FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 15, 2010, and August 17, 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.).  For purposes of hearing, this matter was consolidated with Docket #FIC 2010-046, Jose Calderon v. Freedom of Information Liaison, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction. 

 

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 December 28, 2009, the complainant made a seven-part request to the respondents for copies of various records, all related to an incident that occurred in the food hall at Carl Robinson CI, on or about March 19, 2009, including any video recordings of the incident, any records related to his security risk group designation and to his transfer to Northern CI.

 

3.  It is found that, by letter dated January 6, 2010, the respondents, addressing each part of the request individually, informed the complainant that:  the requested records are exempt from disclosure, he had previously been provided with the records he requested, or there were no records responsive to his request.

 

4.  By letter of complaint dated January 14, 2010, and filed on January 25, 2010, 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.

 

5.  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.

 

6.  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.

 

7.  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.”

 

8.  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. 

 

9.  It is found that, by letter dated May 14, 2010, the respondents provided the complainant with copies of several records responsive to the request described in paragraph 2, above.

 

10.  At the June 15 hearing in this matter, the complainant stated that he had a copy of a disciplinary report (#2009-04-063), which references three other incident reports (#2009-03-239, #2009-03-270, and #2009-03-277), and that he is seeking copies of these three incident reports.  It is found that only one of these three incident reports, #2009-03-239, is responsive to the request, described in paragraph 2, above.

 

11.  At the June 15 hearing in this matter, the respondents stated that they withheld incident report #2009-03-239 from the complainant, based on §1-210(b)(18), G.S., and that they would provide a copy of such report to the Commission for in camera inspection.  The respondents also stated that, although incident reports #2009-03-270 and #2009-03-277 are not responsive to the request, described in paragraph 2, above, they would provide such reports to the Commission for in camera inspection as well. 

 

12.  At the June 15 hearing in this matter, the respondents objected to the complainant’s attempt to offer disciplinary report #2009-04-063 into evidence, on the ground it was not relevant to the matter at issue and also because a copy of such report was not provided by the complainant to the respondents prior to the hearing, in accordance with the Notice of Hearing and Order to Show Cause.[1]  The hearing officer continued the hearing to August 17 to provide the complainant with an opportunity to provide the report to the respondents.

 

13.  At the August 17 hearing in this matter, the complainant stated that he had not provided incident report #2009-04-063 to the respondents in advance of the hearing and that he no longer wished to offer such document as an exhibit in this matter.  The respondents brought the in camera records, described in paragraph 11, above, to the hearing and offered testimony to support their §1-210(b)(18), G.S., claim of exemption.

 

14.  It is found that the in camera records consist of four incident reports #2009-03-239, #2009-04-315, #2009-03-270, and #2009-03-277, and total 100 pages.  Such pages shall be designated herein as IC 2010-047-001 through IC 2010-047-100.

 

15.  With regard to their §1-210(b)(18), G.S., claim of exemption, that section 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….

 

16.  A witness for the respondents testified, and it is found, that the complainant has been known to have been involved with gang activity for a number of years within the prison system.   It is found that incidents involving gang members are different from non-gang related incidents, because incidents that  involve gang members are not limited to just the two rival gang members who may have been in a fight.  Rather, it is found that such incidents involve entire gangs.  Further, the witness testified, and it is found, that gangs have “an enormous impact on facilities,” and through extortion and violence, control all aspects of an inmate’s life, including the food, haircuts, and laundry.  It is found that all of the in camera records, described in paragraph 14, above, describe gang activity within the correctional facility where the incident described in the  reports took place, or, describe gang intelligence information, unknown to the inmate population.  It is also found that, redaction of portions of the reports, such as names of witnesses, would not eliminate the safety and security risks involved, because the gang members are able to determine, based upon the written description of the incident, which inmates provided information to prison officials, even if the names of such inmates are redacted.   In addition, it is found, that in the prison system, having a copy of an incident report or “having papers” on someone who is viewed as a “snitch,” is considered to be a valuable commodity, which may then be used in the cycle of extortion and violence.

 

            17.  After careful review of IC 2010-047-001 through IC 2010-047-100, and based upon the evidence produced at the hearing in this matter, it is found that the Commissioner of Correction has reasonable grounds to believe that disclosure of IC 2010-047-001 through IC 2010-047-100, described in paragraph 14, above, may result in a safety risk, within the meaning of §1-210(b)(18), G.S.

 

18.  It is therefore concluded that the respondents did not violate the FOI Act when they withheld the incident reports, described in paragraphs 10 and 14, above. 

 

19.  It is found that, with regard to the remainder of the records responsive to the request, described in paragraph 2, above, the complainant either was provided with copies of such records, and indicated at the hearing that he was satisfied with such response, or no such records exist.

 

20.  It is therefore concluded that with regard to the remainder of the records responsive to the request, described in paragraph 2, above, the respondents did not violate the FOI Act as alleged in the complaint.

 

 

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 November 17, 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:

 

Jose Calderon #144872

Bridgeport Correctional Center

1106 North Avenue

Bridgeport, CT  06604

 

Warden, State of Connecticut,

Department of Correction, Carl Robinson Correctional Institution; and

State of Connecticut, Department of Correction

c/o Nancy Kase O’Brasky, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-047/FD/cac/11/22/2010