FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

By letter of complaint, received and filed by the Commission on June 8, 2009, the complainants appealed to the Commission, alleging that the respondents violated the FOI Act by failing to respond to their requests for information.  On August 10, 2009, the respondents Commissioner of the Department of Children and Families, and the Department of Children and Families (together the “DCF respondents”), moved to dismiss the matter without a hearing, pursuant to §1-206(b)(4), G.S.   The complainants filed a written objection to such motion, which was received and filed by the Commission on August 18, 2009.

           

1.  The DCF respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  Specifically, in their complaint, as it relates to the DCF respondents, the complainants allege that the DCF respondents failed to comply with their request for:  “disclosure of such information on us (Kimberly Albright L., Anthony Lazzari, Justin Farina, Hailee Lazzari, and Amanda Lazzari) as may be maintained in your files…all records, reports, information, documents, files, including medical, police, school, counseling, (false), substantiation’s, etc. and all calls made to the CT DCF hotline pertaining to our FOIA request.”

 

3.  Section 1-206(b)(4), G.S., provides, in relevant part, that:

 

“[n]otwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that (A) the agency has not violated the Freedom of Information Act….”

 

4.  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.”

 

5.   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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.” 

 

6.   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….” 

           

7.  Section 17a-101k, G.S., provides, in relevant part, that the “information contained in the registry 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 the federal law or regulations.”

 

8.  Section 17a-28(b), G.S., provides, in relevant part, that “[n]otwithstanding the provisions of [the FOI Act], records maintained by [DCF] shall be confidential and shall not be disclosed.  Such records of any person may only be disclosed, in whole or in part, to any individual…with the consent of the person or as provided in this section.”    

 

9.  “Person” is defined in §17a-28(a)(1), G.S., as “(A) any individual named in a record, maintained by [DCF], who (i) is presently or at any prior time was a ward of or committed to the commissioner for any reason; (ii) otherwise received services, voluntarily or involuntarily, from [DCF]; (iii) is presently or was at any prior time the subject of an investigation by [DCF]; (B) the parent of a person, as defined in subparagraph (A) of this subdivision, if such person is a minor; or (C) the authorized representative of a person; as defined in subparagraph (A) of this subdivision, if such person is deceased[.]”

 

10.  Section 17a-28(m), G.S. provides, in relevant part:

 

“[i]n addition to the right of access provided in section 1-210, any person…shall have the right of access to any records made, maintained or kept on file by [DCF]…when those records pertain to or contain information or materials concerning the person seeking access thereto….”

 

11.  The complainants, in their written opposition to the respondents’ motion to dismiss, argue that, based on the language in §17a-28(m), G.S., the confidentiality provision contained in §17a-28(b), G.S., does not apply to them, because the records they seek “concern” or “pertain” to them.  They argue such confidentiality provision applies only to “third parties.”  Complainants’ Brief at 4. 

 

12. The DCF respondents, citing many prior commission and court decisions, which have previously addressed precisely this issue, claim that the Commission lacks jurisdiction over this matter, as it relates to the allegations against them, and, accordingly, move to dismiss.

 

13.  In Marlowe v. State of Connecticut, Freedom of Information Commission, Superior Court, J.D. New Britain, Docket No. CV 99 0493141 (October 12, 1999, McWeeny, J.), the court ruled that the FOI Commission lacks jurisdiction to determine the rights of access to DCF records pertaining to child protection activities.  See also Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150, 165-166 (2007).  The court also noted, that not all DCF records are exempt from FOIA, citing Department of Children and Families v. Freedom of Information Commission, 48 Conn. App. 467 (1998).  “Clearly, DCF records which do not pertain to child protection activities are subject to disclosure under FOIA.  It is in this substantive context in which §17a-28(m) should be construed.”  Marlowe, supra, at 6. 

 

14.  Thus, after examining the complaint and pleadings in this matter and construing all allegations most favorably to the complainant, it is found that the DCF respondents have not violated the FOI Act, because the requested records, as described in the complaint, pertain to the DCF respondents’ child protection activities.  

 

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

 

1.  The action of the DCF respondents is confirmed and the complaint as against the DCF respondents only is dismissed without a hearing pursuant to §1-206(b)(4)(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:

 

Kimberly Albright-Lazzari and

Anthony Lazzari  

132 Rock Creek Road

New Haven, CT 06515

 

Commissioner, State of Connecticut,

Department of Children and Families,

Waterbury Division; and State of Connecticut,

Department of Children and Families

C/o Stephen Vitelli, Esq.

Office of the Attorney General

110 Sherman Street

MacKenzie Hall

Hartford, CT 06105

 

Superintendent of Schools, Cheshire

Public Schools; and Board of Education,

Cheshire Public Schools

C/o Jason R. Stanevich, Esq.

Berchem, Moses & Devlin, P.C.

75 Broad Street

Milford, CT 06460

 

Superintendent of Schools, Waterbury Public

Schools; and Board of Education, Waterbury

Public Schools

C/o Kevin J. Daly, Jr., Esq.

26 Kendrick Avenue, 8^th Floor

Waterbury, CT 06702

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-338FD/sw/10/15/2009