FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 27, 2010, at which time the complainant and respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      It is found that on January 6, 2010, the complainant requested all records generated as a result of an incident on December 22, 2009 involving the complainant’s alleged assault of staff.

 

3.      By letter of complaint filed February 2, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of records. 

 

4.      Section 1-200(5), G.S., defines “public records” as follows:

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

5.      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 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.

 

6.      Section 1-212(a), 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.”

 

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

 

8.      It is found that on May 31, 2010, the respondents provided the complainant with redacted copies of the records he requested.

 

9.      The respondents claimed the information redacted from the copies of records provided to the complainant is permissibly exempt from disclosure pursuant to §§1-210(b)(18), 1-210(b)(2), 52-146e, G.S., Public Act 10-58, and “HIPAA” (Health Insurance Portability and Accountability Act).  The complainant challenged most of the respondents’ redactions.

 

10.   Upon order by the hearing officer, the respondents submitted an unredacted copy of the records for in camera inspection.  Such records have been identified as IC-2010-061-1 through IC-2010-061-122.  The Index to Records Submitted for In Camera Inspection (“Index”), incorporated herein by reference, identifies the exemptions that the respondents claim for each record.

 

11.   It is found that the in camera record is a report captioned “Incident Report” and includes copies of various supplemental forms and reports such as use of force reports, injury reports, medical incident reports, disciplinary reports, emergency procedures logs, inmate property inventory forms, supervisor video recording review forms, contraband/physical evidence tag and chain of custody forms, inmate location history printouts, photographs, and investigative reports.

 

12.   Section 1-210(b)(18), G.S., exempts from mandatory disclosure:

 

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;

13.    It is found that the respondents claimed that §1-210(b)(18), G.S., exempts the following information from disclosure:

 

a.       Staff first names and identifying information

b.      Staff medical information

c.       Code colors and descriptions

d.      Type of chemical agent used

e.       Perimeter vehicle information

f.       Inmate names, numbers and locations

g.      Phone numbers

h.      Victim names and identifying information

i.        Investigative techniques

j.        Weapon description

k.      Description of injury to staff

l.        Photographs of injury to staff

m.    Transportation information about inmate

n.      Log book with emergency response procedures and movement of staff

 

14.   The respondents claim that disclosing staff first names and identifying information, including race and status with respect to the incident (e.g., responding supervisor, responding employee, victim) would make the staff easier to identify, and would make staff vulnerable to retaliation within and outside the institution. 

 

15.   The respondents claim that disclosure of the medical information contained in the in camera records may result in a risk of harm because a known injury or medical condition in a staff member may make that member more vulnerable to a targeted assault by an inmate.  

 

16.    At the hearing in this matter, the complainant stated that he did not challenge redaction of the code colors and descriptions.

 

17.    The respondents claim that disclosure of the type of chemical agent used in the incident may facilitate an inmate’s ability to protect himself against the effects of the agent in subsequent deployments. 

 

18.   The respondents claim that disclosure of perimeter vehicle information would reveal part of the respondents’ emergency plan during lockdown of the facility.

 

19.    The respondents claim that disclosure of inmates’ names, numbers and locations contained within the respondents’ report of the investigation into the alleged assault by the complainant may subject the inmates to an increased risk of harassment or physical harm by the complainant or other inmates.

 

20.   The respondents claim that disclosure of private phone numbers called by certain inmates around the day and location of the assault may reveal the identity of the inmate callers, and thereby subject such inmates to an increased risk of harassment or physical harm by the complainant or other inmates.

 

21.   The respondents claim that disclosure of the assault victims’ names and identifying information, particularly when the victims are staff members, may subject the victims to targeted assaults and/or harassment because inmates may believe the victims are vulnerable to further physical or mental injury.

 

22.   The respondents claim that disclosure of the respondents’ techniques in investigating the assault may facilitate inmates’ abilities to circumvent those techniques and thereby thwart the respondents’ ability to gather meaningful intelligence within the facility. 

 

23.   The respondents claim that disclosure of any record that describes the weapon used in the assault may increase the risk of that type of weapon being used in another assault, by making the weapon easier to reproduce either by the complainant or another inmate.

 

24.   The respondents claim that disclosure of descriptions and photographs of injuries to staff from the assault may empower the alleged attacker who may use the photograph to wield influence among the inmates and staff.  The respondents also claim that such information reveals medical conditions, which pose the risk described in paragraph 15, above.

 

25.   The complainant contends that the respondents’ efforts to conceal the injury and type of weapon are improper because one of the records provided to the complainant contained such information and was not redacted.  It is found that the complainant is correct that the respondents did disclose such information to the complainant.  It is further found, however, that such disclosure does not prevent the respondents from relying on an appropriate exemption to withhold information about the injury or the weapon.  It is also found that some of the records withheld by the respondents because they contain information about the injury and weapon provide greater detail than is contained in the record disclosed to the complainant.

 

26.   The respondents claim that records containing information about the transportation of the complainant and log books containing emergency procedures and the movement of staff are exempt from disclosure pursuant to §1-210(b)(18)(G), G.S.

 

27.   After a careful review of the in camera records, it is found that the Commissioner of Correction has reasonable grounds to believe that disclosure of the portions of the in camera records described in paragraph 13, above, and as referenced on the Index, may result in a safety risk, within the meaning of §1-210(b)(18), G.S., and consequently, it is concluded that such records are exempt from disclosure.  It is concluded that the respondents did not violate the FOI Act by redacting those portions. 

 

28.   The Commission has previously addressed several of the issues in this case in a previous matter between the complainant and the Department of Correction concerning disclosure to an inmate of an incident report of an assault by an inmate in a correctional institution.  See Robin Elliott v. Commissioner, State of Connecticut, Department of Correction; Warden, State of Connecticut, Department of Correction, Corrigan-Radgowski Correctional Institution; and State of Connecticut, Department of Correction; Docket #FIC 2008-507 (July 22, 2009), paragraphs 45 through 47 (medical information), 67 through 69 (victim information), and 63 through 65 (emergency logs).  See also, Curt Rivard v. Lauren Powers, FOI Officer and Deputy Warden, State of Connecticut, Northern Correctional Institution, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC 2009-466 (May 12, 2010), paragraphs 20-25 (first names of staff); and James Baker v. Warden, State of Connecticut, Department of Correction, Osborn Correctional Institution; Docket #FIC 2007-317.

 

29.   On the Index, the respondents identified some records that were redacted in error.  The Commission advises the respondents to provide unredacted copies of such records to the complainant, if they have not already done so.

 

30.    In light of the Commission’s conclusion that all of the redactions to the records provided to the complainant were permissible (except for those redacted in error, as described in paragraph 29, above), it is not necessary to consider the respondents’ other claims of exemption.

 

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

 

1.       The complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of January 13, 2011.

 

 

__________________________

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:

 

Robin Elliott, #24941

Northern Correctional Institution

287 Bilton Road

PO Box 665

Somers, CT 06071

 

Warden, State of Connecticut,

Department of Correction, Northern

Correctional Institution; and State of

Connecticut, Department of Correction

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-061FD/paj/1/14/2011