FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on April 30, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondent submitted the records described in paragraph 15, below, for an in camera inspection.  The records have been designated as IC 2006-655-1 through 2006-655-57.

 

            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.  By letter of complaint filed December 11, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for public records.

 

3.  For purposes of background, the following facts are set forth below.

 

4.  It is found that, approximately one week after his transfer to Corrigan Correctional Institution, the complainant, by surreptitiously passing a note to a correctional officer, reported that he had been raped by another inmate, and sought the officer’s assistance.

 

5.  It is found that the rape was alleged to have occurred after midnight, and that no one is known to have witnessed the incident other than the complainant and his alleged assailant.

 

6.  It is found that, in response to the complainant’s request for help, correction officers removed the complainant from his cell and transported him to Farmington Medical Center, where a sexual assault evidence collection kit was administered and the complainant was medically treated.

 

7.  It is found that, following his return to the correctional facility, the Department of Correction (“DOC”) placed that complainant in segregation, and subsequently moved him to a different correctional facility.

 

8.  It is found that the respondent investigated the allegation of rape by interviewing the suspect,  reviewing the “special management profiles” of both inmates, investigating the scene by taking photographs and conducting a survey of the room, collecting evidence from the room, interviewing the complainant at Farmington Medical Center, taking a statement from the officer who was given the note, and collecting the sexual assault evidence kit.

 

9.  It is found that the complainant believed, based on what he was told by state police at the hospital, that his allegation of rape reduced to a “he said, he said situation,” and that his allegation would not be prosecuted by the state’s attorney’s office.  It is found that the complainant then agreed not to further pursue his criminal complaint.

 

            10.  It is found that the complainant made a written request on September 21, 2006 to the respondent for a copy of the investigation report and copies of all associated documents in case file number CFS 0600242851, the case in which he had alleged that he was a victim while incarcerated of the above sexual assault.

 

11.  It is found that, ten weeks later, the respondent, by letter dated December 1, 2006, denied the request on the grounds that the report was not disclosable pursuant to §1-210(b)(3)(B), G.S.

 

12.  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.

 

13.  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.

 

14. 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.”

 

15.  It is found that the in camera records comprise records of an investigation into the alleged rape of the complainant, consisting of the following:

 

2006-655-1 through 3: Department of Public Safety (“DPS”) investigation report dated 7/28/06;

2006-655-4: DPS witness statement of correction officer;

2006-655-5 and 6: DPS witness statement of victim;

2006-655-7: DOC Special management profile of victim

2006-655-8: Untitled DOC data concerning victim;

2006-655-9: DOC location transfer data concerning victim;

2006-655-10: DOC disciplinary history of victim;

2006-655-11: DOC risk and needs data of victim;

2006-655-12; DOC risk history of victim;

2006-655-13: DOC special management profile of suspect;

2006-655-14: DOC untitled data concerning suspect;

2006-655-15: DOC location transfer data concerning suspect;

2006-655-16: DOC disciplinary history of suspect;

2006-655-17: DOC risk and needs data concerning suspect;

2006-655-18: DOC risk history of suspect

2006-655-19: NCIC sexual offender registry information;

2006-655-20: DOC incident report dated 7/22/06

2006-655-21 and 22: DOC inmate interview with victim;

2006-655-23 and 24: DPS photography report;

2006-655-25 and 26: DPS evidence report;

2006-655-27: DPS digital photography report

2006-655-28 and 29: signed witness statement of victim [duplicate of 2006-655-5 and 6];

2006-655-30: DPS investigation report concerning suspect statement

2006-655-31 through 36: signed witness statement of suspect;

2006-655-37 through 40: inventory of property seized by DPS;

2006-655-41: page 4 of “patient [victim] file”;

2006-655-42: University of Connecticut Health Center Police Department possessed property receipt for release of property to DPS;

2006-655-43: photo array;

2006-655-44 through 51: Court orders concerning the disposition of physical evidence dated 9/26/06

2006-655-52: Letter from evidence officer to state’s attorney’s office concerning disposition of physical evidence, dated 7/31/06;

2006-655-53: Notice and waiver of rights by suspect;

2006-655-54 through 56: untitled DOC data concerning complainant; and

2006-655-57: DPS data sheet for film submitted.

 

16.  It is found that the requested records are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

 

17.  The respondent contends that the requested records are exempt from disclosure pursuant to §1-210(b)(3)(G), G.S., which provides that disclosure is not required of “uncorroborated allegations subject to destruction pursuant to section 1-216.”

 

18.  Section 1-216, G.S., provides in relevant part:

 

Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records. 

 

19.  Specifically, the respondent contends that, although sexual intercourse between the complainant and his alleged assailant was corroborated, the fact that the alleged assailant claims that the sex was consensual means that there is no corroboration that a crime occurred.   In this regard, the respondent points out that consensual sex between inmates is not a crime.

 

20.  The respondent also contends that the complainant’s failure to cooperate with further prosecution foreclosed the respondent’s opportunity to obtain additional evidence that might have corroborated the allegation of sexual assault. 

 

21.  It is found, however, that the respondent suggested no further evidence that it intended to pursue, had the complainant continued to cooperate.

 

22.  It is also found that the complainant’s disinclination to cooperate was based on the representations made to him by the respondent that his case could not be prosecuted.

 

23.  It is also found that the respondent had collected physical evidence in the form of a rape kit, but not only did not pursue this evidence, but actively sought and obtained its destruction a mere two months after the alleged assault.

 

24.  In essence, the respondent’s argument is that sex between inmates is presumptively consensual, that any denial of force by the alleged assailant is sufficient to establish a lack of any corroboration that a crime occurred, and the purported absence of corroborating evidence is due to the complainant’s lack of cooperation after he made his initial complaint.

 

25.  The Commission has previously observed that “corroborate” means "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence,"  "to state facts tending to produce confidence in the truth of a statement made by another,"  "to give increased support to; make more sure or evident."  Hartford Courant et al. v. Department of Public Safety, Docket #FIC 1994-291.  See also State v. McClendon, 199 Conn. 5, 9 (1985) (corroborating evidence is “evidence supplementary to that already given and tending to strengthen or confirm it”).

 

26.  It is found that all of the following unchallenged facts on the record of this case corroborate the complainant’s allegation of rape, even if these facts do not rise to the level of establishing probable cause:

 

a.       The suspect actually admitted sexual intercourse with the victim;

b.      The victim and his alleged assailant were confined together in a cell in a correctional institution;

c.       No prior relationship between the suspect and victim supports a theory that the sex was consensual; in fact, the victim had arrived at Corrigan Correctional Institution only about a week before;

d.      When questioned about his involvement, the suspect began by denying that sex occurred, and then blamed the victim (in camera record 2006-655-30);

e.       The sexual offender registry history of the suspect (in camera record 2006-655-19).

f.        The victim, in addition to his written statement in support of his allegation, exhibited conduct consistent with his allegation by passing a note to a correction officer seeking help;

g.       The victim was treated at Farmington Medical Center for a sexual assault;

h.       Rape kit evidence was collected from the victim.  The Commission takes administrative notice of the fact that the purpose of a rape kit is to collect evidence of a sexual assault.  See, e.g., State v. Slater, 98 Conn. App. 288, 291 (2006) (a rape kit “is used to gather evidence from the victim of a sexual assault”);

i.         Although the victim declined to pursue his allegation after being advised that it was not prosecutable, he never recanted his story, and his current attempt to obtain the records is consistent with a theory that an assault occurred; and

j.        The victim was subsequently segregated from his alleged assailant, apparently for his protection, and moved to another institution.

 

27.  The respondent’s decision whether to pursue its investigation or seek prosecution is clearly a matter that rests in its sound discretion.  But given the evidence concerning the complainant’s underlying allegation of a sexual assault, it is concluded that only the most cynical observer would conclude that all the evidence established the sex was consensual and there was no corroboration of a crime.  The respondent’s determination of lack of corroboration was based solely on the suspect’s claim that the sex was consensual, and the respondent’s ability to persuade the victim that the assault could not be prosecuted.  If the respondent’s analysis of the lack of corroboration were correct, then all records of any unwitnessed sexual assault could routinely be destroyed as uncorroborated, so long as the suspect simply claimed consent.

 

28.  It is also concluded that the Commission’s construction of §1-210(b)(3)(G), G.S., to take into account corroborating evidence that has been discounted or disregarded by the respondent is consistent with the policy of our Supreme Court to narrowly construe exceptions to the Freedom of Information Act. Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188 (1984).

 

29.  It is concluded that the requested records are not exempt from disclosure pursuant to §1-210(b)(3)(G), G.S.

 

30.  The respondent also contends that the name and address of the victim of a sexual assault, as contained in the in camera records, is exempt from disclosure pursuant to §54-86e, G.S.

 

31.  Section 54-86e, G.S., provides:

 

The name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof, and such other identifying information pertaining to such victim as determined by the court, shall be confidential and shall be disclosed only upon order of the Superior Court, except that (1) such information shall be available to the accused in the same manner and time as such information is available to persons accused of other criminal offenses, and (2) if a protective order is issued in a prosecution under any of said sections, the name and address of the victim, in addition to the information contained in and concerning the issuance of such order, shall be entered in the registry of protective orders pursuant to section 51-5c.

 

32.  Apart from the irony of the respondent claiming both that no evidence corroborates the victim’s allegation of a sexual assault and that the complainant is a victim of a sexual assault, it is found that the respondent failed to prove that any individual was the victim of the crime of sexual assault, or injury or risk of injury, or impairing of morals, or of an attempt thereof.

 

33.  It is therefore concluded that no names or addresses within the requested records are exempt from disclosure pursuant to §54-86e, G.S.

 

34.  The respondent also contends that pages IC 2006-655-4 through 6, IC 2006-655-28 and 29, and IC 2006-655-31 through 36 are exempt from disclosure as “signed statements of witnesses,” pursuant to §1-210(b)(3)(B), G.S.

 

35.  It is found that in camera record IC 2006-655-4 is the signed witness statement of a correction officer, that IC 2006-655-5 and 6 is the signed witness statement of the victim, that IC 2006-655-28 and 29 is a duplicate copy of 2006-655-5 and 6, and that IC 2006-655-31 through 36 is the signed witness statement of the suspect.

 

36.  It is concluded that the records described in paragraphs 34 and 35, above, are permissibly exempt from disclosure pursuant to §1-210(b)(3)(B), G.S.

 

37.  The respondent also contends that the Commissioner of Correction has reasonable grounds to believe that disclosure of in camera records IC 2006-655-7 and 8, and IC 2006-655-54 through 56 may result in a risk of harm, including a risk of disorder in a correctional institution, and thus that these records are exempt from disclosure pursuant to §1-210(b)(18), G.S.

 

38.  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;

39.  It is found that the respondent failed to prove that the Commissioner of Correction has reasonable grounds to believe that disclosure of the records described in paragraph 37, above, may result in a safety risk.

 

40.  It is concluded that the records described in paragraph 37, above, are not exempt from disclosure pursuant to §1-210(b)(18), G.S.

 

41.  The respondent also contends that in camera records IC 2006-655-23 through 30 are exempt from disclosure pursuant to §14-10(c), G.S., as personal information maintained by the Department of Motor Vehicles.

 

42.   Section 14-10(c), G.S., provides:

 

All records of the Department of Motor Vehicles pertaining to the application for registration, and the registration, of motor vehicles of the current or previous three years shall be maintained by the commissioner at the main office of the department. Any such records over three years old may be destroyed at the discretion of the commissioner. (2) Before disclosing personal information pertaining to an applicant or registrant from such motor vehicle records or allowing the inspection of any such record containing such personal information in the course of any transaction conducted at such main office, the commissioner shall ascertain whether such disclosure is authorized under subsection (f) of this section, and require the person or entity making the request to (A) complete an application that shall be on a form prescribed by the commissioner, and (B) provide two forms of acceptable identification. … The commissioner may disclose such personal information or permit the inspection of such record containing such information only if such disclosure is authorized under subsection (f) of this section.

 

43.  It is found that the records described in paragraph 41, above, are not records of the Department of Motor Vehicles pertaining to registration, within the meaning of §14-10(c), G.S.

 

44.  It is concluded that the records described in paragraph 41, above, are not exempt from disclosure pursuant to §14-10(c), G.S.

 

45.  The respondent also contends that the portions of in camera records IC 2006-655-8, 12, 14, 54, 55 and 56 containing social security numbers are exempt from disclosure pursuant to §42-470, G.S.

 

46.  Section 43-470, G.S., provides in relevant part:

(a) For the purposes of this section, "person" means any individual, firm, partnership, association, corporation, limited liability company, organization or other entity, but does not include the state or any political subdivision of the state, or any agency thereof.

     (b) Except as provided in subsection (c) of this section, on and after January 1, 2005, no person shall:

      (1) Publicly post or publicly display in any manner an individual's Social Security number. For the purposes of this subdivision, "publicly post" or "publicly display" means to intentionally communicate or otherwise make available to the general public …

47.  It is concluded that §43-470, G.S., by its express terms does not apply to the state or any agency thereof.

 

48.  It is therefore concluded that the social security numbers contained in the requested records are not exempt from disclosure pursuant to §43-470, G.S., although the Commission has historically declined to order the disclosure of social security numbers, and will observe that precedent in this case.

 

49.  The respondent also contends that in camera record IC 2006-655-41 is a medical record, the disclosure of which would constitute an invasion of privacy pursuant to §1-210(b)(2), G.S.

 

50.  Section 1-210(b)(2), G.S., provides that disclosure is not required of “personnel, medical or similar files.”

 

51.  The Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).   The claimant must first establish that the files in question are personnel, medical or similar files.  Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy.  In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that the disclosure of such information is highly offensive to a reasonable person.  The Commission takes administrative notice of the multitude of court rulings, commission final decisions¹, and instances of advice given by the Commission staff members², which have relied upon the Perkins test, since its release in 1993.

 

52.  It is found that in camera record 2006-655-41 is a medical file within the meaning of §1-210(b)(2), G.S. 

 

53.  It is also found, however, that the respondent failed to prove that disclosure of the requested record would constitute an invasion of personal privacy.   The record in this case recites nothing more than that the complainant was administered antibiotics.

 

54.  It is therefore concluded that the record described in paragraph 49, above, is not exempt from disclosure pursuant to §1-210(b)(2), G.S.

 

55.  It is concluded that the respondent violated §§1-210(a) and 1-212 (a), G.S., by failing to provide copies of the following records:

 

2006-655-1 through 3: Department of Public Safety (“DPS”) investigation report dated 7/28/06;

2006-655-7: DOC Special management profile of victim

2006-655-8: Untitled DOC data concerning victim;

2006-655-9: DOC location transfer data concerning victim;

2006-655-10: DOC disciplinary history of victim;

2006-655-11: DOC risk and needs data of victim;

2006-655-12; DOC risk history of victim;

2006-655-13: DOC special management profile of suspect;

2006-655-14: DOC untitled data concerning suspect;

2006-655-15: DOC location transfer data concerning suspect;

2006-655-16: DOC disciplinary history of suspect;

2006-655-17: DOC risk and needs data concerning suspect;

2006-655-18: DOC risk history of suspect

2006-655-19: NCIC sexual offender registry information;

2006-655-20: DOC incident report dated 7/22/06

2006-655-21 and 22: DOC inmate interview with victim;

2006-655-23 and 24: DPS photography report;

2006-655-25 and 26: DPS evidence report;

2006-655-27: DPS digital photography report

2006-655-30: DPS investigation report concerning suspect statement

2006-655-37 through 40: inventory of property seized by DPS;

2006-655-41: page 4 of “patient [victim] file”;

2006-655-42: University of Connecticut Health Center Police Department possessed property receipt for release of property to DPS;

2006-655-43: photo array;

2006-655-44 through 51: Court orders concerning the disposition of physical evidence dated 9/26/06

2006-655-52: Letter from evidence officer to state’s attorney’s office concerning disposition of physical evidence, dated 7/31/06;

2006-655-53: Notice and waiver of rights by suspect;

2006-655-54 through 56: untitled DOC data concerning complainant; and

2006-655-57: DPS data sheet for film submitted.

 

56.  Finally, it is concluded that the ten-week delay in responding to the complainant’s request was not prompt within the meaning of §1-210(a) and 1-212(a), G.S.

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

 

            1.  The respondent shall forthwith provide the complainant, at no cost, a copy of the records described in paragraph 55 of the findings, above, without any redactions other than social security numbers.

 

 2.  The respondent shall not destroy, or otherwise dispose of, any of the requested records pursuant to §1-216, G.S.

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 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:

 

David Grant

c/o Timothy Fetzer, Esq.

65 Elm Street

Winsted, CT 06098

           

State of Connecticut,

Department of Public Safety

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-655FD/paj/11/15/2007

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ENDNOTES

 

1. A. Court cases

 

Director, Retirement & Benefits Services Div. v. FOIC, 256 Conn. 764 (2001); Rocque v. FOIC, 255 Conn. 651 (2001); Dept. of Public Safety v FOIC, 242 Conn. 79 (1997) Conn. Alcohol & Drug Abuse Commission v. FOIC, 233 Conn.28 (1995) Kurecza v. FOIC, 228 Conn. 271 (1994); First Selectman v. FOIC, 60 Conn. App. 64 (2000); Dept. of Children & Families v. FOIC, 48 Conn. App. 467 (1998); Almeida v. FOIC, 39 Conn. App. 154 (1995); Dept. of Transportation v. FOIC, Super Ct JD NB CV 01-0508810 (Schuman, J. 2001); City Treasurer, City of Hartford v. FOIC, Super Ct JD NB CV 99 0496222 (Cohn, J. 2000); Rocque, Commissioner of Environmental Protection v. FOIC, Super Ct JD NB CV 98 0492734 (Hartmere, J. 1999); Director, Retirement & Benefits Services Div. v. FOIC, Super Ct JD NB CV 98 0492692 (Hartmere, J. 1999); First Selectman, Town of Ridgefield v. FOIC, Super Ct JD NB CV 99‑0493041 (McWeeny, J. 1999); Chairman, Bd. of Education Town of Darien v. FOIC, Super Ct JD Htfd NB CV 97 0575674 (McWeeny, J. 1998); Waters, Commissioner of State of Conn. Dept. of Administrative Services v. FOIC, Super Ct JD Htfd/NB CV 96 0565853 (McWeeny, J. 1997); Armstrong, Commissioner of State of Conn. Dept. Of Correction v. FOIC, Super Ct JD Htfd/NB CV 96 0563608 (McWeeny, J. 1997); Dept. of Children & Families v. FOIC, Super Ct JD Htfd NB CV 96 0562546 (McWeeny, J. 1997); State of Conn. Office of Protection and Advocacy for Persons with Disabilities v. FOIC, Super Ct JD Htfd/NB CV 95 0554467 (McWeeny, J. 1997); Youngquist v. FOIC, Super Ct JD Htfd/NB, CV 95 0554601 (McWeeny, J. 1996 and 1997); Cracco v. FOIC, Super Ct JD Htfd/NB, CV 94 0705371 (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 93 0705370, (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 94 0705369, (Dunnell, J. 1995); Simonds v. FOIC, Super Ct JD Htfd/NB, CV 93 070 41 39 (Maloney, J. 1994); Gallagher v. FOIC, Super Ct JD Htfd/NB, CV 93 0531514 (Maloney, J. 1994).

 

 

1. B. FOIC Decisions

 

Docket #FIC 2000-624; Eric Gustavson v. Board of Education, Brookfield Public Schools (June 13, 2001); Docket #FIC 2000-557; Wendy John v. Richard Blumenthal, Attorney General, State of Connecticut, Office of the Attorney General; Wil Gundling, William McCullough, Phillip Schulz, Margaret Chapple, Assistant Attorneys General, State of Connecticut, Office of the Attorney General; and State of Connecticut, Office of the Attorney General (June 13, 2001); Docket #FIC 2000-268; Michael Costanza and The Day v. Director of Utilities, Utilities Department, City of Groton; and Mayor, City of Groton (April 25, 2001); Docket #FIC 2000-198; William J. Stone v. Personnel Administrator, State of Connecticut, Department of Transportation, Bureau of Finance and Administration; and State of Connecticut, Department of Transportation (April 20, 2001); Docket #FIC 2000-537; James Leonard, Jr. v. Chief, Police Department, City of New Britain (March 28, 2001); Docket #FIC 2000-348; Bradshaw Smith v. Office of the Vice Chancellor for Information Services, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut (February 28, 2001); Docket #FIC 2000-474; Robert H. Boone and Journal Inquirer v. Chief, Police Department, Town of Windsor Locks (Jan. 24, 2001); Docket #FIC 2000-265; Lisa Goldberg and The Hartford Courant v. Superintendent of Schools, Vernon Public Schools (Jan. 24, 2001); Docket #FIC 2000-569; Mary Hyde v. Chief, Police Department, Town of Seymour (Dec. 13, 2000); Docket #FIC 2000-049; Nicholas B. Wynnick v. Board of Directors, Ansonia Public Library, Town of Ansonia (Dec. 13, 2000); Docket #FIC 2000-136; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC 2000-135; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC2000-086; Mitchell D. Poudrier v. Superintendent of Schools, Killingly Public Schools (Sept. 13, 2000); Docket #FIC 2000-173; Robert H. Boone and the Journal Inquirer v. Anthony Milano, District Manager, Metropolitan District Commission; and Metropolitan District Commission (Aug. 23, 2000); Docket #FIC 2000-094; James D. Goodwin v. Communications Specialist, State of Connecticut, Department of Social Services, Public and Government Relations Unit (Aug. 9, 2000); Docket #FIC 2000-022; Thedress Campbell v. City Treasurer, City of Hartford (Aug. 9, 2000); Docket #FIC 2000-137; Robert H. Boone and Journal Inquirer v. Metropolitan District Commission (July 12, 2000); Docket #FIC 1999-560; Leo F. Smith v. Robert H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town of Suffield (July 12, 2000); Docket #FIC 1999-556; Delores Annicelli v. Director, New Haven Housing Authority, City of New Haven; and New Haven Housing Authority, City of New Haven (July 12, 2000); Docket #FIC 1999-548; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-547; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-525; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 2000-118; Elizabeth Ganga and Connecticut Post v. Police Department, Town of Stratford (June 28, 2000); Docket #FIC 2000-095; Ron Robillard and the Chronicle v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 2000-093; Megan J. Bard and The Norwich Bulletin v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 1999-575; Bruce Kaz v. Robert Skinner, First Selectman, Town of Suffield; and Ted Flanders, Building Inspector, Town of Suffield (June 28, 2000); Docket #FIC 1999-519; Robert J. Fortier v. Personnel Director, Town of East Hartford; and Mayor, Town of East Hartford (June 14, 2000); Docket #FIC1999-550; James and Susanne Milewski v. Deputy Chief, Police Department, Town of Clinton; and Police Department, Town of Clinton (May 24, 2000); Docket #FIC 2000-005; Fred B. Feins v. President and Chief Executive Officer, Granby Ambulance Association, Inc., Town of Granby (May 10, 2000); Docket #FIC1999-606; Robert L. Corraro and IBEW Local 90 v. Town Attorney, Town of Hamden; and Electrical Contractors, Inc. (May 10, 2000); Docket #FIC 1999-533; Donald J. Lanouette, Jr. v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (April 26, 2000); Docket #FIC 1999-502; Christopher Hoffman and New Haven Register v. Director of Personnel, State of Connecticut, Southern Connecticut State University; and Personnel Office, State of Connecticut, Southern Connecticut State University (April 26, 2000); Docket #FIC1999-440; Anne Hamilton and The Hartford Courant James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant, Police Department, Town of Avon; and Police Department, Town of Avon (March 8, 2000); Docket #FIC1999-333; Lynn Fredricksen and New Haven Register v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (March 8, 2000); Docket #FIC 1999-289; Thomas Moran v. Director, Human Resources, Town of Simsbury; and Department of Human Resources, Town of Simsbury (Feb. 9, 2000); Docket #FIC 1999-328; Victor Zigmund v. Director, State of Connecticut, Department of Mental Health and Addiction Services, Human Resources Operations, Connecticut Valley Hospital, Whiting Forensic Division (Jan. 26, 2000); Docket #FIC 1999-100; Janice D’Arcy and The Hartford Courant v. Chief, Police Department, Town of Cheshire; Police Department, Town of Cheshire; Town Manager, Town of Cheshire; and Town of Cheshire (Jan. 26, 2000); Docket #FIC 1999-355; Wayne Mercier v. Patricia C. Washington, Director of Personnel, City of Hartford; and Department of Personnel, City of Hartford (Nov. 10, 1999); Docket #FIC 1998-391; Jonathan F. Kellogg and The Republican American v. Department of Education, City of Waterbury (Oct. 13, 1999); Docket #FIC 1999-161; Michael W. Cahill v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden (Sept. 22, 1999); Docket #FIC 1998-294; Robert J. Bourne v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1998-293; Joseph J. Cassidy v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1999-040; Judith F. Machuga and State of Connecticut, Division of Public Defender Services, Superior Court, G.A. 13 v. Chief, Police Department, Town of East Windsor; and Police Department, Town of East Windsor (Aug. 25, 1999); Docket #FIC 1999-144; Robert H. Boone and Journal Inquirer v. William Gifford, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Windsor Locks Police Commission (July 28, 1999); Docket #FIC 1999-096; Paul Marks and The Hartford Courant v. Chief, Police Department, Town of Windsor Locks; and Police Department, Town of Windsor Locks (July 28, 1999); Docket #FIC 1999-064; Joan Coe v. First Selectman, Town of Simsbury; Director, Human Resources Department, Town of Simsbury; and Town of Simsbury (July 28, 1999); Docket #FIC 1999-150; Andrew Nargi v. Office of Corporation Counsel, City of Torrington; and City of Torrington (July 14, 1999); Docket #FIC 1999-135; Warren Woodberry, Jr. and The Hartford Courant v. Acting Town Manager, Town of Rocky Hill and Town of Rocky Hill (July 14, 1999); Docket #FIC 1999-015; Richard Manuel Rivera v. Superintendent of Schools, Torrington Public Schools; and Board of Education, Torrington Public Schools (June 9, 1999); Docket #FIC 1998-372; William C. Kaempffer and New Haven Register v. Police Department, City of New Haven; City of New Haven; and James Sorrentino (June 9, 1999); Docket #FIC 1997-361; Dominick L. Santarsiero v. Director, Human Resources, City of Stamford (June 10, 1998); Docket #FIC 1999-019; David K. Jaffe v. State of Connecticut, Connecticut Lottery Corporation, Human Resources; State of Connecticut, Connecticut Lottery Corporation, Security Division; and State of Connecticut, Connecticut Lottery Corporation (April 28, 1999); Docket #FIC1998-325; Virginia Groark and The Day v. Freedom of Information Officer, State of Connecticut, Department of Public Health, Office of Special Services, Communications Division; and Agency Personnel Administrator, State of Connecticut, Department of Public Health, Human Resources Division (April 28, 1999); Docket #FIC 1998-208; Thedress Campbell v. City Treasurer, City of Hartford; and City of Hartford (April 14, 1999); Docket #FIC 1998-265; Benjamin M. Wenograd and Service Employees International Union Local 760 v. John Roughan, Executive Director, East Hartford Housing Authority; and East Hartford Housing Authority, Town of East Hartford (March 24, 1999); Docket #FIC 1997-363; Diana R. Raczkowski v. Mayor, Town of Naugatuck (March 11, 1998); Docket #FIC 1997-307; Krystin Bratina v. Chief, Hartford Fire Department, City of Hartford (March 11, 1998); Docket #FIC 1998-288; Christian Miller and the New Haven Register v. Superintendent, Branford Public Schools; and Board of Education, Branford Public Schools (Feb. 24, 1999); Docket #FIC 1998-255; Joan O’Rourke v. Chief, Police Department, City of Torrington; and Police Department, City of Torrington (Jan. 27, 1999); Docket #FIC 1998-251; John Ward v. Beverly L. Durante, Personnel Administrator, Housatonic Area Regional Transit; and Housatonic Area Regional Transit (Jan. 27, 1999); Docket #FIC 1998-163; Lawrence A. Butts v. Director, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-162; Lawrence A. Butts Chairperson, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-232; Scott Clark, Amy Kertesz, Michael Gates and the Ridgefield Police Union v. First Selectman, Town of Ridgefield; and Town of Ridgefield (Nov. 18, 1998); Docket #FIC 1998-193; Daniel P. Jones and The Hartford Courant v. Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection (Nov. 18, 1998); Docket #FIC 1998-121; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown and Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998-120; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown (        Oct. 14, 1998); Docket #FIC 1998‑094; Janice D'Arcy and The Hartford Courant v. Chief, Meriden Police Department, City of Meriden and Meriden Police Department (Oct. 14, 1998); Docket #FIC 1997-422; Joseph A. Johnson, Jr. and Greenwich Time v. Chief, Greenwich Police Department, Town of Greenwich; and Greenwich Police Department, Town of Greenwich (Sept. 9, 1998); Docket #FIC 1998-023; Deborah Maynard v. Superintendent, Voluntown School District; and Principal, Voluntown Elementary School, Voluntown School District (Aug. 12, 1998); Docket #FIC 1997-298; Allan Drury and The New Haven Register v. Chief, East Haven Police Department, Town of East Haven; and Town of East Haven (June 10, 1998); Jonathan Lucas and Greenwich Times v. Director, Department of Human Resources, Town of Greenwich; and Town of Greenwich (May 27, 1998); John C. Rettman v. Meriden Police Department, Internal Affairs Division; and Paul Rowen (May 13, 1998); Docket #FIC 1997-318; Dennis Carnot v. Chief, Meriden Police Department, City of Meriden; Internal Affairs Division, Meriden Police Department, City of Meriden; Meriden Police Department, City of Meriden; and Paul Rowen (May 13, 1998); Docket #FIC 1997-175; Matthew Brown, Ken Byron and The Hartford Courant v. Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth (February 18, 1998); Docket #FIC 1997-123; John Christoffersen and The Advocate v. Superintendent of Schools, Stamford Public Schools and Director of Personnel, Stamford Public Schools (Feb. 11, 1998); Docket #FIC 1997-088; John B. Harkins v. Acting Town Manager, Town of Tolland (Jan. 28, 1998); Docket #FIC 1997-085; Joe Johnson and Greenwich Time v. Chief of Police, Greenwich Police Department (Jan. 28, 1998); Docket #FIC 1997-142; Laura Amon v. Program Manager, Affirmative Action Division, State of Connecticut, Department of Transportation (Dec. 3, 1997); Docket #FIC 1996-572; Ken Byron and The Hartford Courant v. Chief of Police, Town of Wethersfield (Nov. 12, 1997); Docket #FIC 1997-238; Kimberley A. Thomsen and the Republican-American v. Acting Superintendent, Waterbury Police Department (Oct. 29, 1997); Docket #FIC 1997-089; Steven Edelman v. Commissioner, State of Connecticut, Department of Mental Retardation; and State of Connecticut, Department of Mental Retardation (Oct. 22, 1997); Docket #FIC 1996-551; Judith A. Amato v. Executive Director, New Britain Housing Authority; and New Britain Housing Authority (Aug. 27, 1997); Docket # FIC 1996-539; Ann Marie Derwin v. Legal Advisor, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety (Aug. 27, 1997); Docket #FIC 1996-592; Francine Karp v. Mayor, City of Bristol; Director of Personnel, City of Bristol; and Dennis Daigneault (July 23, 1997); Docket #FIC 1996-243; Joanne C. Tashjian v. Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission (June 4, 1997); Docket #FIC 1996-322;Carolyn Moreau and The Hartford Courant v. Chief of Police, Southington Police Department; and Susan Williams (May 28, 1997); Docket #FIC 1996-465; John Gauger, Jr., Joseph Cadrain and Richard Westervelt v. Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police (April 9, 1997); Docket #FIC 1996-315; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-521; Carol Butterworth v. Town Council, Town of Tolland (March 26, 1997); Docket #FIC 1996-421; John B. Harkins v. Chairman, Tolland Town Council (March 26, 1997); Docket #FIC 1996-314; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-119; David W. Cummings v. Jesse M. Frankl, Chairman, State of Connecticut, Workers’ Compensation Commission (March 26, 1997); Docket #FIC 1996-215; Alice M. Gray v. Chief of Police, Manchester Police Department, and Assistant Town Attorney, Town of Manchester (Feb. 26, 1997); Docket #FIC 1996-159; Carolyn Moreau and The Hartford Courant v. Police Chief, Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-124; Donald H. Schiller, Michael Kelley and The Record-Journal Publishing Company v. Police Chief, Town of Southington Police Department, and Town of Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-134; Betty Halibozek v. Superintendent of Schools, Middletown Public Schools; and Supervisor of Maintenance and Transportation, Board of Education, City of Middletown (Dec. 11, 1996); Docket #FIC1996-006; Joseph Cadrain and Richard Westervelt v. Gerald Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety, Division of State Police (Dec. 11, 1996); Docket #FIC 1996-153; Tracey Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety (Nov. 20, 1996); Docket #FIC1995-419; Robie Irizarry v. Warden, Willard Correctional Institution, State of Connecticut, Department of Correction (Oct. 23, 1996); Docket #FIC 1995-368; Thomas Lally v. Executive Director, State of Connecticut Board of Education and Services for the Blind, and Special Projects Coordinator, State of Connecticut, Board of Education and Services for the Blind (Oct. 9, 1996); Docket #FIC 1995-403; Jesse C. Leavenworth and The Hartford Courant v. Superintendent of Schools, Regional School District #7 (Sept. 25, 1996); Docket #FIC 1995-361; Christopher Hoffman and the New Haven Register v. James J. McGrath, Chief of Police, Ansonia Police Department and Eugene K. Baron, Brian Phipps, and Howard Tinney as members of the Ansonia Board of Police Commissioners (Sept. 25, 1996); Docket #FIC1995-358; Lyn Bixby and The Hartford Courant v. State of Connecticut, Department of Administrative Services (Sept. 25, 1996); Docket #FIC 1996-056; Francine Cimino v. Chief of Police, Glastonbury Police Department; Town Manager, Town of Glastonbury; and Town of Glastonbury (Sept. 25, 1996); Docket #FIC 1995-343; John J. Woodcock, III v. Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 1995-324; John J. Woodcock, III and Kathryn A. Hale v. Dana Whitman, Jr., Acting Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 95-251; Lyn Bixby & The Hartford Courant v. Commissioner, State of Connecticut, Department of Correction (July 10, 1996); Docket #FIC 1995-252; Valerie Finholm and The Hartford Courant v. Commissioner, State of Connecticut, Department of Children and Families (May 22, 1996); Docket #FIC 1995-193; Terence P. Sexton v. Chief of Police, Hartford Police Department (May 8, 1996); Docket #FIC 1995-125; Chris Powell and Journal Inquirer v. Commissioner, State of Connecticut, Department of Social Services (March 13, 1996); Docket #FIC 1995-081; Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison v. State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities, Sharon Story and Marlene Fein (March 13, 1996); Docket #FIC 1995-074; Jeffrey C. Cole and WFSB/TV 3 v. James Strillacci, Chief of Police, West Hartford Police Department (Jan. 24, 1996); Docket #FIC 1995-026; Curtis R. Wood v. Director of Affirmative Action, State of Connecticut, Department of Correction (Jan. 24, 1996); Docket #FIC 1995-132; Michael A. Ingrassia v. Warden, Walker Special Management Unit, State of Connecticut Department of Correction (Dec. 27, 1995); Docket #FIC 1995-048; Jane Holfelder v. Canton Police Department (June 14, 1995); Docket #FIC 1994-351; Edward A. Peruta v. O. Paul Shew, Rocky Hill Town Manager and Director of Public Safety; Donald Unwin, Mayor of Rocky Hill, William Pacelia, Deputy Mayor of Rocky Hill; and Curt Roggi, Rocky Hill Town Attorney (May 28, 1995); Docket #FIC 1994-160; John Springer and The Bristol Press v. Chief of Police, Bristol Police Department (April 5, 1995); Docket #FIC 1994-077; Kathryn Kranhold and The Hartford Courant v. Director, New Haven Health Department (Feb. 8, 1995); Docket #FIC 1994-099; Frank Faraci, Jr. v. Middletown Police Department, Mayor of Middletown, and Middletown City Attorney (Feb. 2, 1995); Docket #FIC 1994-011; Robert Grabar, Edward Frede and The News-Times v. Superintendent of Schools, Brookfield Public Schools and Brookfield Board of Education (Aug. 24, 1994); Docket #FIC 1993-279; Jay Lewin v. New Milford Director of Finance (March 23, 1994)

 

 

 

2. Affidavit of Eric Turner, January 9, 2002.

 

AFFIDAVIT OF ERIC V. TURNER

 

Eric V. Turner, having been duly sworn, does hereby depose as follows:

 

1.  I am over the age of eighteen (18) years and understand the obligation of an affirmation.

 

2.  I am a member of the Connecticut Bar and am currently employed as Director of Public Education for the Connecticut Freedom of Information Commission, having first been employed by said commission in 1996.

 

3.  I am providing this affidavit in light of the Supreme Court decision in Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764 (2001), in which the court apparently invites a reconsideration of Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).  See, Director, supra at 782, fn 13, 785 (Zarella, J. concurring).

 

4.  As part of my responsibilities as Director of Public Education for said commission, I have developed, organized and scheduled speaking engagements, seminars and programs explaining the duties and rights established under the Connecticut Freedom of Information Act.

 

5.  Since I assumed my current position in 1996, there have been approximately 290 such speaking engagements, seminars and programs in Connecticut and I have personally lectured in approximately 80 such speaking engagements, seminars and programs.

 

6.  As part of the presentation I have prepared for such speaking engagements, seminars and programs, the subject of the Connecticut General Statues Section 1-210(b)(2) exemption for personnel, medical and similar files the disclosure of which would constitute an invasion of personal privacy is stressed because of the great interest in that exemption and the confusion generated by a series of inconsistent and contradictory court decisions prior to Perkins, supra.  See, e.g., Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991) (establishing “reasonable expectation of privacy” test; query whether subjectively or objectively applied) and Board of Education v. Freedom of Information Commission, 210 Conn. 590 (1989) (confirming a “balancing” test), which was overruled by the Chairman case.

 

7.  Since the Supreme Court ruling in Perkins, supra, all Freedom of Information Commission staff members who conduct such speaking engagements, seminars and programs discuss in detail the rulings in that case and its progeny.

 

8.  As part of my responsibilities as Director of Public Education, I also answer telephone and other inquiries from public officials and the public.  Since my employment with said commission, I have answered thousands of such inquiries, including hundreds of inquiries concerning the Connecticut General Statutes Section 1-210(b)(2) exemption.  In responding to such inquiries I discuss in detail the Perkins case and its progeny.

 

9.  Based on the foregoing experiences, it is my opinion that the Perkins decision, and its progeny, have had a beneficial effect on public officials and the public itself because they can rely on a now long-standing and clear test with respect to the Connecticut General Statutes Section 1-210(b)(2) exemption, which helps them determine whether that exemption is applicable to the practical problems they encounter with respect to personnel, medical and similar information.  Indeed, the many court and Freedom of Information Commission decisions applying the Perkins test have given public officials and the public a now consistent body of law concerning that statutory exemption.

 

 

Eric V. Turner

 

 

 

COUNTY OF HARTFORD

                                                            ss:  Hartford

STATE OF CONNECTICUT

 

Subscribed and attested to before me this 9th day of January, 2002.

 

 

 

Mitchell W. Pearlman

Commissioner of the Superior Court