FREEDOM OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a
Complaint by Final
Decision
CORRECTED
Robie
Irizarry,
Complainant(s)
against Docket
#FIC1995-419
Warden,
Willard Correctional Institution,
State of Connecticut, Department of Correction,
Respondent(s) October
23, 1996
The above-captioned matter was heard
as a contested case on July 10, 1996, 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.
It is found that by letter dated October 16, 1995, the complainant
requested that the respondent provide him with a copy of each of the following
documents:
(a) any documentation, including correspondence
with the
Connecticut State
Police (“CSP”) relating to claims that he is a
member of the Latin
Kings or engaged in a conspiracy
with that group;
(b) any statements and/or written complaints
against him alleging
sexual harassment;
(c) any file memoranda concerning him since Warden
Buell
became the warden
of Willard Correctional Institution
(“WCI”);
DOCKET #FIC1995-419 PAGE
2
(d)
any written complaints against him filed
by his subordinates from
May
1, 1995 through the date of receipt of this records request; and
(e) any investigation report completed by the
state Department of
Corrections (“DOC”) or by internal affairs for DOC.
3.
By letter of complaint dated November 6, 1995, and filed with this
Commission on November 13, 1995, the complainant appealed the respondent's
failure to respond to, or comply with, his records request.
4.
It is found that the requested records are public records within the
meaning of §§1-18a(d)
and 1-19(a), G.S.
5.
It is found that the complainant, and subject of most of the requested
records, is currently employed by the DOC, but not at the respondent’s
facility.
6.
It is found that by letter dated December 6, 1996, the respondent
advised the complainant that his records request had been forwarded to the
state Attorney General’s office because the request related to an “ongoing
security investigation within the [DOC].”
7.
It is found that beginning in July 1995 the DOC’s Security Division and
the CSP, simultaneously conducted investigations into six separate allegations
of inappropriate and/or criminal activity by DOC staff to: offer early release to certain inmates;
electronically eavesdrop on the respondent warden’s office; fix urinalysis
tests for alleged gang member inmates; convey contraband substances into WCI;
order “hits” on DOC staff, working in conjunction with alleged gang members;
and to engage in unprofessional and/or illicit relationships with inmates.
8.
Specifically, it is found that there was an investigation of DOC
employees suspected of involvement with the “security risk group” 20-Luv, whose
members were purportedly engaging in inappropriate or illegal activities at
WCI.
9.
It is found that based upon the factual findings, conclusions and
recommendations contained in the DOC Security Division’s report (“SD report”),
and evidence and documentation obtained as a result of the investigations,
surveillance and/or disciplinary action was taken against certain DOC employees
and/or inmates.
10.
It is found, however, that the SD report contains no factual findings or
legal conclusions that the complainant has, or had, an affiliation with 20-Luv
or the Latin Kings, and no action was taken against the complainant as a result
of the SD report.
DOCKET #FIC1995-419 PAGE
3
11.
The respondent argues that: (a) the records described in paragraph 2(a)
of the findings, above, pertaining to allegations of the complainant’s
affiliation with the Latin Kings would exist only as part of the documentation
filed by the complainant with the state Commission on Human Rights and
Opportunities (“CHRO”), and not as part of DOC’s files; and that (b) all other
records described in paragraph 2 of the findings, above, including the records
described in paragraph 2(a) relating to CSP correspondence, would be contained
in the Security Division’s investigation file (“SD file”), which includes the
SD report.
12.
The respondent submitted the SD file to the Commission for in camera
(“IC”) inspection pursuant to §1-21j-35(f)
of the Commission's regulations. The
documents contained therein have been designated 95-419-1 through 95-419-263.
13.
The index to the records submitted by the respondent to the Commission
for IC inspection, cites §§1-19(b)(2)
and 1-19(b)(3), G.S., as the statutory bases for withholding the disclosure of
the records containing: the identities of persons who gave statements in
furtherance of the SD investigation; the identities and statements of persons
investigated; the statements of informants; the photographs and letters seized
from prison inmates; and the SD report, and the findings contained therein.
14.
Section 1-19(b)(2), G.S., permits the nondisclosure of “personnel or
medical and similar files, the disclosure of which would constitute an invasion
of personal privacy.”
15.
Perkins
v. FOIC, 228 Conn. 158 (1993), sets forth the standard
for the exemption contained in §1-19(b)(2),
G.S. The claimant has a twofold burden
of proof:
First,
[he] must establish that the files in question are within the categories of
files
protected by the exemption, that is, personnel, medical or similar files.
Second,
[he] must show that disclosure of the records would constitute an
invasion
of personal privacy
16.
It is found that the subject SD file for which the §1-19(b)(2),
G.S., claim of exemption has been made by the respondent, has either been made
part of a DOC employee’s personnel file, or the records are the functional
equivalent of personnel file information in that the records were generated in
connection with DOC’s investigation, and subsequently relied on by DOC to take
action against certain DOC employees and/or inmates.
17.
It is concluded, therefore, that the SD file is a “personnel” or
“similar” file within the meaning of §1-19(b)(2),
G.S.
DOCKET #FIC1995-419 PAGE
4
18.
The Court in Perkins further instructs :
[The] invasion of personal
privacy exception of §1-19(b)(2)
precludes
disclosure,
therefore, only when the information sought by a request
does
not pertain to legitimate matters of public concern and is highly
offensive
to a reasonable person.
19. It is found that the disclosure of the SD
file at issue in this case would not be highly offensive to a reasonable
person.
20.
It is also found, however, that even if disclosure of the subject SD
file would be highly offensive to a reasonable person, documentation of a
public employee’s (particularly a DOC employee’s) or an inmate’s criminal
misconduct, the actions or activity constituting such misconduct, and the
discipline, if any, meted out, pertain to legitimate matters of public concern.
21.
It is therefore concluded that the SD file is not exempt from public
disclosure
pursuant to §1-19(b)(2),
G.S.
22.
Section 1-19(b)(3), G.S., permits the nondisclosure of:
records of law
enforcement agencies not otherwise available
to the public which
records were compiled in connection with
the detection or
investigation of crime if disclosure would not
be in the public
interest because it would result in the disclosure
of (A) the identity
of informants not otherwise known or the
identity of
witnesses not otherwise known whose safety would
be endangered or
who would be subject to threat or
intimidation if
their identity was made known, (B) signed statements
of witnesses, (C)
information to be used in a prospective law
enforcement action
if prejudicial to such action, (D) investigatory
techniques not
otherwise known to the general public
23.
It is found that for purposes of §1-19(b)(3),
G.S., the DOC is a law enforcement agency and consequently the SD file
generated as a result of the simultaneous investigation by the DOC and CSP, and
kept as part of the DOC’s and the respondent’s files, is a record of a law
enforcement agency within the meaning of that statute.
24.
The respondent argues that compliance with the complainant’s records
request would jeopardize the safety of all persons who cooperated with the DOC
investigation and/or gave statements in furtherance of the investigation.
DOCKET #FIC1995-419 PAGE
5
25.
The respondent also claims that at least one DOC lieutenant was granted
a protective order by the court in response to threats against him and his
family because he purportedly gave statements in furtherance of the
investigation.
26.
The respondent further claims that two prison inmates were the victims
of a severe beating because they purportedly gave statements in furtherance of
the investigation.
27.
In addition, the respondent claims that the DOC staff, prison inmates,
and informants who provided statements in furtherance of the investigation were
promised confidentiality in exchange for their cooperation with the DOC.
28.
Given the facts of this case, and the nature of the allegations and
suspicions which led to the investigation that generated the records at issue
in this case, it is found that the safety of certain witnesses and informants
would be endangered if their identities were made known.
29.
On the basis of the IC inspection of the SD records at issue it is
therefore concluded that the following records, in their entirety, contained
within the SD file are permissively exempt from disclosure under the provisions
of §§1-19(b)(3)(A)
and 1-19(b)(3)(B), G.S.:
95-419-6,
95-419-7, 95-419-10, 95-419-14, 95-419-23, 95-419-24, 95-419-25, 95-419-26,
95-419-27, 95-419-28, 95-419-29, 95-419-30, 95-419-31, 95-419-32, 95-419-33,
95-419-34, 95-419-35, 95-419-36, 95-419-37, 95-419-38, 95-419-39, 95-419-40,
95-419-41, 95-419-43, 95-419-44, 95-419-45, 95-419-50 through 95-419-66,
95-419-135, 95-419-141, 95-419-144 through 95-419-162, 95-419-182 through
95-419-231, 95-419-235 through 95-419-263.
30.
On the basis of the IC inspection of the SD records at issue it is also
concluded that portions of some of the remaining records contained within the
SD file may reference or identify witnesses and/or informants as set forth in §1-19(b)(3)(A),
G.S. Therefore, the remaining records,
or portions of the remaining records in the SD file are subject to public
disclosure to the extent noted parenthetically below:
95-419-1 (all), 95-419-2 (all),
95-419-4 (all), 95-419-5 (all), 95-419-8 (all), 95-419-9
(all), 95-419-10 (all, except
the first paragraph), 95-419-11 (all), 95-419-12 (all), 95-
419-13 (all), 95-419-15
(paragraph “6.” only), 95-419-16 (all), 95-419-17 (all), 95-
419-18 (all), 95-419-19 (all,
except the text following the paragraph beginning “A
subsequent…”), 95-419-20 (all,
except the text of each paragraph before the caption
“Conclusions/Culpability”),
95-419-21 (all), 95-419-22 (all), 95-419-42 (all, except
paragraph “B.2.”), 95-419-46
(all), 95-419-47 (all), 95-419-48 (all), 95-419-49 (all),
DOCKET #FIC1995-419 PAGE
6
95-419-136 (all), 95-419-137 (all),
95-419-139 (all), 95-419-140 (all), 95-419-142 (all)
95-419-143 (all), 95-419-163
through 95-419-181 (all), 95-419-231 through 95
-419-234 (all).
31. In
its discretion the Commission declines to order the disclosure of the letters
which constitute SD records 95-419-67 through 95-419-134, and the medical
information contained in the SD record 95-419-138.
32.
Consequently, it is concluded that the respondent's failure to provide
the complainant with copies of the requested SD records, except for those SD
records or portions of SD records identified as exempt from disclosure in
paragraphs 29, 30 and 31 of the findings, above, violated the provisions of §§1-15(a)
and 1-19(a), G.S.
The following order by the Commission
is hereby recommended on the basis of the record concerning the above-captioned
complaint:
1.
The respondent shall forthwith provide the complainant with a copy of
the SD records described in paragraph 30 of the findings, above, free of
charge, and shall forthwith furnish to the complainant an affidavit stating
that the records provided constitute true and accurate copies of the IC
documents submitted to the Commission.
2.
In complying with paragraph 1 of the order, above, the respondent may
also redact the following information:
(a)
the
name, address or telephone number of all persons referenced, other than the
complainant;
(b)
the job title, rank or classification of
all persons referenced, other than the complainant;
(c)
the
race and gender of all persons referenced, other than the complainant;
(d)
the date of birth of all persons
referenced, other than the complainant;
(e)
the
signature, initials or alias of all persons referenced, other than the
complainant; and
(f)
the
prison or employment status, and social security or identification number of
all persons referenced, other than the complainant.
DOCKET #FIC1995-419 PAGE
7
3.
Henceforth, the respondent shall strictly comply with the disclosure
requirements for nonexempt public records, as set forth in §§1-15(a)
and 1-19(a), G.S.
Approved by Order of the Freedom of Information
Commission at its regular meeting of October 23, 1996 .
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
Docket # FIC 1995-419 Page
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:
Robie Irizarry
c/o Otto
P. Witt, Esq.
Witt & Associates, PC
185 Silas Deane Hwy.
Wethersfield, CT 06109
Warden,
Willard Correctional Institution, State of Connecticut,
Department
of Correction,
c/o Terence M. O’Neill, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105-2294
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission