In the Matter of a Complaint by                        Final Decision


Evelyn DeRosa d/b/a Linden Nursery School,




                against                   Docket #FIC 92-12


Marilyn Clark-Pellett, Hearing Officer, State of Connecticut, Department of Health Services and State of Connecticut, Department of Health Services,


                                Respondents                        February 26, 1992


                The above-captioned matter was heard as a contested case on January 21, 1992, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.


                2.  On September 24, 1991 the Linden Nursery School (hereinafter "school") was closed by the respondent Department of Health Services (hereinafter "Department") and the complainant's  license to operate the school was summarily suspended as a result of allegations that child abuse was occurring at the school.


                3.  On December 6, 1991, and January 9 and 10, 1992 the Department held hearings to determine whether the allegations of child abuse against the school warrant permanent revocation of the complainant's license.


                4.  It is found that the January 9 and 10, 1992 hearings (hereinafter "January hearings"), described in paragraph 3, above, were convened in public session but were closed to the


Docket #FIC 92-12                                               Page 2


public following a ruling on a motion by the respondent department to hold the hearings in executive session.  The hearing officer granted the motion on the basis that the entire subject of the charges related to information relative to child abuse.


                5.  By letter of complaint dated and filed January 10, 1992, the complainant appealed to the Commission alleging that the January hearings should have been convened and held entirely in public session.


                6.  At the hearing on this matter, the respondents moved to dismiss the appeal on the basis that the complainant failed to allege a violation of the Freedom of Information ("FOI") Act.


                7.  The complainant maintains that the closure of the January hearings constituted a violation of the open meetings requirements of 1-21, G.S.


                8.  It is found that the complainant has successfully alleged a violation of the FOI Act.


                9.  The respondents' motion to dismiss is accordingly denied.


                10.  It is found that the January hearings were conducted in accordance with a procedure that resulted from the settlement of a previous FOI complaint, docket #FIC 91-313, involving the respondents here and another complainant and which concerned the closure of the December 6, 1991 hearing.


                11.  It is found that pursuant to the settlement reached in docket #FIC 91-313, the respondents agreed that any future hearing concerning the school will be convened in public session.  According to that agreement, any future hearing may subsequently be closed if, following a summarization by the attorney calling any witness of the nature of the testimony to be given as it relates to the charges, the hearing officer rules that the testimony should be taken in executive session.


                12.  It is found that the respondent hearing officer closed the January hearings in accordance with the settlement agreement described in paragraph 11, above.


                13.  The respondents maintain that both federal and state law provide for broad confidentiality concerning information pertaining to child abuse allegations, and that pursuant to such laws, the hearings may be held in executive session.


Docket #FIC 92-12                                               Page 3


                14.  The respondents further maintain that prior decisions of this Commission have affirmed the confidentiality provisions pertaining to information relating to allegations of child abuse.


                15.  The complainants maintain that the respondents' hearings should be open to the public, with the exception that  any testimony given by a child may be conducted in executive session.  The complainants further maintain that with respect to testimony given by any person, other than a child, appropriate measures may be taken to keep the identities of children confidential.


                16.  It is found that pursuant to the federal Child Abuse Prevention and Treatment Act, 42 U.S.C.  5106, et seq., in order to receive federal grants for child abuse and neglect programs, the State of Connecticut must "provide for methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians...", 42 U.S.C.  5106a(b)(4).


                17.  It is found that the federal regulations implementing the federal Child Abuse Prevention and Treatment Act, provide:


                 (i) Confidentiality.  (1)  The state must provide

                by statute that all records concerning reports and

                reports of child abuse and neglect are confidential

                and that their unauthorized disclosure is a criminal

                offense.  45 CFR  1340.14(i)(1)


                18.  It is found that in accordance with the federal law mandates, the State of Connecticut has adopted legislation to ensure confidentiality of information pertaining to allegations of child abuse.


                19.  Section 17a-101(g), G.S., provides:


                "The information contained in [Department of

                Children and Youth Services ("DCYS")] reports and

                any other information relative to child abuse,

                wherever located, shall be confidential subject

                to such regulations governing their use and access

                as shall conform to the requirements of federal

                law or regulations." (Emphasis added.)


                20.  The Commission takes administrative notice of the record and its decisions in docket #FIC 84-18 and docket #FIC 88-9.


Docket #FIC 92-12                                               Page 4


                21.  It is concluded that the statutes set forth in paragraphs 16 through 19, above, constitute a broad grant of confidentiality with respect to information pertaining to allegations of child abuse.


                22.  It is concluded therefore that pursuant to 1-18a(e)(5) and 1-19(b)(10), G.S., the respondents did not violate the FOI Act when they heard the testimony concerning the allegations of child abuse in executive session.


                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.


                2.  Although the Commission is compelled by law to rule in the aforesaid manner, it sympathizes with the policy arguments presented by the complainant on the facts of this case.


Approved by Order of the Freedom of Information Commission at its regular meeting of February 26, 1992.



                                                Debra L. Rembowski

                                                Acting Clerk of the Commission


Docket #FIC 92-12                                               Page 5





Evelyn DeRosa d/b/a Linden Nursery School

c/o Attorney David T. Grudberg

Jacobs, Grudberg, Belt, & Dow

P.O. Box 606

New Haven, CT 06503


Marilyn Clark-Pellett,

Hearing Officer

State of Connecticut, Department of Health Services and

State of Connecticut, Department of Health Services

c/o Assistant Attorney General Thomas J. Ring

P.O. Box 120

Hartford, CT 06101



                                                Debra L. Rembowski

                                                Acting Clerk of the Commission