FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Fran Silverman and The Hartford Courant,
Complainants
against Docket #FIC 94-277
State of Connecticut, Department of Children and Families,
Respondent June 28, 1995
The above-captioned matter was heard as a contested case on February 23, 1995, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
The following report modifies the prior report issued by the undersigned hearing officer in this matter on March 22, 1995.
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 the complainant, by letter dated June 9, 1994, requested from the respondent a copy of a) an investigation report prepared by the respondent concerning the Dormus Amoris home, (hereinafter "home"), which report resulted in the respondent's recommendation to revoke the licence of Nancy and Raymond Orsi who run the home, and b) any records of previous investigations conducted by the respondent regarding the home.
3. It is found that the complainant, by letter dated June 14, 1994, requested from the respondent access to inspect the licensing file of the home for the period the home has been licensed by the respondent, and information concerning funding received from the state by the home for the care of foster and adopted children.
4. It is found that on July 15, 1994 the respondent denied all but the funding information requested by the complainants, claiming that the records are exempt from disclosure pursuant to 1-19 and 17a-28, G.S.
5. Having failed to receive access to the requested records the complainants, by letter dated August 4, 1994 and filed with the Commission on August 12, 1994 appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying them access to the requested
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investigation records.
6. It is found that the Orsis and the home have been the subject of complaints, and follow-up investigation by the respondent, which complaints and investigation concern child abuse.
7. It is found that the respondent maintains records of investigation of complaints and licensing concerning the Orsis.
8. It is concluded that the requested investigation and licensing records are public records within the meaning of 1-19a(d) and 1-19(a), G.S.
9. The respondent contends that federal law and state statute exempt from disclosure all records which it maintains that concern the Orsis.
10. To support this contention, the respondent cites to the federal Child Abuse Prevention and Treatment Act, specifically 42 U.S.C. 5106a(b)(4), which requires the state to "provide for methods to preserve the confidentiality of all [child abuse] records in order to protect the rights of the child and the child's parents or guardians...."
11. In addition, the respondent cites to 42 U.S.C. 671 which conditions funding upon the existence of a plan approved by the Secretary of Health and Human Services that "provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the state plan."
12. The respondent also cites to 17a-28(b), G.S., which provides in relevant part:
Notwithstanding the provisions of [the FOI Act] records maintained by the department [DCF] shall be confidential and shall not be disclosed. Neither the Commissioner nor any of his employees shall disclose, in whole or in part, the nature or content of any records of any person to any individual, agency, corporation or organization without the consent of the person, his attorney or his authorized representative, except as provided in subsections (c) and (d) of this section.
13. Section 17a-28(a)(5), G.S., defines "records" described at 17a-28(b), G.S., to mean:
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... information created or obtained in connection with the department's child protection activities or activities related to a child while in the care or custody of the department, including information in the registry of reports to be maintained by the commissioner pursuant to subsection (g) of section 17a-101, provided records which are not created by the department are nor subject to disclosure, except as provided pursuant to subsection (c), (i) or (k) of this section. [Emphasis added.]
14. Section 17a-28(a)(1), G.S., defines "person" to mean:
(A) any individual named in a record, maintained by the department, who (i) is presently or at any prior time was a ward of or committed to the commissioner for any reason; or (ii) otherwise received services, voluntarily or involuntarily, from the department; (B) the parent of a person, as defined in subparagraph (A) of this subdivision, if such person is a minor; or (C) the authorized representative of a person, as defined in subparagraph (A) of this subdivision, if such person is deceased.
15. It is found that the investigation and licensing records at issue constitute "records" within the meaning of 17a-28(a)(5) and 17a-28(b), G.S.
16. The respondent contends further that the Orsis are "persons" who received "services" within the meaning of 17a-28(a)(1), G.S., and therefore, that the Orsis are protected persons under 17a-28(b), G.S., which provides for disclosure of records of "persons" only with their consent.
17. It is found that the Orsis received "services" from the respondent including case work and support services provided by social workers, moving services and referral services for psychiatric and other care.
18. It is concluded however, that "person" as defined in 17a-28(a)(1), G.S., refers to an individual who receives services as a child.
19. It is further concluded however, that the respondent did not violate 1-19(a), G.S., when it failed to provide access to the investigation and licensing records which records are protected from disclosure pursuant to 17a-28(a)(5) and 17a-28(b), G.S.
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20. In light of the conclusion reached in paragraph 19, above, it is not necessary to address the respondent's further claims of exemption.
The following order by the Commission is hereby recommended on the basis of the record in the above-captioned complaint:
1. The complaint is hereby dismissed.
2. The Commission notes that the very broad language of 17a-28(b) and 17a-28(a)(5), G.S., precludes its ordering disclosure in this case. The Commission notes its concern when records, such as the type at issue in this case, are barred from public disclosure, even when such records can be appropriately redacted to protect the privacy of the children and families concerned. In addition, such a broad legislative grant of confidentiality to the repondent serves to shield that department from public scrutiny and accountability with respect to its handling of investigations into allegations of child abuse and neglect. The Commission strongly urges swift legislative reform with respect to the provisions of 17a-28, et seq.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 28, 1995.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Fran Silverman and The Hartford Courant
c/o Ralph Elliot, Esq.
Tyler, Cooper & Alcorn
CityPlace, 35th Floor
Hartford, CT 06103-3488
State of Connecticut, Department of Children and Families
c/o Michael Besso, Esq.
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105
Elizabeth A. Leifert
Acting Clerk of the Commission