FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on January 7, 2010, 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, 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 July 27, 2009, the complainant made a request to the respondents for “documentary evidence of the following:

 

[a]  all of the criteria used to assess the applicant’s eligibility for an international transfer under CGS §18-91a and 18 USC §§4100 – 4115.

 

[b]  any deciding factors and/or additional information different from those used for assessment in 2002.

 

[c] any other documents relevant to the applicant’s consideration for an international transfer.”

                                         

3.  By letter of complaint dated August 10, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the request described in paragraph 2, above.

 

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 . . . (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.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

            8.  It is found that, by letter dated July 29, 2009, Joan Ellis, the Freedom of Information Office Administrator for the respondent Department of Correction, acknowledged the request, described in paragraph 2, above, and forwarded such request to the respondent Director of Offender Classification & Population Management.  It is further found that, by letters dated September 22, 2009, October 4, 2009 and January 4, 2010, the respondents provided records responsive to the request, described in paragraph 2, above, to the complainant.  However, it is also found that the respondents redacted certain portions of such records, and withheld certain other records “for safety concerns”. 

 

            9.  At the hearing in this matter, the complainant contended that the redactions, and the withholding of the records, described in paragraph 8, above, are impermissible.  However, the complainant stated, at the outset of such hearing, that he was not seeking any individuals’ names or contact information.

 

10.  At the hearing in this matter, the respondents offered the records, described in paragraph 8, above, for an in camera inspection.  The respondents provided such in camera records to the hearing officer, but upon review, the hearing officer rejected such records because certain portions of two of the in camera records were redacted.  The respondents resubmitted the in camera records, with one record still containing redactions.  With such submission, however, the respondents also submitted a letter from counsel, which has been marked as after-filed Respondents’ Exhibit I.  Respondents’ Exhibit I explains that the in camera record containing the redactions is a record received by the respondents from the Department of Children and Families (DCF) in redacted form, and that the respondents do not maintain an unredacted version of such record.  Such in camera records were accepted by the hearing officer.  It is found that the in camera records total 8 pages, consisting of victim impact statements, a photograph, and social workers’ reports.  Such records shall be identified herein as IC 2009-465-001 through IC 2009-465-008.

 

11.  The respondents claim that the in camera records, described in paragraph 10, above, are exempt from disclosure pursuant to §§1-210(b)(18), and 17-28, G.S.

 

12.  Section 1-210(b)(18), G.S., provides, in relevant part, that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of:

 

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.

 

13.  It is found that IC 2009-465-001 (lines 25-41), IC 2009-465-002, IC 2009-465-005 and IC 2009-465-006 are victim impact statements.  The respondents testified  that disclosure of such records may constitute a risk of harm to the people who wrote the statements because, in general, an inmate might get upset with, and seek revenge on, those individuals who have influenced the respondents’ decision to deny them a transfer. 

 

14.  It is found that the complainant, a British citizen, has been incarcerated in Connecticut since 1999, after killing the woman he had hired to care for his children, and with whom he was having an intimate relationship, after he discovered that this same woman was also carrying on an intimate relationship with another man.  It is found that the complainant was convicted of murder and was sentenced in 2001 to 25 years in prison, without eligibility for parole.  It is found that the complainant is not scheduled to be released until 2024. 

 

15.  It is found that the respondents did not offer any evidence that the complainant engaged in violent or criminal behavior prior to the incident in 1999 that resulted in his incarceration.  It is further found that the respondents did not offer any evidence that the complainant has engaged in violent or aggressive behavior during the 11 years he has been incarcerated, which might give them reasonable grounds to believe that he may harm or seek revenge upon the authors of the statements, described in paragraph 13, above, 14 years from now, when he is released from prison.

 

16.  To the contrary, the respondents submitted evidence at the hearing, in the form of work supervisor’s reports, demonstrating, and it is found that, the complainant has an “excellent” attitude toward correction officers, other inmates, and regulations.  It is also found that such reports conclude that the complainant’s attendance at his job as an electronic technician is excellent; that he is “self-motivated” and “co-operative”; an “excellent worker, dependable and thorough,” and that his engineering knowledge has helped others with complex problems.  

 

17.  It is found that Stephen Clapp, a counselor supervisor in the Offender Classification & Population Management unit, made the decision to withhold the records from the complainant.  It is found that his decision was not reviewed by any other person employed at the Department of Correction.  It is found that Mr. Clapp’s decision to withhold the records described in paragraph 13, above, was not based on any specific  knowledge of the complainant or his behavior during his incarceration, but rather, was based upon his general knowledge and beliefs about how inmates may react, in certain situations.    

 

18.  It is found, based upon the foregoing, that the respondents failed to prove that the Commissioner of Correction has reasonable grounds to believe that disclosure of the in camera records, described in paragraph 13, above, may result in a safety risk in this case, pursuant to §1-210(b)(18), G.S.

 

19.  It is concluded, therefore, that the respondents violated the FOI Act in failing to disclose the records described in paragraph 13, above.

 

20.  It is found that IC 2009-465-004 is a photograph of the woman who was murdered by the complainant.  Mr. Clapp testified at the hearing in this matter that disclosure of such record is a safety and security risk, pursuant to §1-210(b)(18), G.S., because of “inmates’ fixation on their victims.”  He also testified that an inmate can use such a photograph to harass a victim’s family and to brag to other inmates.  Mr. Clapp also testified that there is a safety concern for the inmate as well, because another inmate might see the photograph and disagree with the crime that was committed, and attempt to seek revenge on the inmate.

 

21.  It is found that the respondents did not offer any evidence that the complainant in this matter may have a tendency to fixate on his victim, nor did the respondents offer any evidence demonstrating how such fixation may constitute a security risk.  It is found that the respondents did not offer any evidence that the complainant in this matter may have a tendency to harass the victim’s family in this case, or to brag to other inmates.  It is found that the respondents offered only speculation, regarding the possible reaction that inmates generally might have if they were to see the photograph.  It is found that such speculation about inmates’ behavior generally, is not specific to the complainant, nor is it evidence of a safety risk, in this case.

 

22.  It is found, based upon the foregoing, that the respondents failed to prove that the Commissioner of Correction has reasonable grounds to believe that disclosure of the in camera record, described in paragraph 20, above, may result in a safety risk, pursuant to §1-210(b)(18), G.S.

 

23.  It is concluded, therefore, that the respondents violated the FOI Act in failing to disclose the record, described in paragraph 20, above.

 

24.  It is found that IC 2009-465-005 is a fax cover sheet.  The respondents testified that such record is exempt from disclosure in its entirety because it contains the names of victims and certain contact information for such individuals, and that disclosure of such information would constitute a safety risk, pursuant to §1-210(b)(18), G.S. 

 

25.  It is found that the respondents offered no evidence as to why disclosure of the entire fax cover sheet may result in a safety risk, nor did the respondents offer any evidence that the complainant in this case may be likely or inclined to use the information contained in such record to harass or harm the victims, which may thus result in a safety risk to such individuals. 

 

26.  It is found, based upon the foregoing, that the respondents failed to prove that the Commissioner of Correction has reasonable grounds to believe that disclosure of the in camera record, described in paragraph 24, above, may result in a safety risk, pursuant to §1-210(b)(18), G.S.

 

27.  However, as noted in paragraph 9, above, the complainant stated that he was not seeking the names or contact information of any individual in any of the in camera records. 

 

28.  Based upon the foregoing, it is found that the respondents violated the FOI Act in failing to disclose the record, described in paragraph 24, above.

 

29.  It is found that IC 2009-465-007 and IC 2009-465-008 are records of an investigation conducted by DCF.  The respondents claim such records are exempt from disclosure pursuant to §l7-28, G.S.

 

30.  Section l7-28(b), G.S., provides, in relevant part, that “[n]notwithstanding the provisions of [the FOI Act], records maintained by [DCF] shall be confidential and shall not be disclosed.” 

 

31.  Section 17a-101k, G.S., provides, in relevant part, that the Commissioner of DCF shall maintain a registry of his or her findings of abuse or neglect of children… and 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.”

 

32.  Based upon the foregoing, it is found that the records, described in paragraph 29, above, are exempt from disclosure pursuant to §§17a-28(b) and 17a-101k, G.S.  It is also found that the respondents’ claim that such records are also exempt from disclosure pursuant to §1-210(b)(18), G.S., need not be addressed.

 

33.  It is therefore concluded that the respondents did not violate the FOI Act in withholding the records, described in paragraph 29, above, from the complainant.

 

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

 

1.  The respondents shall, forthwith, provide the complainant with a copy of the in camera records described in paragraphs 13 and 24, of the findings above, free of charge.

 

2.  In complying with paragraph 1 of the order, above, the respondents may redact all individual victims’ names and contact information from each such in camera record. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 23, 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:

 

David Taylor, #272912

Osborn Correctional Institution

335 Bilton Road

PO Box 100

Somers, CT 06071

 

Director, State of Connecticut,

Department of Correction; Offender

Classification & Population Management;

and State of Connecticut,

Department of Correction

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-465FD/paj/6/30/2010