FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a complaint by                                     Final Decision

 

Tammy Canna,

 

                        Complainant

 

            against                                                              Docket #FIC 1995-402

 

Michael Steers, Program Supervisor for

Investigations, State of Connecticut

Department of Children and Families,

 

                        Respondent                                          September 25, 1996

 

            The above-captioned matter was heard as a contested case on April 11, 1996, at which time the complainant appeared to present testimony, exhibits and argument on the complaint, but the respondent failed to appear.  Thereafter the matter was reopened for hearing on August 2, 1996, to determine why civil penalties should not be assessed against the respondent.  Prior to the hearing scheduled for August 2, 1996, the respondent moved to reopen the matter on the merits, which motion was granted by the Commission at its meeting of July 24, 1996.  At the August 2, 1996 hearing,  the case caption was changed to correctly identify the respondent and his title.  Also at that time, the complainant and the respondent appeared 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.  It is found that in August, 1995, the complainant made allegations of child abuse against the director of the Julia Day Nursery & Kindergarten (“Julia Day”) to the daycare licensing unit of the state department of health.

 

            3.  It is found that in September, 1995, the matter identified in paragraph 2, above, was referred by the department of health to the respondent for investigation.

 

            4.  It is found that by letter dated October 20, 1995, the complainant requested of the respondent all documents concerning or involving Julia Day and/or its staff, including its licensing, complaints involving said school/day care center and/or its staff, and any investigation of such complaints.

 

 

5.  It is found that by letter dated October 26, 1995, the respondent denied the complainant’s request contending that §17a-28(b), G.S., exempts the records from disclosure.

 

6.  By letter of complaint filed with this Commission on November 24, 1995, the complainant alleged that the respondent violated the provisions of the Freedom of Information (“FOI”) Act by denying her request on October 26, 1995.

 

            7.  After the April 11, 1996 hearing at which the respondent failed to appear, the undersigned hearing officer issued an order to the respondent to deliver the records identified in paragraph 4, above, for an in camera inspection no later than April 29, 1996 (“the order”).

 

            8.  It is found that on April 15, 1996, the respondent’s agency signed for and received the order.

 

            9.  It is further found that the respondent failed to comply with the order and that his excuse that the order was addressed to the “director of investigations” rather than the “program supervisor for investigations” is feeble and inadequate for such failure.

 

            10..It is further found that the respondent’s subsequent provision of the in camera records is insufficient to excuse the respondent’s failure to comply with the order for production no later than April 29, 1996.

 

11.  It is found that the records identified in paragraph 4, above, and submitted for in camera inspection are public records within the meaning of §1-18a(d), G.S.

 

            12.  Section 17a-28(b), G.S., provides in pertinent part:

 

                        Notwithstanding the provisions of section[s] 1-19, 1-19a or 1-19b[G.S.],

records maintained by the department [of children and families] shall be confidential and shall not be disclosed. … [Emphasis added].

 

            13.  Section 17a-28(a)(5), G.S., defines the “records” that shall not be disclosed under §17a-28(b) G.S., as those records that contain:

 

information created or obtained in connection with the department’s child protection activities or activities related to a child

while in the care or custody of the department, including information

in the registry of reports to be maintained by the commissioner pursuant

to subsection (g) of section 17a-101, provided records which are not created by the department are not subject to disclosure, except as provided pursuant to subsections ( c), (i) or (k) of this section.  [Emphasis added].

 

            14.  Furthermore, §17a-101(g), G.S., provides in pertinent part:

 

                        The commissioner of children and families shall maintain a registry

                        of the reports received pursuant to this section and shall adopt

                        regulations to permit the use of the registry on a twenty-four hour

daily basis to prevent or discover abuse of children.  The information

contained in the reports and any other information relative to child

abuse, wherever located, shall be confidential subject to such

regulations governing their use and access as shall conform to the

requirements of federal law or regulations.  [Emphasis added].

 

            15.  It is found that the records at issue were created or obtained in connection with the respondent’s child protection activities within the meaning of §17a-28(a)(5), G.S.

 

16.  It is also found that the records at issue relate to a report of child abuse on the part of the director of Julia Day within the meaning of §17a-101(g), G.S.

 

            17.  The complainant claims that §17a-28(d)(7), G.S., creates certain limited rights of access to persons mandated to report child abuse.

 

            18.  The Commission notes that it is without jurisdiction to enforce special rights of access outside of those contained within the provisions of the FOI Act.

 

            19.  It is concluded that the respondent did not violate §1-19(a), G.S., by denying the complainant’s request for records identified in paragraph 4, above, under the facts of this case.

 

            20.  The Commission notes that the hearing into this matter was originally reopened on August 2, 1996, for a consideration of why civil penalties should not be imposed on the respondent.

 

21.  Section 1-21i(b)(2), G.S., provides in pertinent part:

 

… upon the finding that a denial of any right created by sections 1-15, 1-18a, 1-19 to 1-19b, inclusive, and 1-21 to 1-21k, inclusive, was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard … the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.  [Emphasis added].

 

            22.  It is concluded that because the Commission did not find that a denial of any right created by the pertinent sections referenced in paragraph 21, above, occurred under the facts of this case, this Commission is without statutory authority to impose a civil penalty against the respondent.

 

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

 

1.  The complaint is hereby dismissed.

 

            2.  Although the Commission is compelled to dismiss the complaint in this matter, it is greatly distressed by the respondent’s failure to comply with the Commission’s order during the pendency of this case, as described in paragraphs 7 through 10 of the findings, above.  The Commission warns the respondent that future failures to comply with orders of this Commission will lead it to seek the imposition of maximum civil and criminal sanctions against him as permitted under law.

 

            3.  The findings of fact, conclusions of law and orders entered concerning contested case docket #FIC 1995-402 and approved on June 26, 1996, are superseded by those findings of fact, conclusions of law and orders contained herein.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 1996.

 

 

 

__________________________

Elizabeth A. Leifert

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:

 

Tammy Canna

c/o Donna Decker Morris, Esq.

Susman, Duffy & Segaloff, P.C.

55 Whitney Avenue

P.O. Box 1684

New Haven, CT 06510-1300

 

 

Michael Steers, Program Supervisor for Investigations, State of Connecticut Department of Children and Families,

c/o  Kathryn Mobley, Esq.

Assistant Attorney General

MacKenzie Hall

110 Sherman Street

Hartford, CT 06105-2294

 

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission