FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
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Paul J. Ganim and the Bridgeport Probate Court, |
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| Complainants | |||
| against | Docket #FIC 2010-328 | ||
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State of Connecticut, Office of the Chief Medical Examiner, |
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| Respondent | April 27, 2011 | ||
The above-captioned matter was heard as a contested case on December 1, 2010, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
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 March 10, 2010, the complainants submitted a request to the respondent seeking the following records and information regarding unclaimed bodies held in the respondent’s facility, as follows:
a. Names of all unclaimed bodies received by [the Office of the Chief Medical Examiner, hereinafter “OCME”];
b. Copies of Death Certificates of unclaimed bodies at OCME;
c. Names of the funeral homes, persons, or other entities in which custody of the unclaimed bodies were transferred to;
d. Dates upon which the funeral homes were contacted regarding taking custody of the remains of said unclaimed bodies;
e. Dates upon which said unclaimed bodies were transferred to the funeral homes;
f. A count of how many unclaimed bodies you currently have “on ice,” and the average length of time an unclaimed body will stay “on ice” in your facility; and
g. A copy of the list of funeral homes, persons or entities contacted who take custody of unclaimed bodies.
3. It is further found that, in addition to the records and
information detailed in paragraph 2, above, the complainants specifically
referenced the case of the decedent Mr. Myron Johnson, and raised concern
over the fact that it took more than ten months for someone to claim Mr.
Johnson’s remains.
4. It is found that, by letter dated March 22, 2010, the respondent acknowledged the complainants’ request, and further informed the complainants that “the only person who can provide this information in any sort of coordinated fashion is out of the country . . . and will return shortly.” It is further found that the March 22, 2010 correspondence presented a general overview of the process followed in the respondent’s office when a body is considered unclaimed and explained the rotation process for the burial of unclaimed bodies, including providing information on the number of private funeral homes that participate in such rotation. It is further found that the March 22, 2010 correspondence specifically addressed the process followed in the case of Mr. Johnson, including enclosing for the complainants the investigatory paperwork provided to the respondent by the Bridgeport Police Department (the “BPD”) upon the completion of the BPD’s investigation into the search for Mr. Johnson’s next of kin, the written notice provided to Mr. Johnson’s next of kin, and a copy of Mr. Johnson’s death certificate. It is further found that the March 22, 2011 correspondence provided the complainants with figures concerning unclaimed individuals at the time of the last meeting of the Commission on Medicolegal Investigations, as well with the figures reported two months prior. Finally, it is found that this correspondence indicated that the respondent would proceed to compile the detailed information requested by the complainants.
5. It is found that, by letter dated April 6, 2010, the complainants replied to the respondent’s March 22, 2010 correspondence, requesting that the respondent inform them when the complainants could expect to receive the information they had requested. It is further found that the April 6, 2010 correspondence further referenced the case of the decedent Mr. John Back and raised questions with regard to the time during which the respondent kept Mr. Back’s remains in its possession.
6. It is found that, by letter dated April 13, 2010, the respondent replied to complainants’ April 6, 2010 correspondence. It is found that the April 13, 2010 correspondence specifically addressed the process followed in the case of Mr. Back, including providing to the complainants the date Mr. Back was brought to the OCME, the date the OCME contacted the BPD requesting an investigation into Mr. Back’s next of kin, the date the BPD reported back to the OCME regarding who should be contacted, the date a death certificate was requested and the date that Mr. Back’s remains were claimed.
7. It is found that, by letter dated May 10, 2010, the complainants replied to the respondent’s April 13, 2010 correspondence. It is found that the May 10, 2010 correspondence specifically referenced the case of the decedent Mr. James Pussuto and raised questions with regard to process and the time it took for Mr. Pussuto’s next of kin to be notified about Mr. Pussuto’s death. At this time, it is found that the complainants requested any available information that the respondent could provide them with regard to “these matters” and incorporated by reference their request for records and information detailed in paragraph 2, above.
8. It is found that, by letter dated May 17, 2010, the complainants again corresponded with the respondent. It is found that in this correspondence the complainants specifically referenced the case of the decedent Mr. Moises Mendez and raised questions with regard to the process and the time it took for Mr. Mendez’s next of kin to be notified about Mr. Mendez’s death. At this time the complainants requested any available information that the respondent could provide them with regard to this matter and incorporated in the May 17, 2010 request their previous requests for records and information sent by letters dated March 10, 2010, April 6, 2010 and May 10, 2010, which requests are referenced respectively in paragraphs 2, 3, 5 and 7, above.
9. By letter dated May 17, 2010 and filed May 20, 2010, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by not complying with their request for records.
10. It is found that, by separate letters both dated May 25, 2010, the respondent replied to the complainants’ May 10, 2010 correspondence and May 17, 2010 correspondence. It is found that May 25, 2010 letters specifically addressed the process followed in the case of Mr. Pussato and in the case of Mr. Mendez, including providing to the complainants a list of the dates relevant to the processing of Mr. Mendez and a description of what occurred on such dates, (cf. ¶ 6, above), as well as some limited information about what the BPD informed the OCME concerning Mr. Pussuto’s next of kin.
11. By motion dated September 20, 2010 and filed September 22, 2010, the respondent moved to dismiss the complaint on the ground that the issue of whether the complainants are entitled to the records they seek is a matter of clearly decided statutory and case law. The respondent contended that, based on settled law, the complainants do not have a legitimate interest in the requested records, whether such request is analyzed from the perspective that the complainants are a “public authority” or “members of the general public.” The complainants countered that, not only had the respondent failed to show that the Commission lacks jurisdiction over the complaint, the correspondence between the parties reveals that the complainants’ requests were never fulfilled and dismissing the complaint would be contrary to the fundamental principles upon which the FOI Act was created. After hearing argument on the motion and the objection from both sides, the motion to dismiss was denied.
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 that:
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 . . . receive a copy of such records in accordance with section 1-212.
14. Section 1-212(a)(1), G.S., provides in relevant part that:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
15. It is found that, to the extent that the respondent maintain the records described in paragraph 2, above, and further referred to in paragraphs 3, 7 and 8, above, the records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
16. The respondent contends that the requested records are exempt from disclosure pursuant to §19a-411, G.S., and §7-62(d)(a), G.S.
17. Section 19a-411, G.S. provides, in relevant part, that:
(a) The Office of the Chief Medical Examiner shall
keep full and complete records properly indexed, giving the name, if known,
of every person whose death is investigated, the place where the body was
found, the date, cause and manner of death and containing all other relevant
information concerning the death and a copy of the death certificate. The
full report and detailed findings of the autopsy and toxicological and other
scientific investigation, if any, shall be a part of the record in each
case. The office shall promptly notify the state's attorney having
jurisdiction of such death and deliver to the state's attorney copies of all
pertinent records relating to every death in which further investigation may
be advisable. Any state's attorney, chief of police or other law enforcement
official may, upon request, secure copies of such records or other
information deemed necessary by such official for the performance of his or
her official duties. (Emphasis supplied).
(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. Any person may obtain copies of such records upon
such conditions and payment of such fees as may be prescribed by the
[Commission on Medicolegal Investigations], except that no person with a
legitimate interest in the records shall be denied access to such records,
and no person may be denied access to records concerning a person in the
custody of the state at the time of death….. (Emphasis supplied).
18. In Galvin v. Freedom of Information Commission, the Supreme Court determined that §19a-411, G.S., is a state statute that falls within the “except as otherwise provided” provision of §1-210(a), G.S. See Galvin, 201 Conn. at 462. The Galvin court recognized that a request for records from the OCME required “the reconciliation of the provisions of the [FOI Act and §19a-411, G.S.], each of which deals with the public’s right of access to records kept on file by public agencies.” Id. at 454. The court determined that the statutory guidelines of §19a-411, G.S., “impose stricter limitations on the disclosure of such records than the [FOI Act] permits.” Id.
19. The Galvin court further found that §19a-411, G.S., set forth three classes of record seekers. See Galvin, 201 Conn. at 457. The first class included “[a]ny state’s attorney, chief of police or other law enforcement official.” Id. The court stated that such an official “may, upon request, secure copies of such records or other information deemed necessary by him to the performance of his official duties.” Id. (Emphasis in original). The court found that the second class of record seekers included “public authorities, professional, medical, legal or scientific bodies or universities or similar research bodies.” Id. Within this category, the court stated that access to records kept by the medical examiner’s office is “in the discretion of the commission [on medicolegal investigations]. . . upon which conditions and payment of fees as may be prescribed by the commission.” Id. (Emphasis in original). Finally, the court found a third class of record seekers that included members of the general public. In this regard, the court stated that “autopsy reports and other investigative reports may be made available to the public only through the office of the chief medical examiner and in accordance with. . . the regulations of the commission.” Id. at 458. (Emphasis in original).
20. In the opposition to the respondent’s motion to dismiss, complainant Ganim argues that, as a probate court judge, he is part of the first class of record seekers—to wit, a law enforcement official. Respondent Ganim also argues that he makes his request as a member of the second class of record seekers, as well as a member of the general public.
21. It is found that a probate court judge is not a “law enforcement official,” as such term of art is used in §19a-411(a), G.S.
22. To the extent that complainant Ganim is a “public official” conducting research pursuant to §19a-411(b), G.S., it is found that the statutory scheme of §19a-411, G.S., permits the Commission on Medicolegal Investigations, in its “discretion,” to disclose records and to impose the conditions and payment of fees that the commission believes appropriate. See §19a-411(c), G.S. It is found that the respondent provided all of the records to the complainants with regard to the four decedents identified in the complainants’ correspondence. See ¶¶ 3, 5, 7, and 8, above. Based on the respondent’s testimony, it is further found that, had the complainants requested records on unclaimed bodies within the judicial district of Bridgeport—as opposed to all unclaimed bodies in Connecticut, see ¶2a, above, the respondent would have done its best to locate these records and provide them to the complainants. Inferentially, it is found that the respondent determined that these complainants, as public officials from the judicial district of Bridgeport, were limited to records relevant to unclaimed bodies originating from that judicial district. See §45a-98(a), G.S. (stating in relevant parts that “[c]ourts of probate in their respective districts shall have the power to (1) grant administration of intestate estates of persons who have died domiciled in their districts. . . ”); see also §45a-318(e) and (f), G.S. (stating in relevant part that “[t]he court of probate for the district of the domicile or residence of a deceased person shall have jurisdiction to hear and decide any issue regarding the custody, control or disposition of the deceased person's body, upon the petition of any individual designated by the deceased person pursuant to subsection (a) of this section, the individual entitled to custody and control under subsection (c) of this section if no designation is made pursuant to subsection (a) of this section, the first selectman, chief executive officer or director of health of the town in which the deceased person's body is being held, or the funeral director or any other person or institution holding the deceased person's body, and upon such notice to interested parties as the court shall determine” and “[t]his section shall not . . . (2) affect the powers and duties of the Chief Medical Examiner under the provisions of sections 19a-406 to 19a-408, inclusive. . . . ”).
23. The Commission finds that the condition imposed by the respondent on the complainants’ request for records as “public officials” was reasonable.
24. It is further found that, to the extent that complainant Ganim is making the request as a member of the general public, the respondent’s regulations control the release of records to him. See Galvin, 201 Conn. at 454 (stating that statutory guidelines of §19a-411, G.S., “and the administrative regulations which they expressly authorize, impose stricter limitations on the disclosure of such records” than the FOI Act).
25. Regulations of Connecticut State Agencies, §§19a-401-12(a) and (c)(2) provide, respectively, and, in relevant part, as follows:
(a) Reports of investigations and of autopsies are prepared on standard forms issued by the Office of the Medical Examiner. The original reports of investigations, reports of hospital deaths, and of authorized autopsies are transmitted to the Office of the Medical Examiner and copies are obtainable only from the Chief Medical Examiner. The standard forms utilized by the Office of the Medical Examiner include: (1) telephone notice of death; (2) report of investigation; (3) hospital report of death; (4) identification form; (5) autopsy report; (6) receipt of evidence.
. . .
(c) Inquiries and requests for copies of records. Inquiries concerning a death may be made in person or by letter to the Chief Medical Examiner, Office of the Medical Examiner, 11 Shuttle Rd., Farmington, Connecticut 06032. Copies of reports prepared by personnel of the Office of the Medical Examiner, Assistant Medical Examiners and designated pathologists and other laboratories where pertinent, or detailed findings of other scientific investigations, are furnished upon payment of fees and upon conditions established by the Commission on Medicolegal Investigations. Copies of such reports may be obtained as follows:
. . . .
(2) If the requester of the records is a member of the general public, he or she may obtain access to such records if the person has a legitimate interest in the documents and no court has issued an order prohibiting disclosure pursuant to section 19a-411(c) of the Connecticut general statutes.
26. It is found that, on the OCME website, the respondent’s Commission on Medicolegal Investigations defines a person with a legitimate interest as follows:
In accordance with the regulations of the Commission on Medicolegal Investigation, the complete records of all investigations are made available to the family of the deceased, to any federal state or municipal governmental agency or public health authority [that] investigate death; to insurance companies with a legitimate interest in the death; to all parties in civil litigative proceedings, and to treating physicians. In addition, records may be made available to any other individual with the written consent of the family or by court order. . . .
27. Based on the foregoing, it is found that the complainant is not a person with a “legitimate interest,” as such term of art has been defined by the Commission on Medicolegal Investigations.
28. The respondent also contends that, to the extent that the complainants requested death certificates, §7-62(d)(a), G.S., controls the release of such records. Specifically, the respondent contends that death certificates may be accessed only from a registrar of vital statistics, pursuant to §§7-36, G.S., and 7-51a, G.S.
29. While the respondent is required to maintain death certificates pursuant to §19a-411(a), G.S., and it is not at all clear that a record requester is not permitted to seek a copy of a death certificate from the respondent, it is found that, with regard to the four decedents specifically identified, the respondents have supplied the complainants with all of the records in their possession. Based on the testimony of the respondent, it is further found that the respondent would not refuse to provide the complainants death certificates or death certificate information if the complainants requested such information for decedents originating from the judicial district of Bridgeport. See ¶22, above. As stated above, the Commission has determined that the imposition of this condition on the complainants’ request is reasonable.
30. Based on the foregoing, it is concluded that the respondent did not violate the FOI Act as alleged by the complainants.
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 regular meeting of April 27, 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:
Paul J. Ganim and the Bridgeport
Probate Court
C/o Paul J. Ganim, Esq.
Bridgeport Probate Court
202 State Street
Bridgeport, CT 06604
State of Connecticut, Office of the
Chief Medical Examiner
C/o Jane D. Comerford, Esq.
Office of the Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141
___________________________
S. Wilson
Acting Clerk of the Commission
FIC/2010-328FD/sw/5/2/2011