FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 13 and August 20, 2010, at which times 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.  By letter of complaint dated December 16, 2009 and filed December 22, 2009, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by improperly withholding records he requested, and which were sent to him, from the City of Bridgeport Police Department. 

 

3.  It is found that, by letter dated November 11, 2009, the complainant made a request to the City of Bridgeport Police Department (“BPD”) for all records pertaining to John Pettway’s release from the custody of BPD, all records pertaining to Pettway’s release on bond “in regards to his arrest on September 25, 2000”, and for records pertaining to Pettway’s transfers to the Department of Correction (“DOC”) or to any out of state correctional institutions (the “November 11 letter”).

 

4.  It is found that, on December 11, 2009, the complainant received written notification from the DOC that mail sent to him by BPD had been rejected by Officer Lizotte and returned to BPD.

 

            5.  At the hearings in this matter, the respondents claimed that the record received from BPD, addressed to the complainant, referenced in paragraph 4, above, was reviewed and withheld from the complainant for “safety and security reasons.”

 

            6.  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 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

7.  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 §1-212.

 

8.  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.”

 

9.  Section 1-210(c), G.S., provides:

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, 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 or Whiting Forensic Division facility.

10.  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….               

 

11.  It is found that the records described in paragraph 3, above, are public records within the meaning of §1-200(5), G.S., and therefore must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.  

 

12.  At the close of the July 13 hearing in this matter, counsel for the respondents moved to dismiss the complaint, arguing that the matter was moot, because, as of July 13, “there are no records to give” to the complainant.  The motion was denied by the hearing officer, and the hearing was continued to August 20 for the purpose of taking additional evidence.

 

13.  It is found that, sometime between the July 13 and August 20 hearings, the respondents obtained a copy of a daily log sheet from BPD and provided the complainant with a redacted version of such record.  It is found that the respondents did not redact information contained in the daily log sheet pertaining to John Pettway’s release on bond with respect to his arrest on September 25, 2000, or Pettway’s home address or date of birth.  It is found that the information that is redacted on the daily log sheet pertains to other individuals who were arrested on the same day as Pettway, including these individuals’ home addresses, and dates of birth, as well as an inventory of armory items located at the booking division of BPD such as handcuffs, cell keys, chains, leg irons, etc.  It is further found that the daily log does not contain any social security numbers.

 

14.  It is found that the daily log sheet is the sole record responsive to the complainant’s request, described in paragraph 3, above, and that the redacted version satisfies that request.  It is further found that the daily log sheet is the record that BPD provided to the complainant in response to his November 11 letter, and which was reviewed and rejected by the DOC as a “safety and security risk.”

 

15.  It is found that the reason given by the respondents for withholding the record responsive to the request described in paragraph 3, above, from the complainant, i.e. that disclosure of such record, or portions thereof, may constitute a “safety and security risk,” is not credible, in view of the fact that (1)  the respondents provided such record to the complainant with information they claimed constituted a safety and security risk unredacted;  and (2) the conflicting evidence presented at the hearing concerning what record actually was received from BPD, and who, on behalf of the DOC,  reviewed and rejected such record, on or about December 11, 2009. 

 

            16.  It is therefore concluded that the requested record, described in paragraphs 13 and 14, above, was impermissibly withheld, and that it therefore was not provided to the complainant promptly, within the meaning of §§1-210(a) and 1-212(a), G.S.

 

17.   As to the respondents’ claims of exemption, it is concluded that those claims are now moot, as the respondents ultimately provided the requested record, or portions thereof, to the complainant.

 

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

 

           1.  Henceforth, the respondents shall strictly comply with the promptness requirements of §1-210(a) and 1-212(a), G.S.  

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2010.

 

 

 

__________________________

Cynthia A. Cannata

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:

 

Ian Wright #286236

Garner Correctional Institution

50 Nunnawauk Road

Newtown, CT  06470

 

Warden, State of Connecticut, Department of Correction, Cheshire Correctional Institution; and State of Connecticut, Department of Correction

c/o Steven R. Strom, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-774/FD/cac/10/15/2010