FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 8, 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 October 30, 2009, the complainant, who is an inmate in the custody of the respondents, sent a written request to the Connecticut Department of Administrative Services (“DAS”) for the names of five correctional officers at Northern Correctional Institution, along with the officers’ positions held and locations of job sites. 

 

3.      It is found that on November 2, 2009, DAS sent through first-class mail an acknowledgement of the complainant’s request:  “This letter is to acknowledge receipt of your Freedom of Information request of Friday, October 30, 2009.”

 

4.      It is found that on November 17, 2009, the respondents received copies of records from DAS that were responsive to the complainant’s request, described in paragraph 2, above.

 

5.      It is found that the respondents reviewed the records but refused to provide any of them to the complainant because the “contents poses [sic] a threat to safety and security concerns.”  It is found that the respondents returned the records to DAS, and notified the complainant of the rejection.

 

6.      It is found that the complainant appealed the respondents’ decision through several channels.  It is found that the complainant first appealed to the warden on November 20, 2009.  It is found that the complainant, having received no response from the warden, wrote to him again, on December 14, 2009.  It is found that the warden responded to the complainant on December 18, 2009, but told him to contact the deputy warden.  It is found that the deputy warden wrote to the complainant on December 29, 2009, rejecting his appeal.

 

7.        It is found that on January 4, 2010, the complainant turned to the Assistant Attorney General who serves as liaison between the Attorney General and the respondents.  It is found that on January 7, 2009, the Assistant Attorney General responded to the complainant, informing him that she was sending his letter to the respondents’ Director of Legal Affairs. 

 

8.      It is found that on January 11, 2010, the Director of Legal Affairs informed the complainant that she concurred with the deputy warden’s assessment.  It is found that on January 13, 2010, the complainant wrote a letter to the Director of Legal Affairs in which he reiterated his right to all of the information in the records.  It is found that the Director of Legal Affairs wrote to the complainant on January 15, 2010, informing him that she was forwarding his letter to the Freedom of Information (“FOI”) Administrator for the respondents, and that the complainant “should be receiving a reply from her office in the near future.” 

 

9.      It is found that on February 19, 2010, the complainant sent a letter to the respondents’ FOI Administrator, informing her that he would file an appeal with the FOI Commission if he did not hear from her within the next seven days.

 

10.   By letter of complaint filed March 10, 2010, the complainant appealed to the Commission, alleging that the respondents violated the FOI Act by failing to provide him with copies of records that DAS sent to him in response to his written request, described in paragraph 2, above. 

 

11.   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.

 

12.   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.

 

13.   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.”

 

14.   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.

 

15.   The respondents claim that they rejected the records sent by DAS pursuant to the respondents’ Administrative Directive (“AD”) 10.7, which is entitled “Inmate Communications” and provides for the review, inspection and rejection of incoming correspondence addressed to an inmate in the custody of DOC.  The respondents claim that “the FOIC has no jurisdiction over the enforcement of DOC mail review policies.”

 

16.     The respondents did not raise any claim of exemption pursuant to the FOI Act.

 

17.     It is found that, because the complainant was on “mail review,” meaning that the respondents reviewed each piece of the complainant’s incoming and outgoing mail, the respondents had notice of the complainant’s request for records from DAS and of DAS’s plan to comply with the complainant’s request.  It is found that the respondents knew that the DAS records they refused to give to the complainant were sent to him pursuant to his rights under the FOI Act. 

 

18.   This Commission has previously concluded that “because the administrative directives are neither federal laws nor state statutes, AD 10.7 does not supersede the disclosure provisions of the FOI Act or authorize the [respondents] to withhold public records that have been provided to an inmate pursuant to the FOI Act.”  Albert Farah v. Commissioner, State of Connecticut, Department of Public Safety; State of Connecticut, Department of Public Safety; Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC 2009-252.

 

19.     Although the respondents did not claim any exemption pursuant to the FOI Act, §1-210(b)(18), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:

 

Records, the disclosure of which the Commissioner of Correction . . . 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 . . .

 

20.     It is found that the respondents rejected the records sent by DAS only because such records contained the first names of correctional officers. 

 

21.     It is found that the respondents believe that disclosure of the first names of correctional officers would make it easier to contact officers outside of the workplace, thus endangering the safety of staff and their families.

 

22.     The respondents cite Curt Rivard v. Lauren Powers, Freedom of Information Officer and Deputy Warden, State of Connecticut, Northern Correctional Institution, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC 2009-466, which found that the first names of correctional officers were exempt from mandatory disclosure to inmates.

 

23.     The complainant contends, credibly, that he requested the first names solely to accurately identify certain correctional officers in order to file grievances and other legal proceedings against specific staff members. 

 

24.     It is found that on November 12, 2009, the respondents’ deputy warden for Northern Correctional Institution provided the first names of five other correctional officers, in response to a different request by the complainant pursuant to the FOI Act on September 11, 2009.  It is found that on at least one other occasion, the respondents provided the first names of correctional officers in response to a request by an inmate pursuant to the FOI Act.

 

25.     Nevertheless, it is found that the commissioner of the Department of Correction had reasonable grounds to believe that disclosure of the first names of the employees, as requested by the complainant, may result in a safety risk, within the meaning of §1-210(b)(18), G.S.

 

26.     It is further found that the respondents provided no evidence that they believed disclosure of the remainder of the information in the records requested by the complainant (i.e., the positions held and job sites of correctional officers at Northern Correctional Institution) may create a safety risk.  It is further found that the respondents do not object to disclosure of such information.

 

27.     Accordingly, it is concluded that the respondents violated the FOI Act by failing to provide the records described in paragraph 26, above, to the complainant in a prompt manner.

 

28.     At the hearing in this matter, the complainant requested the imposition of a civil penalty against the respondents.  Section 1-206(b)(2), G.S., provides, in relevant part: 

 

…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

29.     It is found that the respondents denied the complainant’s rights under the FOI Act without reasonable grounds.  Nevertheless, it is found that the custodian or other official directly responsible for the denial has not been given an opportunity to be heard concerning the imposition of a civil penalty, and the Commission declines to hold such hearing. 

 

30.     The Commission in its discretion declines to impose 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.       Because the respondents did not retain the records they received from DAS, described in paragraph 2 of the findings of fact, the complainant should again request such records from DAS.

 

2.      Upon receipt of such records from DAS, the respondents shall forthwith redact the first names of correctional officers and provide the remainder without redaction to the complainant, pursuant to their obligations under the FOI Act.

 

3.      Henceforth, the respondents shall strictly comply with the Act’s disclosure and promptness requirements.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 23, 2011.

 

 

____________________________

S. Wilson

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:

 

Carnell Hunnicutt, Sr. #229589

Northern C I

287 Bilton Road

P.O. Box

Somers, CT 06071

 

Commissioner, State of Connecticut,

Department of Correction; and State of

Connecticut, Department of Correction

C/o Terrence M. O’Neill, Esq.

Assistant Attorney General

Office of the Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-179FD/sw/2/28/2011