records are “confidential” records, exempt from disclosure pursuant to §46a-11(c), G.S.

 

14.   As to the second category of records described in paragraph 10, above, the respondents testified that these records are probate court documents, including records from a guardianship hearing involving the complainant and a relative.  There was no evidence that the probate court ever determined that these records should be disclosed. 

 

15.   At the hearing, the respondents contended that the probate court records identified in paragraph 10, above, and further described in paragraph 14, above, are confidential records, exempt from disclosure regardless of where they are located, pursuant to §46a-670, G.S.

 

16.   Section 45a-670, G.S., provides in relevant part as follows:

 

An application for guardianship may be filed by the court on its own motion or by any adult person. The application and all records of Probate Court proceedings held as a result of the filing of such application, except for the name of any guardian of the respondent, shall be sealed and shall be made available only to the respondent or the respondent's counsel or guardian, and to the Commissioner of Mental Retardation or the commissioner's designee, unless the Probate Court, after hearing held with notice to the respondent or the respondent's counsel or guardian, and to the commissioner or the commissioner's designee, determines that such application and records should be disclosed for cause shown.

17.   Based on the statutory language cited in paragraph 16, above, it is concluded that the second category of records identified in paragraph 10, above, and further described in paragraph 14, above, are confidential records, exempt from disclosure pursuant to §45a-670, G.S.

18.   As to the third category of records described in paragraph 10, the respondents testified that, pursuant to their statutory mandate, when an allegation of abuse or neglect is substantiated, the respondents are directed to forward their findings to the Department of Development Services (the “DDS”) for the initiation of protective services.  The respondents further testified that, in response to their request for protective services in such cases, the DDS will develop a protective services plan, which is forwarded back to the respondents.  The respondents further testified that, many times, the DDS’ protective services plan will contain the findings and recommendations made by the respondents in their initial investigation.  The respondents testified that, in this case, the DDS’ protective services plan did incorporate the respondents’ findings and recommendations from the initial investigations, referenced in paragraph 11, above. As such, the respondents testified that the DDS’ protective services plan is “an outgrowth of the confidential investigation itself.” 

19.   It is found that all of the records comprising the third category of records identified in paragraph 10, above, and further described in paragraph 18, above, are ultimately incorporated into the respondents’ case or “client file.”  It is therefore concluded that these records are “confidential” records, exempt from disclosure pursuant to §46a-11(c), G.S.

20.   It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the requested records identified in paragraph 2, above.

 

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. 

 

           

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 27, 2009.

 

____________________________

S. Wilson

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:

 

Margaret E. Anderson

570 Buckingham Street

Oakville, CT 06779

 

Executive Director, State of Connecticut,
Office of Protection and Advocacy for Persons

with Disabilities; and State of Connecticut,
 Office of Protection and Advocacy for

Person with Disabilities

C/o Philip Miller, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-561FD/sw/5/29/2009