FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 19, 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)(A), G.S.

 

2.  It is found that, by application dated February 10, 2009, the complainant made a request to the respondents for copies of all records, including records of criteria and assessment, concerning the classification of offenders who have a sexual treatment score of a three, and were approved within the previous five years by the Director of Offender Classification and Population Management for release to a half way house or transitional supervision (the records of assessment being hereinafter the “requested records” or sometimes the “records”).

 

3.  It is found that, by letter dated February 13, 2009, the respondent Department acknowledged the complainant’s request for records. By an additional letter dated February 27, 2009, the respondent Department declined to provide the requested records “due to safety and security concerns.” In the same letter, the respondent Department did inform the complainant that “four offenders match your criteria listed in your request.”     

 

4.  By letter dated March 5, 2009 and filed with the Commission on March 13, 2009, the complainant appealed to the Commission, alleging that the respondents failed to provide the records described at paragraph 2, and thereby violated the Freedom of Information Act.

 

5.  Section 1-200(5), G.S., states:

 

“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.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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 (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. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

7.  Section 1-210(b), G.S., states in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

….

 

(18) 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…. (emphasis added).

 

8.  It is found that, following the filing of the complaint, the parties had additional correspondence, including the complainant’s request dated March 20, 2009 and the respondent Department’s response dated April 16, 2009.

 

9.  It is found that the complainant’s March 20, 2009 letter included a new records request, for the police report and the presentence investigation report related to his current offense. While not the subject of the complaint in this matter, following discussion at the hearing, the respondent Department forwarded these records to the complainant by cover letter dated June 19, 2009.

 

10.  It is found that the respondent Department’s letter dated April 16, 2009 included a redacted copy of a single requested record, showing a table with the name and facility of each inmate, together with the number of their sex offense treatment needs score. All names and scores were redacted.

 

11.  The Commission takes administrative notice of the following memoranda of decisions of the Superior Court, the following final decisions of the Commission, and the records in such matters: 

 

Commissioner, Department of Correction, Harry Soucy, Steven Petracca, Local 387 Council 4 v. Freedom of Information Commission and David Taylor, Docket # CV-074015438, Superior Court, Judicial District of New Britain (Memorandum of Decision Nov. 3, 2008) (Cohn, J.);

 

Theresa Lantz, Commissioner, Department of Correction v. Freedom of Information Commission and David P. Taylor, Docket # CV-084016766, Superior Court, Judicial District of New Britain (Memorandum of Decision Nov. 3, 2008) (Cohn, J.);

 

State of Connecticut, Department of Correction v. Freedom of Information Commission and Richard Quint, Docket # CV-064012025, Superior Court, Judicial District of New Britain (Memorandum of Decision July 3, 2007) (Levine, J.);

 

Docket #FIC2006-502; David P. Taylor v. Commissioner, State of Connecticut, Department of Correction (Sept. 12, 2007); 

 

Docket #FIC 2007-069; David P. Taylor v. Warden, State of Connecticut, Department of Correction, Cheshire Correctional Institution; and Captain, State of Connecticut, Department of Correction, Cheshire Correctional Institution (Jan. 23, 2008);

 

Docket #FIC 2008-029; David Taylor v. Personnel Department, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction (Dec. 10, 2008).   

 

Docket #FIC 2008-471; David Taylor v. Director, State of Connecticut, Department of Correction, Human Resources Unit; and State of Connecticut, Department of Correction (Jun. 10, 2008).   

 

12.  It is found that the requested records contain medical records, including records concerning mental health and addiction. The records include information concerning sponsors of inmates, who could be targeted for retaliatory assaults. In some instances, the requested records detail gang affiliation, which information could also be the cause of assaults on inmates or persons who are not incarcerated.

 

13.  It is found that the sex offense treatment needs score is assigned based on an evaluation of historic information against general criteria.  It is not subject to change, unlike the overall classification for security which can be adjusted based upon disciplinary behavior. The general criteria used to assign the sex offense treatment needs score are available in all libraries at correctional facilities, where inmates may inspect them. The complainant could have inspected these criteria at the MacDougall-Walker Correctional Institution, where he was incarcerated, at any time. Additionally, by letter dated June 8, 2009, the respondents provided five pages of criteria from the Department of Correction Objective Classification Manual related to community release approval.     

 

14.  It is found, based on the testimony of Stephen Clapp, the Counselor Supervisor in the Offender Classification and Population Management Unit, that inmates have been assaulted by other inmates based upon the nature of the crime for which inmates have been convicted. Particularly inmates convicted of sexual assault of children have been targeted for assault by other inmates. As a result of such assaults, inmates have been placed in protective custody. Because the requested records concern sexual crimes of specific inmates, it is found that the requested records are entirely different in content than records of the disciplinary history of correctional officers.  

 

15.  It is concluded that the records described at paragraph 2 are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

16.  Based on the factual findings and testimony set forth and described at paragraphs 12, 13, and 14, it is also concluded that the respondents had “reasonable grounds to believe” that disclosure of  the requested records would result in a “safety risk, including the risk of harm” to inmates and perhaps others. Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 545 (1989). Based on the factual findings and testimony set forth and described at paragraphs 12, 13, and 14, it is also concluded that the respondents had “reasonable grounds to believe” that disclosure of the requested records would result in the risk of a disorder in a correctional institution.

 

17.  Based upon the facts and circumstances of this case, it is concluded that the requested records are exempt from mandatory disclosure pursuant to §1-210(b)(18), 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 hereby dismissed.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 24, 2010.

 

 

____________________________

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:

 

Troy Artis, #154149

Corrigan-Radgowski C C

986 Norwich New London Tpke.

Uncasville, CT 06382

 

Deputy Commissioner,

State of Connecticut,

Department of Correction; and

State of Connecticut,

Department of Correction

C/o Nancy B. Canney, Esq.

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-136FD/sw/2/25/2010