FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 14, 2009, at which time the complainant and the respondents 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.).

 

            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 December 5, 2008, and filed with the Commission on December 8, 2008, the complainant alleged that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by failing to provide information he requested in his November 5, 2008 letter described in paragraph 3, below.  The complainant requested the imposition of civil penalties against the respondents.

 

            3.  It is found that, by letter dated November 5, 2008, the complainant requested that the respondents provide him with copies of “records and other paperwork and correspondence, concerning [his] placement into Administrative Detention on 7-21-08 at MacDougall C.I., and all subsequent classification recommendations and correspondence, up to the date of this request” (hereinafter “the requested records”).

 

            4.  It is found that, by letter dated November 12, 2008, the respondents acknowledged receipt of the complainant’s request.  The respondents also informed the complainant that his request was being reviewed and “forwarded to the correct unit for a response.”  The respondents further informed the complainant that “[s]omeone from that unit [would] be in contact with [him] in the near future.”

 

5.  It is found that, by letter dated December 1, 2008, the complainant renewed his November 5, 2008 request to the respondents for the requested records.  The complainant also specified that his renewed request includes all of the requested records “up to the date of this newest request.”

 

6.  It is found that, by letter dated December 4, 2008, the respondents acknowledged the complainant’s December 1, 2008 renewed request for the requested records.  The respondents informed the complainant that his request was “forwarded to the attention of the MacDougall Correctional Institution Freedom of Information liaison for a response.”  The respondents also informed the complainant that any future “correspondence with regards to this matter are to be addressed to the attention of Correctional Counselor Baker at MacDougall Correctional Institution.”

 

7.  It is found that, by letter dated January 5, 2009, the complainant renewed his previous requests described in paragraphs 3 and 5, above, by sending a request to Correctional Counselor Baker at MacDougall Correctional Institution.  The complainant stated that he had not received the requested records.  The complainant clarified his request by specifying that he was requesting copies of the following records “up to the date of this request:”

 

a.       “[A]ll copies of forms, notes, and classification forms and other related paperwork concerning [the complainant] that concerns [his] being placed into Administrative Detention on 7/21/08 from O Pod, 21 cell;”

b.      “All the paperwork that led to [the complainant] being placed in detention, and all subsequent classification paperwork and forms which led to [his] being RR classified to High Security Status and being transferred from MacDougall to Corrigan on 8/4/08;” and

c.       “[A]ny and all paperwork or forms that are in any files concerning [the complainant] that relate to this investigation and reclassification, that are being withheld from being disclosed from the D.O.C. to [the complainant].”

 

8.  It is found that, by letter dated February 1, 2009, Correctional Counselor Baker (hereinafter “Counselor”) acknowledged the complainant’s January 5, 2009 renewed request for the requested records.  The Counselor informed the complainant that “a copy of the incident report that was conducted by [the correctional institution’s] Intelligence Office” was available and being forwarded to the FOI liaison at Corrigan.  The Counselor advised the complainant on how to obtain the report from the FOI liaison at Corrigan.  The Counselor also advised the complainant that “any information that outlines [their] facility measurements, architectural designs, graphs and photos have been redacted from [the] incident report due to safety and security reasons.”  The Counselor further advised the complainant that “redaction[s] may include any confidential witness statements that may pose a threat to that inmate or the facility.”  In addition, the Counselor indicated that she saw no log entry on the complainant’s classification screen signifying the complainant’s high security classification.  The Counselor suggested that the complainant contact the Classification Counselor Supervisor at his facility or the FOI Coordinator since any information regarding his classification status is maintained in the complainant’s inmate masterfile.

 

9.  It is found that, by letters dated May 21, 2009 and June 19, 2009, the complainant acknowledged receipt of redacted copies of some of the requested records from the respondents.  The complainant indicated, however, that “some enclosures…were missing that need to be provided at the hearing.”  The complainant specifically requested an in camera review by the Commission of the following withheld or redacted records:

 

a.       “The anonymous note claiming an escape plot with [the complainant’s] name on it;”

b.      “The Complete incident report of 7-21-08 by Capt Beaudry, pages 1, 2, and 3… page 2 was never supplied…page 3 was heavily redacted;” and

c.        “The investigation report of 9-8-08 by Captain Denise Walker, unredacted,” including Section B, which was blank, entitled ‘Part B.’”

 

10.  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.

 

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

 

[e]xcept 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 the provisions of section 1-212.

 

12.  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 . . . .”

 

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

 

14.  At the hearing on this matter and in his previous requests, the complainant contended that the requested records do not pose a security or safety risk and that he was not requesting any records that are security related from the respondents.  The complainant, again, requested copies of the anonymous note alleging that he was plotting an escape from the MacDougall Correctional Institution and all missing and redacted documents described in paragraph 9, above.  The complainant also reiterated his request for an in camera inspection by the Commission of the requested records.

 

15.  With respect to the portion of the requested records that contain the anonymous note described in paragraph 9a., above, the respondents claim that the disclosure of the handwritten anonymous note could create a safety risk under §1-210(b)(18), G.S., since the handwriting can be used to identify the person who wrote the note.  The respondents also claimed that the content of the actual note could also reveal how the anonymous person ascertained the information, thus exposing the anonymous person and creating a safety risk.

 

16.  The respondents claimed that other portions of the requested records that were either withheld or redacted pose a safety risk as they contain specific details pertaining to the complainant’s alleged plot to escape with another inmate.  The respondents also claimed that they withheld from the complainant specific information pertaining to any confidential informants or other inmates that were involved in the investigations.  The respondents specified that in responding to the complainant’s request, they did not withhold or redact information about the complainant since he is entitled to his personal information pursuant to the Personal Data Act.  However, the respondents claimed that the omission of the missing page 2 from the incident report described in paragraph 9a., above, was inadvertent and a result of an unintentional error while copying the requested records for the complainant.  The respondents agreed to send a copy of page 2 to the complainant subject to any necessary safety risk redactions under §1-210(b)(18), G.S.  In addition, the respondents stated that the unreadacted version of “Part B” of the investigation report described in paragraph 9c., above, is identical to the copy received by the complainant, which is blank and contains no information.

 

17.  At the hearing on this matter, the Commission ordered the respondents to submit the requested records, consisting of an incident report and security division investigation report, both pertaining to an alleged planned escape involving the complainant, for in camera inspection.  Such records consist of 97 pages, which have been marked for identification purposes as IC# 2008-770-1 through IC# 2008-770-97.

 

18.  On the index to records submitted for in camera inspection, the respondents maintained their claim that portions of the requested records are exempt from disclosure pursuant to §1-210(b)(18), G.S.

 

19.  Section 1-210(b)(18), G.S., exempts from mandatory disclosure:

Records, the disclosure of which the Commissioner of Correction…has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction….Such records shall include, but are not limited to:

(A)  Security manuals, including emergency plans contained or referred to in such security manuals;

(B)  Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

(C)  Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(D)  Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(E)  Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

(F)  Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(G)  Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H)  Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers;

20.  It is found that in camera records IC# 2008-770-1 through IC#2008-770-97 are comprised of the incident report and security division investigation report, which includes, among other investigatory records: the anonymous note described in paragraph 9a., above, letters, memorandums, inmate records, an alleged escape plan, drawings, photographs, medical reports and interview reports.  It is also found that such in camera records include information still sought by the complainant as described in paragraph 9, above.

 

21.  It is found that a comparison of the records already provided to the complainant with the in camera records reveal that most of the in camera records have already been provided to the complainant with redactions, except for IC# 2008-770-2, which is page two of the incident report described in paragraphs 9b. and 16, above.

 

22.  It is found that the pages that contain redactions and which have not been provided to the complainant in their entirety are pages: IC# 2008-770-1 through 10, 12, 14, 15-20, 24, 27-33, 35, 57-73, 91-92, and 94-95.

 

23.  It is found that IC# 2008-770-1 through 10, 12, 14, 15-20, 24, 27-33, 35, 57-73, 91-92, and 94-95 contain various investigatory records concerning an alleged escape plan involving the complainant.  It is therefore found that the withheld and redacted portions of IC# 2008-770-1 through 10, 12, 14, 15-20, 24, 27-33, 35, 57-73, 91-92, and 94-95 constitute “records, the disclosure of which the Commissioner of Correction … has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction,” within the meaning of §1-210(b)(18), G.S.

 

24.  It is concluded that the redactions described in paragraph 22, above, are permissible pursuant §1-210(b)(18), G.S., and therefore, the respondents did not violate the FOI Act when they failed to provide the complainant with such redacted portions of the requested records.

 

25.  It is further concluded that the respondents did not violate the FOI Act by providing the complainant with redacted copies of the requested records.

 

            26.  It is found, however, that the respondents failed to promptly comply with the complainant’s requests described in paragraphs 3, and 5, above.

 

27.  Consequently, it is concluded that the respondents violated the promptness requirements of §§1-210(a), and 1-212(a), G.S., in this matter.

 

28.  In light of the conclusions reached in paragraphs 25 and 27, above, the Commission declines to consider the imposition of civil penalties against the respondents.

 

 

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

 

1.  Henceforth, the respondents shall comply with the 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 October 14, 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:

 

Thomas Hoyesen #13029

Cheshire C I

900 Highland Avenue

Cheshire, CT 06410

 

Joan Ellis, Administrator,

State of Connecticut, Department of Correction;

Freedom of Information Office; and State of Connecticut,

Department of Correction

C/o Nicole Anker, Esq.

State of Connecticut

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-770FD/sw/10/15/2009