TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s regular meeting of March 9, 2011
A regular meeting of the Freedom of Information Commission was held on March 9, 2011, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:07 p.m. with the following Commissioners present:
Commissioner Norma E. Riess, presiding
Commissioner Sherman D. London
Commissioner Owen P. Eagan
Commissioner Amy J. LiVolsi
Commissioner Robert F. Kappes
Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, Tracie C. Brown, Lisa F. Siegel, Valicia D. Harmon, Cindy Cannata and Thomas A. Hennick.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of February 23, 2011.
Docket #FIC 2010-221 James A. Harnage v. Warden, State of Connecticut, Department of Correction, Garner Correctional Institution; and State of Connecticut, Department of Correction
James A. Harnage participated via speakerphone. Attorney Nancy Kase O’Brasky appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Minutes, Regular Meeting, March 9, 2011
Page 2
Docket #FIC 2010-343 James Harnage v. CC Perreault, FOI Liaison, State of Connecticut, Department of Correction, Garner Correctional Institution; CS Stowell, CC Bent, State of Connecticut, Department of Correction, Garner Correctional Institution; CC Daly, State of Connecticut, Department of Correction, Corrigan-Radgowski Correctional Institution; State of Connecticut, Department of Correction; Ms. Acosta, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care, Garner Correctional Institution; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
James A. Harnage participated via speakerphone. Attorney Nancy Kase O’Brasky appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Docket #FIC 2010-226 Victor Velasco v. David Machernis, Medical Records Specialist 1, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care, Northern Correctional Institution; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
Victro Velasco participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-233 Troy Mozell v. Stephanie Redding, Chief, Police Department, City of New Haven; and Police Department, City of New Haven
Troy Mozell participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-205 Gayle M. Hooker and the Connecticut Education Association v. Superintendent of Schools, New London Public Schools; and Board of Education, New London Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, March 9, 2011
Page 3
Docket #FIC 2010-218 Apostle Immigrant Services and St. Rose of Lima Church v. Leonard Gallo, Chief, Police Department, Town of East Haven; and Police Department, Town of East Haven
Tafari Lumumba and Mary Ellen Burns appeared on behalf of the complainants.Attorney Patricia Cofrancesco appeared on behalf of the respondent police department and the respondent town. Attorney Jonathan Einhorn appeared on behalf of the respondent police chief. The Commissioners unanimously voted to correct and amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as corrected and amended.* The proceedings were recorded digitally.
Docket #FIC 2010-242 Mike Sikoski v. Town Clerk, Town of Mansfield
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-249 Christopher P. Hankins and the Connecticut Education Association v. Superintendent of Schools, Thomaston Public Schools; and Thomaston Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-289 Robert Frahm and The Connecticut Mirror v. State of Connecticut, Connecticut State University System
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-301 Laura Langello v. Board of Education, West Haven Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-512 Darlene Jones v. Board of Finance, Town of Westbrook; and Board of Selectmen, Town of Westbrook
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, March 9, 2011
Page 4
The Commissioners unanimously voted to grant a Motion to Stay dated February 23, 2011 filed by Martin A. Gould, Esq., in #FIC 2010-132, Jim Moore and the Waterbury Republican American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education until such time as the Superior Court rules on a motion to stay should the matter be appealed.
The Commissioners unanimously voted to grant a Motion for Stay of Implementation and Enforcement of Administrative Order Pending Appeal and Memorandum of Law in Support of Motion for Stay dated February 23, 2011 filed by Jane D. Comerford, in #FIC 2010-132, Jim Moore and the Waterbury Republican American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education until such time as the Superior Court rules on a motion to stay should the matter be appealed.
The Commissioners unanimously voted to deny an appeal of an agency decision not to grant priority assignment to Docket #FIC 2010-699, Michael Nowacki v. State of Connecticut, Judicial Branch, Family Commission.
Victor R. Perpetua reported on pending appeals.
Colleen M. Murphy reported on legislation.
The meeting was adjourned at 3:18 p.m.
_________________
Thomas A. Hennick
*SEE ATTACHED FOR CORRECTIONS and AMENDMENTS
MINREGmeeting 03092011/tah/03102011
Minutes, Regular Meeting, March 9, 2011
Page 5
CORRECTIONS and AMENDMENTS
Docket #FIC 2010-221 James A. Harnage v. Warden, State of Connecticut, Department of Correction, Garner Correctional Institution; and State of Connecticut, Department of Correction
The Hearing Officer’s Report is amended as follows:
18. IT IS FOUND THAT THE COMMISSIONER HAD REASONABLE GROUNDS TO BELIEVE THAT DISCLOSURE OF THE RECORDS DESCRIBED IN PARAGRAPH 17, ABOVE MAY RESULT IN A SAFETY RISK. ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH PORTIONS OF THE MASTER FILE. [With respect to the NCIC record, described in paragraph 17.a, above, the respondents submitted no evidence to support the commissioner’s belief that disclosure of the information may create a safety risk. It is found that the respondents did not withhold any other records of the complainant’s criminal history.
19. The respondents claim that disclosure of NCIC information is prohibited by federal law, and is limited to law enforcement agencies and certain other designated non-law enforcement agencies.
20. It is concluded, however, that no federal law prohibits the disclosure of NCIC information pursuant to a state’s FOI Act. Commissioner, Department of Correction v. FOI Commission and Rashad El Badrawi, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV084016692S (November 17, 2009) (2009 Conn. Super. LEXIS 3092); Alexander Wood and the Manchester Journal Inquirer v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; FIC2008-480; David Collins and the New London Day v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; Docket # FIC2008-607.
21. Moreover, U.S. Department of Justice Order 556-73, 28 CFR Part 16, states that 28 U.S.C. 534, which regulates dissemination of NCIC records by the Attorney General, does not prohibit the subjects of arrest and convictions records from having access to those records.
22. It is concluded, therefore, that the respondents violated the FOI Act by withholding the complainant’s NCIC printout.
Minutes, Regular Meeting, March 9, 2011
Page 6
23. With respect the remainder of the records withheld from the complainant, described in paragraph 17, above, it is found that the commissioner had reasonable grounds to believe that disclosure of such information 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.
24. Accordingly, it is concluded that the respondents did not violate the FOI Act by withholding such portions of the master file as described in paragraph 17, above, with the exception of the complainant’s NCIC printout described in paragraph 17.a, above.]
[25.] 19. The complainant contended that the respondents failed to show him a copy of the “profile” in his master file. It is found that a “profile” identifies another inmate or staff member from whom the inmate must be separated.
[26.] 20. It is found that at the time of the complainant’s review, his master file did not contain a profile.
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. [Forthwith, the respondents shall permit the complainant to view his NCIC record.]
Docket #FIC 2010-343 James Harnage v. CC Perreault, FOI Liaison, State of Connecticut, Department of Correction, Garner Correctional Institution; CS Stowell, CC Bent, State of Connecticut, Department of Correction, Garner Correctional Institution; CC Daly, State of Connecticut, Department of Correction, Corrigan-Radgowski Correctional Institution; State of Connecticut, Department of Correction; Ms. Acosta, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care, Garner Correctional Institution; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
The Hearing Officer’s Report is amended as follows:
15. IT IS FOUND THAT THE COMMISSIONER HAD REASONABLE GROUNDS TO BELIEVE THAT DISCLOSURE OF THE RECORDS DESCRIBED IN PARAGRAPH 14, ABOVE MAY RESULT IN A SAFETY RISK.
Minutes, Regular Meeting, March 9, 2011
Page 7
[15.] 16. ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH PORTIONS OF THE MASTER FILE. [With respect to the NCIC record, described in paragraph 14.a, above, the respondent DOC submitted no evidence to support the commissioner’s belief that disclosure of the information may create a safety risk. It is found that the respondents did not withhold any other records of the complainant’s criminal history.
16. DOC claims that disclosure of NCIC information is prohibited by federal law, and is limited to law enforcement agencies and certain other designated non-law enforcement agencies.
17. It is concluded, however, that no federal law prohibits the disclosure of NCIC information pursuant to a state’s FOI Act. Commissioner, Department of Correction v. FOI Commission and Rashad El Badrawi, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV084016692S (November 17, 2009) (2009 Conn. Super. LEXIS 3092); Alexander Wood and the Manchester Journal Inquirer v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; FIC2008-480; David Collins and the New London Day v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety; Docket # FIC2008-607.
18. Moreover, U.S. Department of Justice Order 556-73, 28 CFR Part 16, states that 28 U.S.C. 534, which regulates dissemination of NCIC records by the Attorney General, does not prohibit the subjects of arrest and convictions records from having access to those records.
19. It is concluded, therefore, that the respondent DOC violated the FOI Act by withholding the complainant’s NCIC printout.
20. With respect to the remainder of the records withheld from the complainant, described in paragraph 14, above, it is found that the commissioner had reasonable grounds to believe that disclosure of such information 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.
21. Accordingly, it is concluded that DOC did not violate the FOI Act by withholding such portions of the master file as described in paragraph 14, above, with the exception of the complainant’s NCIC printout described in paragraph 14.a, above.
22. ] 17. The complainant contended that the respondents failed to show him a copy of the “profile” in his master file. It is found that a “profile” identifies another inmate or staff member from whom the inmate must be separated.
[23.] 18. It is found that at the time of the complainant’s review, his master file did not contain a profile.
Minutes, Regular Meeting, March 9, 2011
Page 8
[24.] 19. With respect to the complainant’s request for his medical records, described in paragraph 3.b, above, it is found that the respondent Correctional Managed Health Care provided records responsive to his request on June 30, 2010.
[25.] 20. The complainant adamantly insists, however, that he did not receive any of his mental health records, such as notes, reports and evaluations related to his suicide watch, a poem taken from him that the respondents considered to be indicative of the complainant’s intent to commit suicide, intake assessment forms, close observation checklists, progress notes related to the suicide watch, and other mental health records.
[26.] 21. The respondent Correctional Managed Health Care claims that it provided copies of the complainant’s mental health records when it provided copies of his medical records. It is found that mental health records are a part of the complainant’s medical records.
[27.] 22. Although both the complainant and the respondent’s witness testified credibly, it is found that the respondent Correctional Managed Health Care failed to prove that it provided the mental health records to the complainant. Although the respondent’s witness testified that she made 110 copies for the complainant, the respondent provided no evidence as to the total number of pages of the complainant’s medical file. In addition, although the respondent’s witness testified as to her general practice when making copies of medical files, she had no specific memory of making the complainant’s copies and the respondent presented no evidence that all the pages of the medical file were copied for the complainant.
[28.] 23. It is found, therefore, that the respondent Correctional Managed Health Care failed to prove that it provided copies of all the records that the complainant requested.
[29.] 24. Accordingly, it is concluded that the respondent Correctional Managed Health Care violated the disclosure provisions of §§1-210(a) and 1-212, G.S.
[30.] 25. With respect to the complainant’s request for a list of inmates and inmate numbers in Corrigan and Garner Correctional Institutions, described in paragraph 4.c, above, it is found that the respondent Perreault acknowledged receipt of the complainant’s request on May 13, 2010, two days after the complainant’s request. It is found that the respondent Perreault informed the complainant that the respondents would not provide the list of inmates to the complainant, based on “safety, security, and privacy reasons.”
[31.] 26. Subsection (G) of §1-210(b)(18), G.S., exempts from disclosure “[l]ogs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities” where the commissioner reasonably believes that disclosure may result in a safety risk.
Minutes, Regular Meeting, March 9, 2011
Page 9
[32.] 27. It is found that the list of inmates and inmate numbers requested by the complainant are “documents that contain information on the …assignment of inmates… at correctional institutions or facilities,” within the meaning of §1-210(b)(18)(G), G.S.
[33.] 28. It is further found that the commissioner has reasonable grounds to believe that disclosure of such records may result in a safety risk. It is found that disclosure of such information within the correctional environment may endanger other inmates by making it much easier to learn inmates’ locations and names, and, through the DOC website, to learn of inmates’ offenses, length of time in the facility, and discharge dates.
[34.] 29. It is concluded that the respondents proved that the commissioner had reasonable grounds to believe that disclosure of a list of inmate names and numbers may result in a security risk, within the meaning of §1-210(b)(18), G.S.
[35.] 30. Accordingly, it is concluded that DOC did not violate the FOI Act by withholding the list of inmates and inmate numbers from the complainant.
[36.] 31. The Commission declines to consider the imposition of a civil penalty against the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
[1. Forthwith, the respondent Department of Correction shall permit the complainant to view the NCIC printout of his criminal history.]
[2.] 1. Forthwith, the respondent Correctional Managed Health Care shall provide to the complainant, at no charge, a complete copy of his medical records, including his mental health records.
[3.] 2. [The complaint against the respondent Corrigan-Radgowski Correctional Institution is dismissed.] THE COMPLAINT AGAINST THE RESPONDENTS PERREAULT, STOWELL, BENT, DALY AND THE STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION IS DISMISSED.
Minutes, Regular Meeting, March 9, 2011
Page 10
Docket #FIC 2010-218 Apostle Immigrant Services and St. Rose of Lima Church v. Leonard Gallo, Chief, Police Department, Town of East Haven; and Police Department, Town of East Haven
The Hearing Officer’s Report is corrected and amended as follows:
9. With respect to the complainants’ request for records described in paragraph [3] 4.a, above, i.e, records of communications between ICE and the respondents, it is found that on January 18, 2011, the respondents provided records responsive to such request. It is found, specifically, that the respondents provided a CD containing 33 audio communications between the respondents and ICE. It is further found that the respondents continued their review of records of telephone communications.
13. With respect to the complainants’ request for records described in paragraph [3] 4.b, above, i.e., records relating to internal or external investigations, or communications about such investigations, of the Department’s failure to adhere to its own protocols, it is found that the respondents initially performed a completely inadequate search for records responsive to such request and concluded that they maintained no records responsive to the complainants’ request.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. [Forthwith] WITHIN 90 DAYS OF NOTICE OF DECISION IN THIS MATTER, the respondents shall continue to search for copies of records requested by the complainants, described in paragraph [3] 4 of the findings of fact. In particular, the respondents shall search all other records maintained by the respondents for responsive records. The respondents shall provide copies of such records, if any, to the complainant, and shall provide an affidavit describing their search, including the methods used and the files searched.