FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 8, 2011, at which time the complainant and 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.). 

 

The hearing officer submitted her report to the full Freedom of Information Commission, which report was reviewed at the Commission’s August 10, 2011 regular meeting.  The Commission unanimously voted to re-open and remand the case to the hearing officer for the purpose of taking evidence in the form of records submitted for in camera review. 

 

On August 17, 2011, the respondents submitted such records to the Commission for in camera review, and such records are identified herein as IC-2010-670-1 and IC-2010-670-2.  The respondents also filed a motion for permission to submit a written affidavit of Todd Sokolowski, who testified at the hearing on July 8, 2011.  Pursuant to §1-21j-38, Regulations of Connecticut State Agencies, the hearing officer granted the respondents’ motion on August 25, 2011, and has marked the affidavit as Exhibit 2, after-filed, for the respondents.

 

            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 on October 15, 2010, the complainant requested copies of records of “my witness statements made on my behalf representing exculpatory evidence of my innocence of the charges…at my [disciplinary review] hearing on [October 7, 2010].”  It is found that the complainant named the two witnesses, who are both inmates.

 

3.      By letter of complaint filed October 25, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the copies of records he requested, described in paragraph 2, above.

 

4.      It is found that the respondents denied the complainant’s request on October 18, 2010, based on a claim that §1-210(b)(18), G.S., exempted the records from mandatory disclosure.  The complainant claims that he never received the respondents’ letter.

 

5.      Section 1-200(5), G.S., defines “public records” as follows:

 

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, …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:

 

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.

 

7.      Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public records.”

 

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

 

9.        DOC claims that such records are exempt from disclosure pursuant to §1-210(b)(18), G.S., which provides:

 

Nothing 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…[.]

 

10.   The complainant testified that he inspected the records described in paragraph 2, above, during his disciplinary hearing.  The complainant also testified that the witness statements were exculpatory.  

 

11.   The records provided to the Commission for in camera review, identified as IC-2010-670-1 and IC-2010-670-2, are copies of the records described in paragraph 2, above.

 

12.   The respondents’ witness testified that disclosure of the witness statements to inmates may create a safety risk because it could lead to retaliation against witnesses for what was or was not said in the statement.  The witness also testified that a safety risk may result from disclosure because other inmates may gain access to the records if they are in an inmate’s cell.  Finally, the witness testified that it was his practice never to disclose any witness statements to inmates, whether or not the statements were inculpatory or exculpatory, because he did not want to establish a precedent for disclosure of witness statements.

 

13.   It is concluded that §1-210(b)(18), G.S., does not provide a blanket exemption for all witness statements, and that it is the agency’s burden to prove the applicability of an exemption to disclosure on a case by case basis.  Wilson v. Freedom of Information Commission, 181 Conn. 324, 339-341(1980).

 

14.   With respect to the records requested in this matter, upon review of IC-2010-670-1 and IC-2010-670-2 and the respondents’ after-filed exhibit, it is found that disclosure of the records at issue may result in a safety risk.

 

15.   It is concluded, therefore, that §1-210(b)(18), G.S., permits the respondents to withhold such records from the complainant.

 

16.   It is concluded that the respondents did not violate the FOI Act by withholding from disclosure to the complainant the records described in paragraph 2, above.

 

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 September 14, 2011.

 

__________________________

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:

 

Robin Elliot #24941

Northern Correctional Institution

287 Bilton Road

P.O. Box 665

Somers, CT  06071

 

Deputy Warden, State of Connecticut, Department of Correction,

Northern Correctional Institution; and State of Connecticut,

Department of Correction

c/o James E. Neil, Esq.

State of Connecticut,

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-670/FD/cac/9/14/2011