FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 21, 2010, 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.  It is found that, by letter dated June 9, 2009, the complainant submitted a request for the following records and sought to have the respondents answer the following question:

 

a.       any/all body diagrams of all injuries, x-rays and exact photographs take of Christopher Petrozza with regard to M.E. Case Number: 07-07765;  and

b.      I also request your answer to who exactly it was who told you or any medical examiner that I “told police that he [sic]  had accidently struck the deceased with a Bobcat style skid loader and that he [sic] buried the body in the rear yard of 55 Lake Street after realizing he [sic] had killed him. “

 

3.  By letter dated June 30, 2009 and filed July 2, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by not complying with his request for records.

 

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:

 

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, . . . or  (3) receive a copy of such records in accordance with section 1-212.

 

6.  Section 1-212(a)(1), 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.

 

7.  It is found that the respondents maintain the documents described in paragraph 2.a, above, and it is therefore concluded that such records are “public records” within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S., and that access to such records must be granted in accordance with §§1-210(a) and 1-212(a), G.S., unless the records are exempt from disclosure. 

 

8.  It is found that, by letter dated November 17, 2009, the respondents acknowledged the complainant’s request, and forwarded him a Pro Se Request for OCME[1] Records, requesting that the complainant complete the form and return it to them. 

 

9.  It is found that, under cover of letter dated November 23, 2009, the complainant returned the completed form referred to in paragraph 8, above, to the respondents. 

 

10. With regard to the request set forth in paragraph 2.a., the respondents testified that, upon receiving the request, they gathered all of the responsive records and, thereafter, contacted the Department of Correction (“DOC”) with regard to releasing these records to the complainant.

 

11. It is found that, after consultation with the DOC, the respondents sent the complainant most of the records, which they refer to as the “core case reports” at no charge; informed the complainant that additional records were available to him for a fee; provided the complainant with an invoice for the additional records; and withheld other records as exempt from disclosure.  It is found that the only records that the respondents withheld were the autopsy photographs contained in the medical examiner’s case file.

 

12. It is found that the “core case reports,” referred to in paragraph 11, above, consist of the following records:  1) the telephone notice of death; 2) report of the investigation; 3) the identification form; 4) the receipt of evidence; 5) the report of autopsy; and 6) the identification worksheets. 

 

13. It is found that the respondents sent the complainant, free of charge, the core case records numbered 1 through 4, and provided the complainant with an invoice for the core case records numbered 5 and 6. 

 

            14. The complainant testified that he had no objection to submitting a fee to the respondents to obtain the additional records; however, he took issue with whether the respondents could withhold the autopsy photographs from him.  In addition, the complainant testified that, while the respondents claimed to have sent him some of the records and the invoice for additional records, he had yet to receive any records in response to his request. 

 

            15. It is found that, at the time the complainant made his request for records, he was an inmate assigned to MacDougall-Walker Correctional Institution (“MacDougall-Walker”).  It is found that the respondents forwarded the core case reports and the invoice, referred to in paragraphs 11 through 13, above, to MacDougall-Walker.  It is further found that, at the time the respondents forwarded these records to the complainant, he had been transferred to Corrigan Correctional Institution.  At the hearing, the respondents agreed to re-send these records to the complainant at his new correctional facility. 

 

            16. The respondents contend that autopsy photographs are exempt from disclosure pursuant to §§1-210(b)(18), G.S., and 19a-411, G.S. 

 

17. Section 1-210(b)(18)(A), G.S., permits, in relevant part, the nondisclosure 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 institutional or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities.

 

18. It is found that the respondents did not present any evidence at the hearing to  substantiate a claim that disclosure of the autopsy photographs in this case may result in a safety risk.  In addition, no one from the DOC appeared at the hearing to testify or submitted any written evidence on the issue of the potential safety risk posed by the disclosure of these photographs.

 

19. It is found that the respondents failed to prove that the Commissioner of Correction has reasonable grounds to believe that the disclosure of the autopsy photographs may result in a safety risk, including the risk of harm to any person or the risk of an escape from or disorder in, a correctional institution or facility under the supervision of the DOC, within the meaning of §1-210(b)(18), G.S.

 

 20. It is therefore concluded that the autopsy photographs are not exempt from mandatory disclosure pursuant to §1-210(b)(18), G.S.

 

21. The respondents next contend that the autopsy photographs are exempt from disclosure pursuant to §19a-411, G.S., which section provides, in relevant part, that:

 

(a) The Office of the Chief Medical Examiner shall keep full and complete records properly indexed, giving the name, if known, of every person whose death is investigated, the place where the body was found, the date, cause and manner of death and containing all other relevant information concerning the death and a copy of the death certificate. The full report and detailed findings of the autopsy and toxicological and other scientific investigation, if any, shall be a part of the record in each case. The office shall promptly notify the state's attorney having jurisdiction of such death and deliver to the state's attorney copies of all pertinent records relating to every death in which further investigation may be advisable. Any state's attorney, chief of police or other law enforcement official may, upon request, secure copies of such records or other information deemed necessary by such official for the performance of his or her official duties.

(b) The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the commission. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the [Commission on Medicolegal Investigations], except that no person with a legitimate interest in the records shall be denied access to such records, and no person may be denied access to records concerning a person in the custody of the state at the time of death….. (Emphasis supplied). 

 

22.  It is concluded that the autopsy photographs in this case constitute records of the Chief Medical Examiner, within the meaning of §19a-411, G.S.

23.  In Galvin v. Freedom of Information Commission, 201 Conn. 448 (1986), the Supreme Court determined that §19a-411, G.S., is a state statute that falls within the “except as otherwise provided” provision of §1-210(a), G.S.  See Galvin, 201 Conn at 462. 

 

24. It is found that the autopsy photographs were taken by the respondents’ investigator.  It is further found that these photographs depict the deceased in the place where he was discovered and are graphic in nature. 

 

25. It is the respondents’ position that, in accordance with §19a-411, G.S., these photographs can only be disclosed to police officers, the state’s attorney office, pro se litigants, or counsel of record for criminal defendants. 

 

26. The complainant testified that his underlying criminal conviction is currently being appealed.  The complainant further testified that he is being assisted in his appeal by a public defender.  The complainant also testified that, if it becomes necessary, he plans to challenge his conviction collaterally, by way of a habeas corpus petition.

27. It is the respondents’ position that the disclosure of the autopsy photographs is conditional, and must be in compliance with the Regulations of Connecticut State Agencies. 

 

28.  Specifically, Regulations of Connecticut State Agencies, §§19a-401-12(c)(4) and  (f), provide, respectively, and, in relevant part, as follows:

 

(c) Inquiries and requests for copies of records. Inquiries concerning a death may be made in person or by letter to the Chief Medical Examiner, Office of the Medical Examiner, 11 Shuttle Rd., Farmington, Connecticut 06032. Copies of reports prepared by personnel of the Office of the Medical Examiner, Assistant Medical Examiners and designated pathologists and other laboratories where pertinent, or detailed findings of other scientific investigations, are furnished upon payment of fees and upon conditions established by the Commission on Medicolegal Investigations. Copies of such reports may be obtained as follows:

. . . .

 

(4) If the requester of the records is a pro se litigant seeking access to medical records, he or she may obtain access to such records if the records are legitimately sought for pending litigation and no court has issued an order prohibiting disclosure pursuant to section 19a-411(c) of the Connecticut General Statutes. Such person should address a letter to the chief medical examiner stating the case name, docket number, court where the litigation is pending, and why the requester believes these records reasonably relate to his or her case.

 

. . . .

 

(f) Upon receipt of request from defense counsel of record in a criminal case for copies of reports in said case, the Chief Medical Examiner shall promptly notify the Office of the State's Attorney which has jurisdiction of such request and shall release said records to the defense attorney after the expiration of 10 working days from the date of receipt of such request, without charge therefor, unless the Chief Medical Examiner is notified within said period of time that an application limiting disclosure has been made by the State's Attorney pursuant to provisions of Section 19a-411 of the Connecticut General Statutes and that an order limiting disclosure has been issued by a judge for the judicial district in which the state's attorney has jurisdiction.

 

29. Based on the testimony set forth in paragraph 26, above, the complainant is not a “pro se” litigant pursuing a “pending litigation,” within the meaning of Regulations of Connecticut State Agencies, §19a-401-12(c)(4).

 

30.  It is further found that, pursuant to Regulations of Connecticut State Agencies, §19a-401-12(f), the Commission on Medicolegal Investigations has developed a procedure by which counsel of record in a criminal case may obtain access to records, such as the autopsy photographs at issue in this case.

 

31.  It is further found that there is no evidence in the record to support a finding that the complainant’s counsel of record has requested access to the autopsy photographs at issue in this case. 

 

32.  It is concluded that, in light of the finding that the complainant is not a pro se litigant pursuing a pending litigation, and in light of the fact that the record does not support a finding that the complainant’s counsel of record has submitted a request for access to the autopsy photographs in this case, the complainant has not otherwise complied with the conditions imposed by §19a-411(b), G.S., and implemented by way of the Regulations of Connecticut State Agencies, §§19a-410-12(c)(4) and (f). 

 

33.  Accordingly, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant.  

 

34.  With respect to paragraph 2.b, above, it is found that the complainant is seeking an answer to a question regarding individuals who allegedly provided the respondents with certain information.

35.  It is concluded that the respondents did not violate §§1-210(a) or 1-212(a), G.S., by failing to provide the complainant with an answer to his question, since nothing in the FOI Act requires public agencies to answer questions.

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 May 26, 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:

 

Chad St. Louis, #160429

Corrigan-Radgowski Correctional Institution

986 Norwich-New London Turnpike

Uncasville, CT 06382

 

Chief Medical Examiner, State of

Connecticut, Office of the Chief

Medical Examiner; and State of

Connecticut, Office of the Chief

Medical Examiner

c/o Patrick B. Kwanashie, Esq.

Assistant Attorney General

55 Elm Street

Hartford, CT 06106

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-389FD/paj/5/28/2010