FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on June 17, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts 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 by letter dated December 10, 2010, the complainant made a request to the respondent warden for the following records:

 

a.       “(7) pages of Latin King material used as evidence for disciplinary report #RCC 10 11 036;

b.      Incident report of Lieutenant Dougherty for the above mentioned disciplinary report;

c.       Advocate Investigator form for the above mentioned disciplinary report; and

d.      Disciplinary Investigator’s report for the above mentioned disciplinary report.”

 

3.            It is found that by letter dated December 16, 2010, the respondents acknowledged receipt of the complainant’s request and informed him that his request was being reviewed. 

 

4.            It is found that by letter dated January 10, 2011, and received on January 14, 2011, the complainant appealed to this Commission alleging that the respondents had violated the Freedom of Information (“FOI”) Act by failing to comply with his records request.  The complainant requested that this Commission impose the maximum civil penalty against the respondents.

 

5.            It is found, however, that on June 16, 2011, the respondents provided the complainant with a redacted copy of the record described in paragraph 2b and with a copy of the records described in paragraph 2c and 2d, above. 

 

6.            At the hearing in this matter, the complainant narrowed his complaint to the record described in paragraph 2a, above, and to the redactions made in the first three lines of the second paragraph of the third page of the record described in paragraph 2b, above, which page was marked as Joint Exhibit 1 in the administrative record (hereinafter “the redactions in Joint Exhibit 1”). 

 

7.            Therefore, it is found that the only records that remain at issue in this matter are: the record described in paragraph 2a; and Joint Exhibit 1.

 

8.            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. 

 

9.            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 . . . receive a copy of such records in accordance with section 1-212. 

 

10.         Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

11.         It is found that the record described in paragraph 2a, above, and Joint Exhibit 1 are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.

 

12.         However, §1-210(b)(18), G.S., provides, in relevant part, that "[n]othing in the Freedom of Information Act shall be construed to require 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.... 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 inmates are not authorized to have any material in the prison facility that relates to any security risk group which group is defined as “a group of inmates, designated by the Commissioner [of DOC], possessing common characteristics, which serve to distinguish them from other inmates or groups of inmates and which as a discrete entity, jeopardizes the safety of the public, staff or other inmate(s) and/or the security and order of the facility.”[1]

 

14.         It is found that the “Latin Kings” have been designated by the Commissioner as a security risk group and therefore have been designated as a group of inmates which as a discrete entity, jeopardizes the safety of the public, staff or other inmate(s) and/or the security and order of the facility.

 

15.         The respondents contended at the hearing that the record described in paragraph 2a, above, contains information related to the Latin Kings.  The respondents contended that the record included Latin King related codes, letters describing that group’s lifestyle and identified individuals as members of that group.  The respondents further contended that records containing such information are contraband, pursuant to Administrative Directive 6.10(9), and therefore were confiscated from the complainant and are being withheld from disclosure.

 

16.        In his post hearing brief, the complainant provided this Commission with the decision in United States v. Felipe [2] that describes some of the racketeering activities of the Latin Kings which included murder, attempted murder and other violent and illegal activities.  The decision also describes how the leadership of the organization was maintained from within the prison through correspondence with, visits from, and by sending written directives to, various members of the organization.  The decision also describes the murder of several inmates by another inmate because they were allegedly members of the Latin Kings. 

 

17.        It is found that the decision provided by the complainant paints a picture of an organization that has been operated and controlled from within the prison system and that has engaged in activities that jeopardizes the safety of the public, staff or other inmate(s) and/or the security and order of the facility.  It is apparent from the decision that even being identified as a member of the Latin Kings is a risk to the safety and security of an inmate.

 

18.         At the hearing on this matter, the respondents offered testimony from a Lieutenant Dougherty, who is a Security Risk Group Unit manager and who has received specialized training to monitor, assess and identify inmate activity that suggests the existence of a security risk group. 

 

19.         At the hearing on this matter, Lieutenant Dougherty testified, and it is found, that he reviewed the records described in paragraph 2a, above, and determined, based on his training and experience, that the record pertains to a security risk group – specifically the Latin Kings and included Latin King related codes, letters describing that group’s lifestyle and identified individuals as members of that group.

 

20.         It is found therefore that based upon the contents of the record and the history of the Latin Kings, the Commissioner of Correction has reasonable grounds to believe that disclosure of the record, described in paragraph 2a, above, may result in a safety risk, within the meaning of §1-210(b)(18), G.S., and consequently the respondents did not violate the FOI Act by failing to provide the record to the complainant. 

 

21.         With respect to Joint Exhibit 1, the respondents also contended that disclosure of the redactions in Joint Exhibit 1 would disclose the names or code names of individual members of a security risk group, which group includes the Latin Kings.  The respondents contended that such information is exempt from disclosure pursuant to §1-210(b)(18), G.S.

 

22.         At the hearing on this matter, Lieutenant Dougherty also testified, and it is found, that after his review of Joint Exhibit 1, he made the redactions because he determined, based on his training and experience, that the redacted portions of that record pertain to a security risk group and information about inmates who had been identified as members of that security risk group which information included their names or code names.

 

23.         It is also found that disclosure of the redacted portions of Joint Exhibit 1 would disclose the unit assignments of inmates in the prison facility.

 

24.         It is concluded that because the redactions in Joint Exhibit 1 would disclose the names or code names of inmates who are members of a security risk group, and their assignment at the correctional institution or facility, such reactions are exempt from disclosure pursuant to §1-210(b)(18)(G), G.S., and that the respondents did not violate the disclosure provisions of §§1-210 and 1-212, G.S., as alleged by the complainant.

 

25.         Notwithstanding Lieutenant Dougherty’s credible testimony, the complainant requested that this Commission conduct an in camera review of the records described in paragraph 7, above.

 

26.         However, based on the facts and circumstances of this case and the particularized testimony of Lieutenant Dougherty with respect to the content and nature of the requested records, an in camera inspection is not necessary for a fair resolution of this case.

 

27.         The complainant’s request for the imposition of a civil penalty is denied.

 

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 December 14, 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:

 

Victor J. Velasco #213065

Northern Correctional Institution

287 Bilton Road

P.O. Box 665

Somers, CT  06071

 

Deputy Warden Cyr, State of Connecticut, Department of Correction,

Corrigan-Radgowski Correctional Center; and State of Connecticut,

Department of Correction

c/o James E. Neil, Esq.

State of Connecticut

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-025/FD/cac/12/16/2011