FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 21, 2011, at which time the complainant and the 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, using Department of Correction (“DOC”) forms, the complainant made a records request dated December 29, 2010 for a printed transcript and audio recording of a monitored phone call made by the complainant on August 17, 2010 at 7:13 p.m. (the “requested records” or sometimes herein the “records”). The complainant further requested that the records be preserved for a pending case in federal court.

 

3.         It is found that, by letter dated January 6, 2011, respondent Lt. Alexander denied the request, citing the absence of “a valid search warrant or subpoena”.

 

4.         By letter dated January 20, 2010 [sic] and filed with the Commission on February 11, 2011, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to comply with his records request. The complainant requested the imposition of civil penalties.

 

5.          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. 

 

6.          Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

…

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

7.       Sections 1-210(b)(3)(d) and 1-210(b)(18), G.S., provide, respectively, in relevant parts that nothing in the FOIA shall require the disclosure of:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … investigatory techniques not otherwise known to the general public….

 

…

 

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 ….

 

8.       There has been no previous FOIC decision concerning records related to monitored prisoner telephone calls. There is case law holding that it is constitutional for corrections officers to monitor and record prisoner calls from “collect call only” telephones. Washington v. Meachum, 238 Conn. 692 (1996). 

 

9.      At the hearing, the respondents claimed that the requested records were exempt pursuant to both §1-210(b)(3)(d) and §1-210(b)(18), G.S. The respondents also stated that any appropriate remedy could be granted by the federal court. The hearing officer suggested, but did not order, that the respondents file in camera records in support of their claim of exemption. The respondents declined to file in camera records, stating that the respondent Department did not want to disclose whether or not it maintains and had reproduced a record of the relevant telephone conversation within its system. Counsel for the respondents also stated that no transcript of the conversation exists.

 

10.  At the hearing, the respondents also claimed to have very specialized investigations to monitor prisoner telephone calls, involving special training of handpicked staff members who become the best staff members at the respondent Department. (The respondents claimed that these investigations use the respondents’ “deepest secrets”, investigatory techniques which, if disclosed, would reveal “how we do what we do”). The Department stated that their investigatory techniques extend substantially beyond monitoring and recording telephone calls. Finally, the respondents maintained that the results of these investigatory techniques are shared with law enforcement agencies, because monitoring prisoner contact with persons outside correctional facilities is integral to preventing new crime.       

 

11.  It is concluded, however, that the respondents’ testimony concerning investigatory techniques was so general and conclusory that they failed to prove “investigatory techniques not otherwise known to the general public”, pursuant to §1-210(b)(3)(d), G.S. A statement asserting the existence of such techniques does not constitute proof of their existence.

 

12.  The Commission takes administrative notice of its decision in Docket #FIC 2010-093; John C. Barletta v. Kimberly Weir, Acting Director of Security, State of Connecticut, Department of Correction; Angel Quiros, Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction. This decision found that the complainant was incarcerated for murder, that while incarcerated in 1999 he also murdered his cellmate, and that he struck a warden in the face with a razor blade in 2000. As a result of this last assault, the complainant was transferred to the Maryland correction system. In Maryland, he assaulted an African-American gang member, and Maryland corrections officials transferred the complainant back to Connecticut. It was also found that the complainant has tattoos of both a Nazi and a Confederate flag on his body, as well as other symbols generally associated with Aryan and white supremacy.

 

13.   It is also found that the complainant has had a generally poor disciplinary record, with forty-five disciplinary reports since 1992.  These reports include six reports of assault on Department staff members. As of the hearing date, the complainant was in indefinite administrative segregation at Northern Correctional Institution, having been in administrative segregation for two years. He is serving multiple life sentences without parole.

 

14.  It is further found that the complainant executed an acknowledgement that, pursuant to regulations, his outgoing calls from “collect call only” telephones can be monitored and shall be recorded. Moreover, all “collect call only” phones for inmate calls in correctional facilities have signs above them indicating that telephone calls will be monitored. (Inmates may make prearranged telephone calls to their attorney, without monitoring or recording.)

 

15.  The relevant disciplinary report states and it is found that, during the phone call on August 17, 2010, the complainant made threats concerning an unidentified staff member. The complainant stated: “I catch him, it’s on…” and “when I [expletive deleted] stab that [expletive deleted] dude, what they going to do.”  

 

16.  At the hearing, the complainant argued that he was only seeking disclosure of his own words, which he could still repeat almost word for word from memory. He also argued that his language during the phone call on August 17, 2010 was simply a description of a confrontation which had occurred prior to August 17, 2010. However, the quoted language anticipates the future and is not a description of past events.

 

17.  Based upon the complainant’s history of homicide and assault, together with the specific language used during the August 17, 2010 conversation, it is concluded that the Commissioner of DOC had reasonable grounds to believe that disclosure of the requested records may result in a safety risk, including the risk of harm to a person, or a disorder in a correctional institution or facility under the supervision of DOC, within the meaning of §1-210(b)(18), G.S. The risks associated with disclosing the complainant’s own conversation with a member of the public may not be entirely predictable, and the complainant’s behavior has been so extreme that it is reasonable to be highly risk adverse.

 

18.   It is concluded that the requested records are exempt from mandatory disclosure pursuant to §1-210(b)(18), G.S. It is finally concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., by declining to disclose the requested records to the complainant. Accordingly, there is no need to address the issue of civil penalties in this matter.

 

19.  The federal court can perform its function of enforcing the complainant’s constitutional rights, including questions surrounding his confinement in administrative segregation. Of course, the court will review whatever evidence it considers relevant. Indeed, the complainant stated that, in his pro se federal case, he currently is seeking a subpoena for the requested records.

 

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

1.       The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 12, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

John Barletta #219324

Northern Correctional Institution

P.O. Box 665

Somers, CT  06071

 

Lt. Alexander, State of Connecticut, Department of Correction, Security Division;

and State of Connecticut, Department of Correction

c/o Nancy Kase O’Brasky, Esq.

Department of Correction

Legal Affairs Unit

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-065/FD/cac/10/12/2011