FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

By motion dated September 26, 2005, and filed with the Freedom of Information Commission (“Commission” or sometimes “FOIC”) on September 29, 2005, the respondent moved to dismiss the above captioned matter. It claimed that the “complaint fails to state a claim”, because the provisions of §19a-411, G.S., establish that the requested records, described at paragraph 2, below, “are not subject to disclosure under … the Freedom of Information Act” (“FOIA”). The hearing officer denied this motion on October 4, 2005.   

 

The above-captioned matter was heard as a contested case on October 27, 2005, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford, Corrected Order dated January 27, 2004 (Sheldon, J.).

 

 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 §1-200(1)(A), G.S.

 

2.  It is found that, by letter dated July 12, 2005, which included an attached application form, the complainant made a request to the respondent for “all records of M.E. case # 94-02234, more specifically a copy of the full and complete records of the findings of the investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and microbiologic examinations and the conclusions drawn therefrom” (all together, the “requested records” or the “records”). The complainant also stated : “I am an interested party and I am requesting the records for research purpose (sic)”. 

 

3.  By letter to the complainant, dated July 18, 2005, the respondent acknowledged the request and stated: “we must have permission from the Office of the State’s Attorney to release the records to you”. By a second acknowledgement letter to the complainant, dated July 20, 2005, the respondent also stated: “records of the Office of the Chief Medical Examiner do not come under the FOI Act and are not available to the public”.

 

4.  By letter dated August 1, 2005, and filed with the Commission on August 4, 2005, the complainant appealed to the Commission, alleging that the respondent’s failure to provide the requested records violated the FOIA.

 

5.  At the hearing, the complainant testified, reaffirming his view that he is an interested party, making his request for “research purposes”. He also stated that he currently has an attorney in a pending habeas corpus proceeding, and that the records he seeks have previously been made public in the court proceedings that resulted in his conviction.

 

6.      Section 1-210(a), G.S., states in relevant part:

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. (emphasis added)

 

7.  Section 1-212(a), G.S., states in relevant part:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

8.  Section 19a-411(b), G.S., states in relevant part:

 

(b) The report of examinations conducted by the Chief Medical Examiner, Deputy Chief Medical Examiner, an associate medical examiner or an authorized assistant medical examiner, and of the autopsy and other scientific findings may be made available to the public only through the Office of the Chief Medical Examiner and in accordance with this section, section 1-210 and the regulations of the commission [Commission on Medicolegal Investigations]. Any person may obtain copies of such records upon such conditions and payment of such fees as may be prescribed by the commission, except that no person with a legitimate interest in the records shall be denied access to such records…. (emphasis added)

 

9.  Section 19a-401-12 of the Regulations of Connecticut State Agencies states in relevant part:

 

(c)(1) If the requester of the records is a public authority,

professional, medical, legal or scientific body or university or similar research body, seeking access to records for scientific or research purposes, access to the records is in the discretion of the commission.

….

 

(e) …. Requests by attorneys, insurance claims agents or other interested parties, other than the next of kin or persons acting on behalf of the next of kin, should state reasons for which records are required.

 

(f) Upon receipt of request from defense counsel of record in a

criminal case for copies of reports in said case, the Chief Medical Examiner shall promptly notify the Office of the State's Attorney which has jurisdiction of such request and shall release without charge therefor, within seven working days, to the defense attorney such copies as requested unless the Chief Medical Examiner is notified within said period of time that an application limiting disclosure has been made by the State's Attorney pursuant to provisions of Section 19a-411 of the

Connecticut General Statutes. The Chief Medical Examiner shall not release the records in a criminal case to anyone else requesting them until such time as the State's Attorney has indicated in writing no objection.

 

….

 

(h) The records of the Office of the Medical Examiner may also contain copies of records of hospitalization, reports of police investigation, coroner's findings and copies of certificates of death. These records are subject to the Freedom of Information Act, as defined in section 1-200 of the Connecticut General Statutes. (emphasis added)

 

10.  It is concluded that the requested records constitute records of the Chief Medical Examiner, within the meaning of §19a-411, G.S. 

 

11.  In Galvin v. FOIC, 201 Conn. 448 (1986) (hereinafter “Galvin”), the Supreme Court determined that §19a-411, G.S., is a state statute that falls within the “[e]xcept as otherwise provided” exception to §1-19, G.S., [now §1-210(a), G.S.].  Galvin at 462.  In reconciling the statutes and system of regulations set forth at paragraphs 6 through 9, above, Galvin held in relevant part:

 

Accordingly, we conclude that § 19a-411 incorporates only those provisions of § 1-19 [currently re-codified at 1-210(a), G.S.] that are not inconsistent with the former statute's restrictions on disclosure. …. We reiterate that the statute, considered in its entirety, conditions the right to disclosure on compliance with all relevant administrative regulations and other requirements. Accordingly, we construe the provision at issue [§ 1-210(a), G.S.] to apply only when disclosure is sought to be denied to a party who otherwise complies with the conditions imposed by § 19a-411, including the administrative regulations to which the statute refers. (emphasis added)

 

Id. at 459-460.  

 

12.  It is therefore concluded that the Court in Galvin construed the reference to §1-19, G.S. [now §1-210(a), G.S.] contained within §19a-411, G.S., and determined that §1-19, G.S. [now §1-210(a), G.S.] applies only when disclosure is sought to be denied to a party who otherwise complies with the conditions imposed by §19a-411, G.S., including the administrative regulations to which §19a-411, G.S., refers.

 

13.  It is found, based upon the testimony of the complainant, that he currently has an attorney representing him in a pending habeas corpus proceeding.

 

14.  It is also found that the complainant has served twelve years of what he described as a “lengthy sentence” of incarceration, and has an interest in his liberty. However, the complainant is not a defense counsel of record in a criminal case. 

 

15.  It is found that the complainant did not present any credentials establishing that he is acting on behalf of  “a public authority, professional, medical, legal or scientific body or university or similar research body”, as those terms are utilized by §19a-401-12(c)(1) of the Regulations of Connecticut State Agencies.

 

16.  It is finally found that, on two separate occasions, on August 30, 2002 and again in July 2005, the State’s Attorney for the Judicial District of Fairfield, responded in writing to an inquiry from the respondent, stating that the requested records “should not be released until further notification is received from our office”.

 

17.  It is concluded, based upon the findings at paragraph 14, above, that the complainant is an “interested part[y]”, as that term is utilized by §19a-401-12(e) of the Regulations of Connecticut State Agencies. Therefore, the complainant is qualified within the relevant regulations to request records from the respondent.

 

18.  It is concluded that, because the complainant is not a research organization, as found at paragraph 15, above, he is not entitled to the rights set forth at §19a-401-12(c)(1) of the Regulations of Connecticut State Agencies.

 

19.  It is concluded that, because the complainant is someone other than “defense counsel of record”, as found at paragraph 14, above, he is not entitled to the rights of defense counsel set forth at §19a-401-12(f) of the Regulations of Connecticut State Agencies. Moreover, it is irrelevant to the issue of whether the requested records are now subject to disclosure under the FOIA that such records have or have not previously been made public in the court proceedings that resulted in the complainant’s conviction.   

 

20.  It is concluded that the requested records are “records in a criminal case”, as that term is utilized by §19a-401-12(f) of the Regulations of Connecticut State Agencies.

 

21.  Based upon the finding of two written objections by the State’s Attorney in paragraph 16, above, it is concluded that disclosure of the requested records to the complainant would have violated §19a-401-12(f) of the Regulations of Connecticut State Agencies.   

 

22.  It is concluded that, given the emphasis in Galvin on compliance with administrative regulations, that the respondent did not violate the requirements of §1-210(a), G.S., when it declined to provide the requested records to the complainant.   

 

            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 January 25, 2006.

 

________________________________

Petrea A. Jones

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:

 

John Vivo III, #204103

Cheshire Correctional Institution

900 Highland Avenue

Cheshire, CT 06410

 

State of Connecticut,

Office of the Chief Medical Examiner

c/o Rosemary M. McGovern, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-380FD/paj/2/2/2006