FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

JoNel Newman and Connecticut Civil Liberties Union Foundation,

 

                        Complainants

 

            against              Docket #FIC 91-361

 

Commissioner, State of Connecticut, Department of Correction,

 

                        Respondent                  November 12, 1992

 

            The above-captioned matter was heard as a contested case on May 21 and June 3, 1992, at which times the complainants 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.  By letter dated October 17, 1991 the complainants requested copies of the following records from the respondent:

 

            a.         budget options and budgets submitted to the

                        respondent from five Department of Correction

                        (hereinafter "DOC") facilities, programs

                        and departments - Connecticut Correctional

                        Institute at Niantic (hereinafter "CCIN"),

                        handicapped state grants, halfway houses,

                        women and children's halfway house and the

                        medical department;

 

            b.         supporting documentation, if any, submitted by

                        the facilities, programs and departments described

                        in paragraph 2a., above; and

 

            c.         a list by position of all CCIN employees who

                        received furlough or layoff notices.

 

Docket #FIC 91-361                           Page 2

 

            3.  By letter dated October 18, 1991, the respondent's deputy commissioner acknowledged the complainants' records request and indicated that it had been referred to the Attorney General's Office for review.

 

            4.  By letter to the Attorney General's Office, dated November 14, 1991, the complainants reiterated their records request.

 

            5.  By letter to the complainants dated November 15, 1991, an Assistant Attorney General, acting as counsel for the respondent, denied the complainants' request for records.  Counsel for the respondent indicated that the records sought by the complainants were exempt from disclosure pursuant to 1-19(b)(1), (4) and (9), G.S.  In addition, counsel stated that providing the requested records would be contrary to a consent decree entered into by the complainants and the respondent.

            6.  By letter dated November 20, 1991 and filed November 21, 1991, the complainants appealed to this Commission alleging that the respondent failed to provide access to the requested records and requested that the Commission impose civil penalties upon the respondent.

 

            7.  It is concluded that the requested records are public records within the meaning of 1-18a(d), G.S.

 

            8.  It is found that the complainant Newman acts as counsel for a class of plaintiffs (comprised of women who are or in the future will be confined in CCIN) and that the respondent was a defendant in a civil action filed in the United States District Court for the District of Connecticut, known as West, et al. v. Manson, et al., Docket #H-83-366 (AHN) (hereinafter "West v. Manson").

 

            9.  It is also found that in January 1988 in connection with West v. Manson, the district court issued an order appointing a mediation panel comprised of three individuals:  one selected by the plaintiffs, one selected by the defendants and one selected by the settlement judge.  The mediation panel's function was to resolve all of the legal and factual issues involved in West v. Manson.

 

            10.  It is also found that in January 1989, the district

court approved and entered a consent judgment purporting to resolve all of the issues raised in West v. Manson.

 

            11.  It is also found that the consent judgment provides that the mediation panel (hereinafter referred to as "the monitoring panel") is empowered to monitor the provisions of the

 

Docket #FIC 91-361                           Page 3

 

consent judgment and resolve all future disputes, issues and matters relating thereto.  The judgment also provides that if the monitoring panel unanimously votes on the resolution of a matter before it, that matter is unappealable; but if a unanimous decision cannot be reached, it shall be referred to a settlement judge, and if settlement fails, the matter shall be assigned to a district court trial judge for adjudication.

 

            12.  It is also found that in October 1991, the complainants brought various concerns pertaining to the respondent's budget cuts and their affect on CCIN to the attention of the monitoring panel, pursuant to the provisions described in paragraph 11, above.  In bringing their concerns to the monitoring panel's attention, the complainants provided it with documentation concerning layoffs that they received pursuant to a records request made to the respondent earlier that month.

 

            13.  The respondent maintains that due to the consent judgment and the ongoing operation of the monitoring panel in response to issues raised by the complainants, that West v. Manson is still pending litigation and that all of the requested records are exempt from disclosure pursuant to 1-19(b)(4), G.S., because they pertain to strategy and negotiations with respect to that litigation.

 

            14.  It is found that the complainant filed a motion for attorneys fees in connection with West v. Manson in December 1991.

 

            15.  For the reasons set forth in paragraphs 13 and 14, above, it is found that the parties are involved in pending claims and litigation within the meaning of 1-19(b)(4), G.S.

 

            16.  It is also found however, that the respondent failed to prove that the requested records are records which pertained either to strategy or negotiations with respect to the pending claims and litigation within the meaning of 1-19(b)(4), G.S., and it is therefore concluded that this exemption does not apply to the subject records in this case.

 

            17.  Although this claim was not stated in the letter of denial precipitating this complaint, the respondent maintains that under the laws of discovery of this state, disclosure of the requested records would affect the rights of the litigants in West v. Manson, and that they are therefore exempt from disclosure pursuant to 1-19b(b)(1), G.S.

 

            18.  The respondent contends that the complainants' use of the Freedom of Information (hereinafter "FOI") Act to gain access to documents that they in turn submit to the monitoring

 

Docket #FIC 91-361                           Page 4

 

panel is an attempt to evade the intended discovery function of the monitoring panel and that the complainants are using the FOI Commission to breach the terms of the consent judgment.

 

            19.  The respondent further maintains that if the complainants desire access to the respondent's records, they should make a discovery request in district court.

 

            20.  It is found that the consent judgment does not set forth any process for discovery and that the respondent did not offer any additional evidence to demonstrate that the rights of the West v. Manson litigants would be affected by disclosure of the requested records.

 

            21.  It is concluded therefore that the records are not exempt from disclosure pursuant to 1-19b(b)(1), G.S.

 

            22.  The respondent further maintains that the requested records identified in paragraph 2a. and b., above, are exempt from disclosure under 1-19(b)(1), G.S.

 

            23.  Section 1-19(b)(1), G.S., exempts from disclosure "preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure."

 

            24.  The respondent claims that the nondisclosure of the records described in paragraph 2a. and b., above, clearly outweighs the public interest in disclosure because of the pending claims and litigation described above.

 

            25.  It is found that the mere reference to pending claims and litigation, without stating how disclosure of the requested records would affect the public interest with respect to such claims and litigation, is insufficient to establish the applicability of the 1-19(b)(1), G.S., exemption in this case.

 

            26.  The respondent also claims that the requested records are exempt from disclosure under 1-19(c)(1), G.S., because they were preliminary drafts of memoranda "prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency."

 

            27.  But even if the requested records were exempt under 1-19(b)(1), G.S., it is found that the exception cited by the respondent in paragraph 26, above, by its very terms, does not apply to a single-member public agency such as the respondent commissioner.

 

            28.  It is therefore concluded that the records described in paragraph 2a. and b., above, are not exempt from disclosure

 

Docket #FIC 91-361                           Page 5

 

under 1-19(b)(1) and (c)(1), G.S.

 

            29.  It is found that the respondent did not offer evidence to support the claim made by his counsel in his response to the complainants' October 17, 1991 request that the records are

exempt from disclosure pursuant to 1-19(b)(9), G.S.

 

            30.  It is also found with respect to the complainants' request in paragraph 2c., above, for a list by position of all CCIN employees who received furlough or layoff notices, that the respondent failed to prove that such a record is exempt from

disclosure pursuant to any provision of the FOI Act.

 

            31.  It is concluded that the respondent violated the provisions of 1-15 and 1-19(a), G.S., by failing to provide the complainants with copies of the requested records described in paragraph 2, above.

 

            32.  The Commission, in its discretion, declines to impose civil penalties upon the respondent.

 

            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 complainants with copies of the records described in paragraph 2 of the findings, above, for the 1991-1992 fiscal year.

 

            2.  In complying with paragraph 1 of this order, the respondent shall specifically provide the complainants with copies of:

 

                        a.  all records of the requests for funding amounts that were submitted by the various departments, facilities and programs within DOC to the respondent commissioner, as requested by the complainants; and

 

                        b.  all budget options that were identified as such because they were dependent on the level of funding actually received by the various departments, facilities and programs within DOC, requested by the complainants.

 

            3.  Henceforth the respondent shall strictly comply with the requirements of 1-15 and 1-19(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 1992.

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission

 

Docket #FIC 91-361                           Page 6

 

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:

JoNel Newman and Connecticut Civil Liberties Union Foundation

c/o Attorneys Martha Stone and JoNel Newman

Connecticut Civil Liberties Union Foundation

32 Grand Street

Hartford, CT 06106

 

Commissioner, State of Connecticut, Department of Correction

c/o Assistant Attorney General Margaret Quilter Chapple

MacKenzie Hall

110 Sherman Street

Hartford, CT 06105

 

                                                                 

                                    Debra L. Rembowski

                                    Acting Clerk of the Commission