FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Paul B. Kraus,
Complainant
against Docket #FIC 93-243
State of Connecticut Department of Children and Families,
Respondent January 26, 1994
The above-captioned matter was heard as a contested case on November 19, 1993, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed July 30, 1993, and supplemented by a letter filed September 21, 1993, the complainant appealed to the Commission, alleging that the respondent denied him access to certain records.
3. It is found that the complainant visited the office of the respondent on July 1, 1993 and asked to see any records concerning his son, himself, or his wife.
4. It is found that the respondent provided the complainant with access to the records of the correspondence between him and the respondent, and with the records of his son's treatment plan, but would not provide access to any other records.
5. It is found that the complainant's son was at all times relevant in the care or custody of the respondent.
6. Pursuant to 17a-28(5), G.S., the respondent maintains records related to the complainant's son while he was in its care or custody.
7. It is concluded that the records relating to the complainant's son which the respondent declined to provide are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
Docket #FIC 93-243 Page 2
8. The complainant maintains that his rights of access are established by the Commission's precedent in docket #FIC 78-253, Edward A. Campochiaro vs. Department of Children and Youth Services, of which record and decision the Commission takes administrative notice.
9. It is found, however, that docket #FIC 78-253 involved no claim of exemption, and that the department of children and youth services did not in that case object to that complainant obtaining a copy of the file in question.
10. It is concluded that docket #FIC 78-253 does not establish a precedent applicable to this case.
11. The respondent maintains that it cannot provide the withheld records to the complainant, pursuant to 17a-28(b), G.S.
12. Section 17a-28(b), G.S., provides:
Notwithstanding the provisions of section 1-19, 1-19a or 1-19b, records maintained by the department shall be confidential and shall not be disclosed. Neither the commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual, agency, corporation or organization without the consent of the person, his attorney or his authorized representative, except as provided in subsections (c) and (d) of this section. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.
13. The respondent maintains that the complainant is not his son's attorney or authorized representative, because the respondent has been the son's legal guardian since February, 1992.
14. However, 17a-28(3), G.S., defines "authorized representative" to mean "a parent, guardian, conservator or other individual authorized to assert the confidentiality of or right of access to records of a person." [Emphasis added.]
15. It is concluded that the complainant is an "authorized representative" within the meaning of 17a-28(3), G.S.
16. The respondent additionally maintains that the issue of whether its records may be obtained pursuant to the Freedom of Information ("FOI") Act has been previously determined by the Commission, and that all of the previous decisions have held that the respondent's records are not subject to release.
17. At the request of the respondent, the Commission takes administrative notice of its records and decisions in contested
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cases docket #FIC 90-289, Raymond H. and Elaine M.J. Grandmaison v. Department of Children and Youth Services, docket #FIC 88-458, Helen Z. Pearl v. Department of Children and Youth Services; docket #FIC 77-186, Barbara Irwin v. Department of Social Services; docket #FIC 85-47, Michael Sinnot v. Department of Children of Youth Services; docket #FIC 78-169, Albin C. Statkum v. Department of Children and Youth Services.
18. Contested case docket #FIC 90-289 involved a request by parents for information about their child, and a claim of exemption pursuant to 17-431, now codified as 17a-28, G.S., relating to records maintained by the department of children and youth services, the predecessor agency to the respondent in this case.
19. In docket #FIC 90-289, the Commission concluded that then 17-431, G.S., now 17a-28, G.S., created a special right of access, other than any public right, for parents and guardians to confidential information, by making an appropriate application to the department of children and youth services.
20. That special right of access is set forth in 17a-28(j), which provides in relevant part:
In addition to the right of access provided in section 1-19, any person, regardless of age, his authorized representative or attorney shall have the right of access to any records made, maintained or kept on file by the department, whether or not such records are required by any law or by any rule or regulation, when those records pertain to or contain information or materials concerning the person seeking access thereto, including but not limited to records concerning investigations, reports, or medical, psychological or psychiatric examinations of the person seeking access thereto, provided that ... (2) if the commissioner determines that it would be contrary to the best interests of the person or his authorized representative or attorney to review the records, he may refuse access by issuing to such person or representative or attorney a written statement setting forth the reasons for such refusal, and advise the person, his authorized representative or attorney of the right to seek judicial relief.
21. The complainant maintains that since the respondent has not provided a written statement pursuant to 17a-28(j)(2), G.S., he is entitled to the records he requested.
22. However, in contested case docket #FIC 90-289, as well as contested case docket #FIC 87-47, the Commission concluded that it was without jurisdiction to enforce rights of access created by statutes other than the FOI Act, such as then 17-431, G.S., now codified in 17a-28, G.S.
Docket #FIC 93-243 Page 4
23. Further, it is found that the Commission in this case is presented with no compelling reason to diverge from its decision in docket #FIC 90-289.
24. The complainant finally maintains that his request for records regarding himself and his wife is separate and distinct from his request for records regarding his son.
25. It is found that the respondent maintains records that refer to the family comprising the complainant, his wife and his son.
26. It is also found that the respondent does not maintain records solely concerning the complainant or his wife, other than the correspondence already provided to him.
27. It is concluded that any records or portions of records that refer to the complainant or his wife cannot logically be separated from the records the respondent maintains concerning the complainant's son, who at all times was the real subject of the records and the reason the records were maintained.
28. The respondent also maintains that the requested records are exempt from disclosure pursuant to federal statute and regulations.
29. In light of the findings and conclusions above, however, it is unnecessary to address any additional claims of exemption.
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 January 26, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Paul B. Kraus
9 Old Long Ridge Road
Stamford, CT 06903-1620
State of Connecticut, Department of Children and Families
c/o Sonia Stoloff, Esq.
Assistant Attorney General
MacKenzie Hall
110 Sherman Street
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission