FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 20, 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.). 

 

Council 4 AFSCME, and Maria Cruz, a subject of the requested records at issue in this matter, appeared at the hearing and were granted intervener status.

 

At the request of the respondents, and with no objection from the complainant, the complainant will hereinafter be identified as Martin V., and the case caption has been amended accordingly.

 

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, in July, 2007, the Connecticut Appeals Court affirmed the convictions of the complainant for the sexual assault of his minor children, and for risk of injury to minors.  State v. Martin V., 102 Conn. App. 381 (2007).  

 

            3. It is found that, on June 8, 2008, the complainant made a request for voluminous records from the Connecticut Department of Children and Families (hereinafter “DCF”), including the personnel files of two DCF social workers, Ms. Cruz and Ms. Dela Cruz.  Such personnel files (hereinafter “the requested records”) are the records at issue in this matter.   

 

4.      Section 1-210(c), G.S., provides in relevant part:

Whenever a public agency receives a request from any person confined in a correctional institution…for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction…in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility….

            5.  It is found that DCF acknowledged the request described in paragraph 3, above, on June 20, 2008.   It is also found that DCF notified the Commissioner of Correction of the request, within the meaning of §1-210(c), G. S.

 

            6.  It is found that, on December 18, 2008, the respondents informed the complainant that they had intercepted the requested records, which had been delivered to the complainant’s correctional institution, because such records, if released would jeopardize the safety of staff and could be distributed among the inmate population.

 

            7. It is found that, on December 25, 2008, the complainant internally appealed the respondent’s interception of the requested records.

 

            8. It is found that, by letter dated December 29, 2008, the respondents informed the complainant that, pursuant to the respondents’ administrative directive 10.7, the requested records were contraband. 

 

            9. By letter dated January 24, 2009, and filed on January 27, 2009, the complainant alleged that the respondents violated the Freedom of Information (“FOI”) Act by seizing the requested records which had been forwarded to him by the Department of Children and Families pursuant to a request for records he had made to such department.

 

            10. The respondents first move to dismiss this matter, contending that the Commission lacks jurisdiction to review the interception and seizure of contraband from a correctional facility.

 

            11. In Docket #FIC2008-704; Jeffrey M. Pierce v. Kenneth Butricks, Administrative Captain, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction (September 23, 2009), the Commission concluded that it did not have the authority to order the return of a book which had been confiscated from an inmate by DOC personnel, under the FOI Act.  However, the circumstances in this matter differ markedly from those in Docket #FIC2008-704.  In this case, the complainant made a request for public records from a state agency.  When the state agency attempted to provide the complainant with those records, the respondents seized the records prior to the complainant’s receipt of them.  Under the facts and circumstances of this case, the Commission denies the respondents’ motion to dismiss on the grounds set forth in paragraph 10, above.

 

            12. The respondents next move to dismiss the complaint on the grounds that they no longer have custody of the requested records.  However, it is clear from the record that the respondents did at one time maintain the records, but that the respondents returned such records to DCF, when they seized them in December 2008.  Because the Commission concludes that a public agency may not avoid its obligations under the FOI Act by disposing of records in its custody, such motion to dismiss is hereby denied.

 

13.  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. 

 

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

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. 

 

            15. 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.”

 

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

 

           17. At the hearing on this matter, the respondents contended that the Commissioner of Correction has reasonable grounds to believe that disclosure may result in a risk of harm, including a risk of disorder in a correctional institution, and thus that the requested records are exempt under §1-210(b)

 

18.  Section 1-210(b)(18), G.S., provides that disclosure is not required of:

Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, 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 or Whiting Forensic Division facilities. 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 . . . .

 

            19. The social workers described in paragraph 3, above, Ms. Cruz and Ms. Dela Cruz, each testified at the hearing in this matter.  It is found that Ms. Cruz, in her capacity as a DCF social worker was professionally involved with the complainant in connection with confidential proceedings in juvenile court.  It is found that Ms. Dela Cruz, testified in the complainant’s criminal trial. 

 

            20.  It is found that both Ms. Cruz and Ms. Dela Cruz, as professional social workers for DCF, are required to work, unarmed, and unaccompanied in unsafe neighborhoods, with at times dangerous individuals.  It is found that as DCF employees, social workers dealing with sometimes volatile situations are trained to not disclose any personal information about themselves to DCF clients. 

 

            21. It is found that both Ms. Cruz and Ms. Dela Cruz are fearful for their safety and the safety of their families should the complainant receive any portion of their personnel files. 

 

            22. It is found that the complainant has associates in the community outside of the correctional facility and that, should the complainant receive the requested records, he would be free to impart any information in such records to such outside associates.

 

            23. Based on the specific facts and circumstances of this case, it is found that the Commissioner of Correction has reasonable grounds to believe that disclosure of the social workers’ personnel records to the complainant may result in a risk of harm to persons, and thus that the requested records are exempt under §1-210(b)(18), G.S. 

 

            24. It is therefore concluded that the respondent did not violate §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the requested records to the complainant, in this case.

 

 

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 January 13, 2010.

 

 

___________________________

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:

 

Martin V.

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT 06080

 

Administrator, State of Connecticut,

Department of Correction, Freedom

of Information Office; and State of 

Connecticut, Department

of Correction

c/o Terrence M. O’Neill, Esq.

Assistant Attorney General and

Steven R. Strom, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

Council 4 AFSCME and Maria Cruz

c/o Neal A. Cunningham, Staff Representative and

Maria C. Alfonso, Service Representative

444 East Main Street

New Britain, CT 06051

 

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-053FD/paj/1/15/2010