FIC1999-593

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Terri Bailey,
		Complainant
	against		Docket #FIC 1999-593
Commissioner, State of Connecticut, Department of Children and Families; and State of Connecticut, Department of Children and Families,
		Respondents	May 24, 2000

The above-captioned matter was heard as a contested case on March 10, 2000, 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 §1-200(1), G.S. [§1-18a(1), G.S.].

2. It is found that, by letter dated November 30, 1999, the complainant requested that the respondents provide her with copies of the following records:

a) all records in which she is named;

b) all records pertaining to her pre-adoptive daughter [hereinafter “the minor child];

c) all expenses related to the minor child’s care, including medical care, foster care, psycho therapy/counseling; physical therapy; occupational therapy; speech therapy; private agencies/consultants; birth to 3 program; special need programs; cost of DCF staff time related to the minor child’s case; cost of DCF legal staff time; cost of judicial review process; and miscellaneous expenses.

It is found that such letter further specified the requests described above, and that such specified list of requested records comprised three pages.

3. It is found that the minor child is three years of age and in the care and custody of the respondent department. It is further found that the complainant is not the parent or guardian of such child.

4. By letter dated and filed with the Commission on December 14, 1999, the complainant alleged that the respondents violated the Freedom of Information (hereinafter "FOI") Act by failing to respond to the request described in paragraph 2, above.

5. Section 1-210(a), G.S. [formerly §1-19(a), G.S.], provides in relevant part that:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212

[Emphasis added.]

6. Section 1-212(a), G.S. [formerly §1-15(a), G.S.], provides in relevant part that:

[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with the [FOI] Act…shall not exceed twenty-five cents per page .…

7. It is found that, by letter dated December 17, 1999, the respondents acknowledged receipt of the request described in paragraph 2, above, and informed the complainant that the request would be reviewed and a response would be forthcoming as promptly as possible.

8. It is found that, by letter dated December 27, 1999, the respondents informed the complainant that they would provide all non-exempt records as soon as possible, but that, considering the number of requested records, compliance would take some time.

9. It is found that, at the hearing in this matter, the respondents provided the complainant with a letter dated March 9, 2000, by which they contended that the requested records pertain to child protection activities and are exempt from disclosure pursuant to §17a-28, G.S., with the possible exception of case narratives, an adoption study, and evaluations solely as they pertain to the complainant. It is also found that, by such letter, the respondents contended that educational records concerning the minor child were also protected from disclosure pursuant §1-210(b)(17), G.S. [formerly §1-19(b)(17), G.S.]. It is further found that, by such letter, the respondents informed the complainant that they do not create or keep records of the cost of staff on a particular case, that any expenses related to the minor child’s care are records reflecting child protection activities, and that such records were exempt from disclosure pursuant to §17a-28, G.S. Finally, it is found that, by such letter, and at no cost, the respondents provided the complainant with a set of records consisting of case narratives, an adoption study, and evaluations solely as they pertain to the complainant, and it is also found that such records contained redactions made pursuant to §17a-28, G.S.

10. It is found that to the extent records responsive to the complainant’s request exist, such records are public records within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.].

11. Section 17a-28(b), G.S., provides:

[n]otwithstanding the provisions of [the FOI Act], [information created or maintained in connection with the department (of Children and Families)’s child protection activities or activities related to a child while in the care or custody of the department] maintained by the department [of Children and Families] 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. Any unauthorized disclosure shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year, or both.

12. It is found that the requested records, as described in paragraphs 2.b and 2.c, above, are records created or maintained in connection with the respondents’ child protection activities or activities related to a child in the respondents’ care or custody within the meaning of §17a-28(b), G.S.

13. It is concluded, following long-standing and frequently affirmed Commission precedent, that §17a-28(b), G.S., creates rights of access to the respondents’ child protection records that are separate than those rights set forth in the FOI Act.

14. It is also concluded that §17a-28(b), G.S., controls the disclosure of the requested records, as described in paragraphs 2.b and 2.c, above.

15. It is therefore concluded that the Commission lacks jurisdiction to enforce the rights of access created by §17a-28, G.S., and is without jurisdiction to issue a ruling on the requests described in paragraphs 2.b and 2.c, above.

16. With respect to the request described in paragraph 2.a, above, it is found that records responsive to such request were provided to the complainant at the hearing in this matter, as described in paragraph 9, above. It is further found that the respondents’ provision of such records, more than three months after the request described in paragraph 2, above, was not prompt within the meaning of §1-210(a), G.S. [formerly §1-19(a), G.S.]

17. It is therefore concluded that the respondents violated the promptness provision of §1-210(a), G.S. [formerly §1-19(a), G.S.]

18. It is found that, at the hearing in this matter, the respondents stated that there are other records which they maintain or keep on file which may be responsive to the request described in paragraph 2a, above, but which the respondents had not yet reviewed to determine if such records were responsive, or if such records contain information exempt from disclosure pursuant to §17a-28(b), G.S., and/or §1-210(b)(17), G.S. [formerly §1-19(b)(17), G.S.] The respondents represented that they will review the remaining records, and will provide the complainant with any non-exempt portions thereof as soon as possible.

19. With respect to the respondents’ claim of exemption pursuant to §1-210(b)(17), G.S. [formerly §1-19(b)(17), G.S.], it is concluded that any “educational records” requested by the complainant consist of information created or maintained in connection with the respondents’ child protection activities or activities related to a child while in the care or custody of the respondents, within the meaning of §17a-28(b), G.S., and that, therefore, such records are outside the scope of the Commission’s jurisdiction. Accordingly, it is concluded that it is unnecessary to address the possible applicability of §1-210(b)(17), G.S. [formerly §1-19(b)(17), G.S.], to the requested records.

20. It is concluded that, to the extent records exist which are responsive to the request described in paragraph 2.a, above, and which are not records the disclosure of which is controlled by §17a-28(b), G.S., they must be provided to the complainant, absent the application of contrary federal law or state statute.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. If they have not already done so, the respondents shall forthwith provide the complainant with copies of all remaining non-exempt records responsive to her request at no cost.

2. If the disclosure of any of the records that have not yet been provided to the complainant, is controlled by §17a-28(b), G.S., the respondents shall forthwith convey such information to the complainant in writing.

3. Henceforth, the respondents shall comply with the promptness provision of §1-210(a), G.S. [formerly §1-19(a), G.S.]

Approved by Order of the Freedom of Information Commission at its regular meeting of May 24, 2000.

_________________________

Melanie R. Balfour

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:

Terri Bailey

288-13 Meridian Street

Groton, CT 06340

Commissioner, State of Connecticut, Department of Children and Families;

and State of Connecticut, Department of Children and Families

c/o Valerie B. Denyer

Principal Attorney

Department of Children and Families

395 West Main Street

Waterbury, CT 06702

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1999-593FD/mrb/05/25/00