FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Robert DeCrescenzo,

 

                        Complainant

 

            against              Docket #FIC 89-105

 

Acting Attorney General of the State of Connecticut,

 

                        Respondent                  March 14, 1990

 

            The above-captioned matter was heard with #FIC 89-104, DeCrescenzo v. Department of Children and Youth Services because of the similarity of the cases.  The matters were heard as contested cases on August 18, 1989 and on September 8, 1989, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  On December 19, 1989, the respondent was ordered to produce a Vaughn-type index of the records that it had withheld from disclosure.

 

            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.         On February 9, 1989 the complainant requested copies of records concerning Easter House, Friends of Children and Adoption World.

 

            3.         On March 15, 1989, the complainant renewed his request.

 

            4.         On March 22, 1989, the complainant filed his complaint with the Commission, alleging he had been denied copies of records in violation of the Freedom of Information Act.

 

            5. The respondent claims that she is not required to provide the records because 1-15, G.S. does not require the respondent to do research or answer questions, and because the requested records have been provided to the complainant on or about March 1, 1989, in response to an earlier request.

 

            6.         The respondent also claims the benefit of numerous exceptions to disclosure including 1-19(b)(4), 1-19(b)(10), 1-19(b)(14), 17-431, and 45-68a, G.S.

 

Docket #FIC 89-105                           page two

 

            7.         It is found that on February 9, 1989, the complainant requested copies of records from the Commissioner of the Department of Children and Youth Services (DCYS, hereinafter) concerning Easter House, Adoption World, and Friends of Children.

 

            8.         It is found that on or about March 1, 1989, the complainant received copies of 1,587 pages of records in response to the February 9, 1989 request to DCYS.

 

            9.         It is found that the complainant and other members of the complainant's law firm, Updike, Kelly and Spellacy, P.C., represent Easter House, Friends of Children, Inc., and Seymour Kurtz, the chief executive officer of Easter House and Friends of Children.

 

            10.       It is found that the activities of Easter House were investigated by the respondent during 1988.

 

            11.       It is found that the activities of Easter House were investigated also by reporters from Channel 3, a Hartford television station, in 1988, and that in December certain problems concerning Easter House were aired on Channel 3.

 

            12.       It is found that, on February 7, 1989, Assistant Attorney General Susan Pearlman sent a letter on behalf of DCYS to Seymour Kurtz.  In the letter she stated that, until Easter House is licensed by the respondent, it may not place Connecticut children in foster homes or in adoption.

 

            13.       It is found that on February 9, 1989, the date of the request for records, Channel 3 reported that Seymour Kurtz, the owner of Easter House, said he would go to court to continue his business in Connecticut.

 

            14.       It is found that on February 14, 1989, DCYS received a request from Kurtz' attorneys for a formal hearing on the order that stopped Easter House from placing children.

 

            15.       It is found that on or about February 23, 1989, Kurtz told reporters for the Hartford Courant that he planned to take the state to court for its action prohibiting Easter House from placing children.

 

            16.       It is found that on or about March 20, 1989, Easter House filed an administrative appeal of the alleged administrative action contained in the letter of Assistant Attorney General Pearlman dated February 7, 1989.

 

Docket #FIC 89-105                           page three

 

            17.       It is found that on or about March 23, 1989, Friends of Children, Inc., through the complainant herein, instituted a mandamus action with respect to its applications for approval as a Connecticut child placement agency.

 

            18.       The records withheld by the respondent include copies of records that were disclosed to the complainant on March 1, 1989, in response to his request to the DCYS.

 

            19.       It is found that the respondent is not required to disclose the records already provided by DCYS a second time.

 

            20.       It is found that the records withheld by the respondent include legal research such as copies of reported decisions, statutes, annotations, law review articles or comments, and hand written notes of attorneys developing a legal analysis, legal claims, and courses of action.

 

            21.       It is found that the materials described at paragraph 20 are exempt from disclosure pursuant to 1-19(b)(4), G.S.

 

            22.       It is found that the respondent withheld certain other records which she failed to prove are wholly or partially exempt from disclosure.  These include the following:

 

            (a)        records of communications between DCYS and the Attorney General or the office of the Attorney General;

 

            (b)        records pertaining to an Illinois Case that were received by DCYS;

 

            (c)        research into legislative history, and newspaper clippings;

           

            and,

 

            (d)        documentation pertaining to an adoption case of Easter House and its adoption practices.

 

            23.       It is found under the facts of this case where the complainant is using 1-15, G.S., for purposes of discovery on behalf of his clients, that it is not appropriate to require the respondent to comply with the request for disclosure with respect to the records that are itemized at paragraph 22 (a) through 22 (d).

 

Docket #FIC 89-105                           page four

 

            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.

 

Approved by order of the Freedom of Information Commission at its regular meeting of March 14, 1990.

 

                                                          

                                    Tina C. Frappier

                                    Acting Clerk of the Commission

 

Docket #FIC 89-105                           page five

 

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:

ROBERT M. DECRESCENZO, ESQ.

Updike, Kelly & Spellacy, P.C.

One State Street

P.O. Box 31277

Hartford, CT 06103

 

ACTING ATTORNEY GENERAL OF THE STATE OF CONNECTICUT

c/o Benjamin Zivyon, Esq.

Assistant Attorney General

MacKenzie Hall

110 Sherman Street

Hartford, CT 06105

 

                                                          

                                    Tina C. Frappier

                                    Acting Clerk of the Commission