FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on May 7, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts 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), G.S.

 

2.  It is found that, by letter dated September 7, 2006, the complainant requested that the respondent provide him with copies of:

 

a)  records pertaining to the responsibilities of the Native American Religious Elder for the Connecticut Department of Correction (hereinafter “DOC”), including the contract;

 

b)  records pertaining to the dismissal of Mark Allen as Native American Religious Elder; and

 

c)  records pertaining to Native American Religious Services. 

 

The complainant requested a waiver of copying fees.

 

3.  It is found that, by letter dated September 18, 2007, the respondent acknowledged receipt of the requested records described in paragraph 2, above, and informed the complainant that, in the event he did not have sufficient funds in his inmate account, such account would be debited for any copies provided. 

 

4.  It is found that, under cover letter dated October 2, 2006, the respondent provided the complainant with copies of records responsive to the requests described in paragraph 2.a and 2.c, above.  It is further found that the respondent informed the complainant that records responsive to his request as described in paragraph 2.b, above, were not available at such time and that he would be notified when they were available.  The respondent informed the complainant that the fee for the provided records was $1.75, and that, if he did not forward a check in that amount to the respondent, his inmate account would be debited.

 

5.  It is found that, by letter dated October 10, 2006, the respondent informed Mark Allen that the complainant had requested “a copy of the Security Division Investigation on you,”  pursuant to §1-214(b), G.S.

 

6.  By letter dated October 6, 2006, and filed with the Commission on October 13, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of all requested records and by denying his request for fee waiver.  The complainant requested the imposition of a civil penalty against the respondent. 

 

7.  At the outset of the hearing in this matter, the complainant stated that he did not wish to pursue the fee waiver allegation in this contested case because the Commission was addressing the issue of fee waiver in a separate contested case.  Accordingly, such allegation shall not be further addressed herein. 

 

8.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

9.  Section 1-210(a), G.S., provides 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.

 

10.  Section 1-212(a)(1), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

11.  With respect to the request described in paragraph 2.a, above, it is found that the respondent has provided the complainant with all requested records which she keeps on file that are responsive to such request.  It is further found that, at the time of the request, the Native American Religious Elder did not have a contract with DOC, but rather was a full time staff member.  At the hearing in this matter, the respondent informed the Commission, that a week prior to the hearing in this matter, the respondent did execute a contract with an individual for services as a Native American Religious Elder.  It is found that such contract is outside the scope of the request in this matter; however, the respondent pledged to provide such new contract to the complainant. 

 

12.  It is concluded that the respondent did not violate the FOI Act, as alleged in the complaint, with respect to the request described in paragraph 2.a, above.

 

13.  With respect to the request described in paragraph 2.b, above, at the hearing in this matter, the respondent stated that she was not claiming exemption pursuant to the exemption for personnel records, §1-210(b)(2), G.S.  Rather, the respondent first, neither confirmed nor denied that such records exist, and second, contended that if such records do exist, they are exempt from mandatory disclosure pursuant to §1-210(b)(18), G.S.

 

14.  It is found that the record described in paragraph 5, above, is the record described in paragraph 2.b, above.  It is further found that such record is kept on file or maintained by the respondent.  Accordingly, it is concluded that such record is a public record within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.  At the hearing in this matter, the complainant testified that he no longer was interested in the entire investigation and that such record could be redacted in its entirety, with the exception of that portion of the record which indicates the reason for the dismissal of Mr. Allen.  Accordingly, with respect to paragraph 2.b, above, only that portion of the record of the investigation is at issue in this matter. 

 

15.  Section 1-210(c), G.S., provides:

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility.

16.  Section 1-210(b)(18), G.S., provides that disclosure is not required of:

     Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

      (A) Security manuals, including emergency plans contained or referred to in such security manuals;

      (B) Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

      (C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

      (D) Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

      (E) Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

      (F) Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

      (G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

      (H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers.

17.  It is found that, at the time of the hearing in this matter, Mr. Allen was dismissed from the DOC, but had filed a grievance, and that, in such pending grievance, the arbitrator did have authority to reinstate him to state service.  

 

18.  It is found that the portion of the record at issue, as described in paragraph 14, above, is not specifically among the list of records enumerated by §1-210(b)(18), G.S.

 

19.  The Commission is sensitive to the need for accountability of public employees in the performance of their duties.  In this regard, the Commission notes that it has repeatedly held, and the courts have repeatedly affirmed, that disciplinary records of public employees are generally not exempt from disclosure to the general public.  Certainly, the reason for the dismissal of a public employee should ordinarily be available to the general public that employs him. 

 

20.  It is found that the respondent failed to prove that there are reasonable grounds to believe that disclosure to an inmate of a record stating the reason that Mr. Allen was dismissed may result in a risk of harm, including a risk of disorder in a correctional institution, and thus failed to prove that the record described in paragraph 14, above, is exempt under §1-210(b)(18), G.S. 

 

21.  It is therefore concluded that the respondent violated §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the record described in paragraph 14, above, to the complainant.

 

22.  With respect to the request described in paragraph 2.c, above , it is found that the respondent has provided the complainant with all requested records which she keeps on file that are responsive to such request.  It is found that records, which the complainant contends were not produced, such as records on sweat lodge procedures and on allocation of religious items, do not exist. 

 

23.  It is concluded that the respondent did not violate the FOI Act, as alleged in the complaint, with respect to the request described in paragraph 2.c, above.

 

24.  The Commission declines to consider the imposition of a civil penalty in this matter.

 

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

 

            1.  Forthwith, the respondent shall provide the complainant with a copy of the record described in paragraph 14 of the findings, above, free of charge. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 26, 2007.

 

 

________________________________

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:

 

Richard Quint, #123433

Northern Correctional Institution

100 Bilton Road

Somers, CT 06071

 

Theresa Lantz, Commissioner,

State of Connecticut,

Department of Correction

c/o Sandra A. Sharr, Esq.

Director, Legal Affairs Unit

State of Connecticut

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2006-537FD/paj/10/10/2007