FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 15, 2009, at which time the complainant and the respondents appeared, 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.).

 

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.  It is found that, by application dated August 25, 2008, the complainant made a request to the respondents for copies of two sets of documents: a) all documents “related to reason(s) why [t]he [a]pplicant was transferred out of McDougall-Walker C. I. and admitted to the Garner Correctional Inst.”; and b) all documents “related to reason(s) why a separation status was logged upon the applicant and Norman Gaines, and other(s), amongst inmates and correctional official(s)” (the “requested records”). 

 

3.      By letter dated August 29, 2008, a representative of the respondents acknowledged the complainant’s request.

 

4.      It is found that, by letter dated September 12, 2008, Stephen Clapp from the Office of Offender Classification and Population Management declined to provide the requested records, stating that “a file is not created for all transfers” and that records concerning transfers as well as separations are security records exempt from mandatory disclosure.

 

5.      It is found that, by letter of complaint dated September 22, 2008, and filed September 25, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by not complying with his request for records. 

 

6.  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.

 

7.  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.

 

8.  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.

 

9.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are “public records”, pursuant to §1-200(5), G.S. 

10.  At the April 15, 2009 hearing, the complainant requested and was granted the right to file three late filed exhibits (which constituted two inmate request forms and an Inmate Administrative Remedy Form). The respondents claimed, for all requested records that may exist, the exemption at §1-210(b)(18), G.S., focusing on subsection (G), which concerns “information on the movement or assignment of inmates or staff….” Finally, the respondents were ordered to submit for in camera inspection all requested records described at paragraph 2.b), above.

 

11.  By letter dated April 21, 2009, counsel for the respondents informed the hearing officer that: a) a search had been done for the requested records described at paragraph 2.b), above, which included counsel’s discussion with Chaplain Calabrese concerning the separate religious services that Mr. Vega and Mr. Gaines did attend for a period of time; b) “Population Management never imposed a separation profile for Mr. Vega with respect to Mr. Gaines”; and therefore, c) the respondents did not maintain any records as described at paragraph 2.b) to submit for an in camera inspection.

 

12.  It is found that the complainant had some evidence that understandably led him to question whether the respondents might maintain some requested records of transfer or separation status.

 

13.  However, based upon the sworn testimony of Steven Clapp (the supervisor of all correctional counselors for the respondent Department) at the hearing, it is found that the respondents did not create or maintain any records within the scope of the request set forth at paragraph 2.a), above.

 

14.  Based upon the sworn testimony of Mr. Clapp at the hearing, as supplemented by counsel’s April 21, 2009 letter, it is found that the respondents did not create or maintain any records within the scope of the request set forth at paragraph 2.b), above.

 

15.  In that the respondents did not maintain the requested records, the respondents’ claim of exemption based upon §1-210(b)(18), G.S., need not be adjudicated.      

 

16.  Accordingly, it is concluded that the respondents did not violate §§1-210(a) and 1-212(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 9, 2009.

 

 

____________________________

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:

 

Joe Burgos Vega, #130135

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT 06470

 

Director, State of Connecticut,

Department of Correction, Offender

Classification and Population Management;

and State of Connecticut,

Department of Correction

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2008-630FD/paj/9/11/2009