FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Evelyn DeRosa d/b/a Linden
Nursery School,
Complainant
against Docket
#FIC 92-12
Marilyn Clark-Pellett,
Hearing Officer, State of Connecticut, Department of Health Services and State
of Connecticut, Department of Health Services,
Respondents February 26, 1992
The above-captioned matter was heard as a contested
case on January 21, 1992, at which time the complainant and the respondents
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
respondents are public agencies within the meaning of 1-18a(a), G.S.
2. On
September 24, 1991 the Linden Nursery School (hereinafter "school")
was closed by the respondent Department of Health Services (hereinafter
"Department") and the complainant's
license to operate the school was summarily suspended as a result of
allegations that child abuse was occurring at the school.
3. On
December 6, 1991, and January 9 and 10, 1992 the Department held hearings to
determine whether the allegations of child abuse against the school warrant
permanent revocation of the complainant's license.
4. It is
found that the January 9 and 10, 1992 hearings (hereinafter "January
hearings"), described in paragraph 3, above, were convened in public
session but were closed to the
Docket #FIC 92-12 Page
2
public following a ruling on
a motion by the respondent department to hold the hearings in executive
session. The hearing officer granted
the motion on the basis that the entire subject of the charges related to information
relative to child abuse.
5. By letter
of complaint dated and filed January 10, 1992, the complainant appealed to the
Commission alleging that the January hearings should have been convened and
held entirely in public session.
6. At the
hearing on this matter, the respondents moved to dismiss the appeal on the
basis that the complainant failed to allege a violation of the Freedom of
Information ("FOI") Act.
7. The
complainant maintains that the closure of the January hearings constituted a
violation of the open meetings requirements of 1-21, G.S.
8. It is
found that the complainant has successfully alleged a violation of the FOI Act.
9. The
respondents' motion to dismiss is accordingly denied.
10. It is
found that the January hearings were conducted in accordance with a procedure
that resulted from the settlement of a previous FOI complaint, docket #FIC
91-313, involving the respondents here and another complainant and which
concerned the closure of the December 6, 1991 hearing.
11. It is
found that pursuant to the settlement reached in docket #FIC 91-313, the
respondents agreed that any future hearing concerning the school will be
convened in public session. According
to that agreement, any future hearing may subsequently be closed if, following
a summarization by the attorney calling any witness of the nature of the
testimony to be given as it relates to the charges, the hearing officer rules
that the testimony should be taken in executive session.
12. It is
found that the respondent hearing officer closed the January hearings in
accordance with the settlement agreement described in paragraph 11, above.
13. The
respondents maintain that both federal and state law provide for broad
confidentiality concerning information pertaining to child abuse allegations,
and that pursuant to such laws, the hearings may be held in executive session.
Docket #FIC 92-12 Page
3
14. The
respondents further maintain that prior decisions of this Commission have
affirmed the confidentiality provisions pertaining to information relating to
allegations of child abuse.
15. The
complainants maintain that the respondents' hearings should be open to the
public, with the exception that any
testimony given by a child may be conducted in executive session. The complainants further maintain that with
respect to testimony given by any person, other than a child, appropriate
measures may be taken to keep the identities of children confidential.
16. It is
found that pursuant to the federal Child Abuse Prevention and Treatment Act, 42
U.S.C. 5106, et seq., in order to receive federal grants for child abuse
and neglect programs, the State of Connecticut must "provide for methods
to preserve the confidentiality of all records in order to protect the rights
of the child and of the child's parents or guardians...", 42 U.S.C.
5106a(b)(4).
17. It is
found that the federal regulations implementing the federal Child Abuse
Prevention and Treatment Act, provide:
(i)
Confidentiality. (1) The state must provide
by statute that all records concerning reports and
reports of child abuse and neglect are confidential
and that their unauthorized disclosure is a criminal
offense. 45
CFR 1340.14(i)(1)
18. It is
found that in accordance with the federal law mandates, the State of
Connecticut has adopted legislation to ensure confidentiality of information
pertaining to allegations of child abuse.
19. Section
17a-101(g), G.S., provides:
"The information contained in [Department of
Children and Youth Services ("DCYS")]
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.)
20. The
Commission takes administrative notice of the record and its decisions in
docket #FIC 84-18 and docket #FIC 88-9.
Docket #FIC 92-12 Page
4
21. It is
concluded that the statutes set forth in paragraphs 16 through 19, above,
constitute a broad grant of confidentiality with respect to information
pertaining to allegations of child abuse.
22. It is
concluded therefore that pursuant to 1-18a(e)(5) and 1-19(b)(10),
G.S., the respondents did not violate the FOI Act when they heard the testimony
concerning the allegations of child abuse in executive session.
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 by law to rule in the aforesaid manner, it
sympathizes with the policy arguments presented by the complainant on the facts
of this case.
Approved by Order of the
Freedom of Information Commission at its regular meeting of February 26, 1992.
Debra L. Rembowski
Acting Clerk of the
Commission
Docket #FIC 92-12 Page
5
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:
Evelyn DeRosa d/b/a Linden
Nursery School
c/o Attorney David T.
Grudberg
Jacobs, Grudberg, Belt, &
Dow
P.O. Box 606
New Haven, CT 06503
Marilyn Clark-Pellett,
Hearing Officer
State of Connecticut,
Department of Health Services and
State of Connecticut,
Department of Health Services
c/o Assistant Attorney
General Thomas J. Ring
P.O. Box 120
Hartford, CT 06101
Debra L. Rembowski
Acting Clerk of the
Commission