FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a complaint by Final
Decision
Tammy Canna,
Complainant
against Docket
#FIC 1995-402
Michael Steers, Program Supervisor for
Investigations, State of Connecticut
Department of Children and Families,
Respondent September
25, 1996
The
above-captioned matter was heard as a contested case on April 11, 1996, at
which time the complainant appeared to present testimony, exhibits and argument
on the complaint, but the respondent failed to appear. Thereafter the matter was reopened for
hearing on August 2, 1996, to determine why civil penalties should not be
assessed against the respondent. Prior
to the hearing scheduled for August 2, 1996, the respondent moved to reopen the
matter on the merits, which motion was granted by the Commission at its meeting
of July 24, 1996. At the August 2, 1996
hearing, the case caption was changed
to correctly identify the respondent and his title. Also at that time, the complainant and the respondent appeared
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 in August, 1995, the
complainant made allegations of child abuse against the director of the Julia
Day Nursery & Kindergarten (“Julia Day”) to the daycare licensing unit of
the state department of health.
3. It is found that in September, 1995, the
matter identified in paragraph 2, above, was referred by the department of
health to the respondent for investigation.
4. It is found that by letter dated October 20,
1995, the complainant requested of the respondent all documents concerning or
involving Julia Day and/or its staff, including its licensing, complaints
involving said school/day care center and/or its staff, and any investigation
of such complaints.
5. It is found that by letter dated October 26,
1995, the respondent denied the complainant’s request contending that §17a-28(b),
G.S., exempts the records from disclosure.
6. By letter of complaint filed with this
Commission on November 24, 1995, the complainant alleged that the respondent
violated the provisions of the Freedom of Information (“FOI”) Act by denying
her request on October 26, 1995.
7. After the April 11, 1996 hearing at which
the respondent failed to appear, the undersigned hearing officer issued an
order to the respondent to deliver the records identified in paragraph 4,
above, for an in camera inspection no later than April 29, 1996 (“the order”).
8. It is found that on April 15, 1996, the
respondent’s agency signed for and received the order.
9. It is further found that the respondent
failed to comply with the order and that his excuse that the order was
addressed to the “director of investigations” rather than the “program
supervisor for investigations” is feeble and inadequate for such failure.
10..It
is further found that the respondent’s subsequent provision of the in camera
records is insufficient to excuse the respondent’s failure to comply with the
order for production no later than April 29, 1996.
11. It is found that the records identified in
paragraph 4, above, and submitted for in camera inspection are public records
within the meaning of §1-18a(d),
G.S.
12. Section 17a-28(b), G.S., provides in
pertinent part:
Notwithstanding
the provisions of section[s] 1-19, 1-19a or 1-19b[G.S.],
records maintained by
the department [of children and families] shall be confidential and shall not
be disclosed. … [Emphasis added].
13. Section 17a-28(a)(5), G.S., defines the
“records” that shall not be disclosed under §17a-28(b)
G.S., as those records that contain:
… 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
not subject to disclosure, except as provided pursuant to subsections ( c), (i)
or (k) of this section. [Emphasis added].
14. Furthermore, §17a-101(g),
G.S., provides in pertinent part:
The
commissioner of children and families shall maintain a registry
of
the reports received pursuant to this section and shall adopt
regulations
to permit the use of the registry on a twenty-four hour
daily
basis to prevent or discover abuse of children. The information
contained
in the 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].
15. It is found that the records at issue were
created or obtained in connection with the respondent’s child protection
activities within the meaning of §17a-28(a)(5),
G.S.
16. It is also found that the records at issue
relate to a report of child abuse on the part of the director of Julia Day
within the meaning of §17a-101(g),
G.S.
17. The complainant claims that §17a-28(d)(7),
G.S., creates certain limited rights of access to persons mandated to report
child abuse.
18. The Commission notes that it is without
jurisdiction to enforce special rights of access outside of those contained
within the provisions of the FOI Act.
19. It is concluded that the respondent did not
violate §1-19(a),
G.S., by denying the complainant’s request for records identified in paragraph
4, above, under the facts of this case.
20. The Commission notes that the hearing into
this matter was originally reopened on August 2, 1996, for a consideration of
why civil penalties should not be imposed on the respondent.
21. Section 1-21i(b)(2), G.S., provides in
pertinent part:
… upon the finding that
a denial of any right created by sections 1-15, 1-18a, 1-19 to 1-19b,
inclusive, and 1-21 to 1-21k, inclusive, was without reasonable grounds
and after the custodian or other official directly responsible for the
denial has been given an opportunity to be heard … the commission may, in
its discretion, impose against the custodian or other official a civil penalty
of not less than twenty dollars nor more than one thousand dollars. [Emphasis added].
22. It is concluded that because the Commission
did not find that a denial of any right created by the pertinent sections
referenced in paragraph 21, above, occurred under the facts of this case, this
Commission is without statutory authority to impose a civil penalty against the
respondent.
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 to
dismiss the complaint in this matter, it is greatly distressed by the
respondent’s failure to comply with the Commission’s order during the pendency
of this case, as described in paragraphs 7 through 10 of the findings,
above. The Commission warns the
respondent that future failures to comply with orders of this Commission will
lead it to seek the imposition of maximum civil and criminal sanctions against
him as permitted under law.
3. The findings of fact, conclusions of law and
orders entered concerning contested case docket #FIC 1995-402 and approved on
June 26, 1996, are superseded by those findings of fact, conclusions of law and
orders contained herein.
Approved by Order of the Freedom of Information
Commission at its regular meeting of September 25, 1996.
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
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:
Tammy Canna
c/o Donna Decker Morris, Esq.
Susman, Duffy & Segaloff, P.C.
55 Whitney Avenue
P.O. Box 1684
New Haven, CT 06510-1300
Michael Steers, Program Supervisor for
Investigations, State of Connecticut Department of Children and Families,
c/o
Kathryn Mobley, Esq.
Assistant Attorney General
MacKenzie Hall
110 Sherman Street
Hartford, CT 06105-2294
__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission