FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Michael J. Fadus,

 

Complainant

 

 

against

 Docket #FIC 2000-297

James D. McGaughey, Director, State of
Connecticut, Office of Protection and
Advocacy for Persons with Disabilities; and
State of Connecticut, Office of Protection and
Advocacy for Persons with Disabilities,

 

 

Respondents

September 13, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on July 12, 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.

 

2.      By letter dated May 26, 2000 to the respondent director, the complainant made a request for “any and all documents, including but not limited to investigative notes, reports, letters, e-mail messages, memoranda, opinions, reprimands, or other information . . . related to incidents by staff persons of The Arc/CT and/or other contractors or appointees of the Office of Protection and Advocacy at Harkness Memorial State Park during the summer of 1998 regarding certain ‘enriching’ activities such as bringing the mentally retarded to strip joints, and incidents of assault(s) that occurred during or about the same time.”

 

3.      By letter dated May 30, 2000 to the complainant, the respondents, through counsel, responded to the complainant’s May 26, 2000 request by informing him that the records he sought were part of an investigation pursuant to §§46a-11a through 46-11g, G.S., and were exempt from disclosure pursuant to §46a-11c(c), G.S.

 

4.      By letter dated and filed on June 14, 2000, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his request and requesting the imposition of a civil penalty.

 

5.      Section 1-210(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 receive a copy of such records in accordance with the provisions of section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void.” 

 

6.      Section 1-212(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 . . . .”

 

7.      It is found that during the summer of 1998 the respondent office conducted an investigation after receiving a report that a person or persons with mental retardation were allegedly abused or neglected and, pursuant to §46a-11c(a), G.S., conducted an evaluation and made recommendations regarding the allegations.

 

8.      The respondents maintain that the requested records constitute the original report and the evaluation report of the investigator and pursuant to §46a-11c(c), G.S., they are not public records for purposes of §1-210, G.S.  The respondents also maintain that all of the documents collected by the investigator during the investigation, including any police reports, constitute part of the investigator’s findings and are included in the evaluation report. 

 

9.      Section 46a-11c(a), G.S., provides in relevant part that:

 

“The director, upon receiving a report that a person with mental retardation allegedly is being or has been abused or neglected, shall make an initial determination whether such a person has mental retardation, shall determine if the report warrants investigation and shall cause, in cases that so warrant, a prompt, thorough evaluation to made to determine whether the person has mental retardation and has been abused or neglected.  For purposes of section 46a-11a to 46-11g, inclusive, the determination of mental retardation may be made by means of a review of records . . . The evaluation shall include a visit to the named person with mental retardation and consultation with those individuals having knowledge of the facts of the particular case.  All state, local and private agencies shall have a duty to cooperate with any investigation conducted by the Office of Protection and Advocacy for Persons with Disabilities under this section, including the release of complete client records for review, inspection and copying, except where the person with mental retardation refuses to permit his record to be released.  The director shall have subpoena powers to compel any information related to his investigation.  All client records shall be kept confidential by said office.”

 

10.     Section 46a-11c(c), G.S., provides in relevant part that “neither the original report nor the evaluation report of the investigator which includes findings and recommendations shall be deemed a public record for purposes of section 1-210 . . . .”

 

11.     The complainant maintains that the respondent should have at least provided him with a copy of the police report regarding the incident because the police report was not created by the respondents’ investigator and could not constitute the investigator’s findings.  The complainant further maintains that a record called “special concerns report” should have been provided to him as well because that record was not created by the investigator either.

 

12.      It is concluded that §46a-11c, G.S., does not limit the contents of an evaluation report to the findings and recommendations of an investigator nor does it require every document to be the original creation of the investigator.

 

13.  It is found that the records maintained by the respondents that are responsive to the complainant’s request constitute either the original report or the evaluation report of the investigator, and as such are not public records for purposes of §1-210, G.S.

 

14.     It is found that the police report described in paragraph 11, above, is part of the evaluation report within the meaning of §46a-11c, G.S.

 

15.     It is found that there is no “special concerns report” contained in the file regarding the matter described in paragraph 2, above.

 

16.     It is concluded, therefore, that the respondents did not violate §1-210(a), G.S., by denying the complainant’s records request of May 26, 2000.

 

 

 

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.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 13, 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:

 

 

Michael J. Fadus

Eight Broad Street, Unit 82

Meriden, CT  06450

 

 

James D. McGaughey, Director, State of Connecticut, Office of Protection and

Advocacy for Persons with Disabilities; and State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities

c/o Atty. Susan Quinn Cobb

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT  06141-0120

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

 

 

FIC2000-297FD/mrb/09/15/00