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