FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Martha Stone, JoNel Newman and Connecticut Civil Liberties Union Foundation,
against Docket #FIC 92-319
State of Connecticut Department of Mental Health,
Respondent August 11, 1993
The above-captioned matter was heard as a contested case on January 7, 1993, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. On January 11, 1993, the respondent submitted the document at issue in this case, described in paragraph 6 of the findings, below, to the Commission for in camera inspection. The pages of the documents are designated by the Commission as pages 92-319-1 through 92-319-71; the respondent submitted two copies of page 92-319-63.
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 1-18a(a), G.S.
2. By letter of complaint filed October 13, 1992 and postmarked October 9, 1992, the complainants appealed to the Commission, alleging that their August 19, 1992 request for a certain document had been denied.
3. It is found that the complainants by letter dated August 19, 1992 requested from the respondent a copy of the "Report of Mental Health Services Within the Department of Correction" prepared by the respondent's office.
4. It is found that the respondent denied the complainants' request during a telephone conversation during the week of September 14, 1992.
5. It is found that the document requested by the complainants is entitled: "State of Connecticut, DEPARTMENT OF MENTAL HEALTH TASK FORCE REPORT ON MENTAL HEALTH SERVICE DELIVERY IN THE DEPARTMENT OF CORRECTION, Penultimate Draft, August 13, 1992," (hereinafter, the "Report").
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6. It is found that the Report consists of the following sections:
a. a title page, described in paragraph 5, above (designated by the Commission as page 92-319-1).
b. a page listing the members and positions of the members of the mental health task force (page 92-319-2).
c. a table of contents (page 92-319-3).
d. "Executive Summary," which sets forth the background of the request by the Department of Correction (herinafter, "DOC")for the Report, the major strength of the current DOC mental health programming, the eight major weaknesses in the programming, and seven recommendations concerning the programming (pages 92-319-4 through 92-319-7).
e. "I. Introduction and Description of Task Force Activities," which describes how data were collected and how the Report was developed (page 92-319-8).
f. "II. Legal Requirements for Correctional Mental Health Services," which sets forth the body of case law which establishes the minimum standards for provision of mental health services for those incarcerated in jails and prisons (pages 92-319-9 through 92-319-16).
g. "III. Minimum Standards," which summarizes standards for correctional health care as defined by health and correctional associations (pages 92-319-17 through 92-319-20).
h. "IV. Overview of Connecticut's Correctional Mental Health Services," which estimates the mentally ill inmate population, and describes previous and current joint efforts between DOC and the respondent (pages 92-319-21 through 92-319-23).
i. "V. Description of Facility Mental Health Programs Reviewed by the Task Force," which describes the fourteen correctional facilities surveyed, including the size and general description; and the mental health facilities, services, and staff (pages 92-319-24 through 92-319-36).
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j. "VI. Findings," which describes the strengths and weaknesses found in DOC's mental health service system (pages 92-319-37 through 92-319-43).
k. "VII. Recommendations," which sets forth recommendations specific to the organization of service delivery, and recommendations specific to direct patient care (pages 92-319-44 through 92-319-58).
l. "Appendix A," a list of the DOC facility mental health programs reviewed by the task force, including the date or dates of visits (page 92-319-59).
m. "Appendix B," a list of DOC and respondent personnel interviewed by the task force, including each person's position and facility location (pages 92-319-59 through 92-319-60).
n. "Appendix C," a list of DOC documents reviewed by the task force (pages 92-319-61 through 92-319-63).
o. "Appendix D," a list of legal references for Section II (Legal Requirements for Correctional Mental Health Services) of the Report (pages 92-319-64 through 92-319-65).
p. "Appendix E," a description of the respondent's services to mentally ill inmates and ex-offenders (pages 92-319-66 through 92-319-69).
q. "Appendix F," comments on DOC draft procedures for restraints and soft restraints (pages 92-319-70 and 92-319-71).
7. It is found that the Report was prepared by the members of the respondent's mental health task force, appointed by the Commissioner of Mental Health, all of whom are staff members of the respondent.
8. It is found that the Report was solicited by the Commissioner of Correction because of his concerns over two inmate suicides and the use of strip cells to confine mentally ill inmates.
9. It is found that the purpose of the Report was to provide consultation to the DOC on how to meet the needs of its mentally ill inmate population.
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10. It is found that the task force gathered data, by site visit, interviews, and document review, on the mental health services at a total of thirteen correction centers and institutions and one youth institution.
11. It is found that each member of the task force developed a portion of the Report, which was then reviewed and approved by the entire task force.
12. It is found that the Report was then submitted in its current form by the chairman of the task force to the Commissioner of Mental Health, and then by him in the same form to the Commissioner of Correction and members of his staff.
13. It is found that the Report in its current form sets forth legal and mental health standards of care, compiles data with respect to mental health services provided at the surveyed facilities in the state, compares the actual services provided against the applicable legal and mental health standards as cited in the Report, and thereafter uses that analysis to make recommendations for the development or improvement of mental health programs and correctional facilities.
14. It is found that all of the information contained in the Report was submitted to the Commissioner of Correction, and was used in the deliberative process engaged in and expected to be engaged in by the Commissioner of Correction and the Commissioner of Mental Health.
15. It is found that the Commissioners of Correction and Mental Health and certain of their staff met to discuss their plans for the next steps to be taken following the transmittal of the Report.
16. It is found that, as of the hearing on this matter, no further action had been taken by either department on the Report.
17. It is concluded that the Report is a public record within the meaning of 1-18a(d) and 1-19(a), G.S.
18. The respondent maintains that the requested record is exempt from disclosure pursuant to 1-19(b)(1) and 1-19(c), G.S.
19. Section 1-19(b)(1), G.S. provides that disclosure is not required of "preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure ...."
20. It is found that the Report does not on its face appear to be a preliminary draft, containing six appendices and lacking the typical hallmarks of a preliminary draft, such as typographical errors, handwritten corrections or comments, or missing sections to be filled in later.
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21. The respondent nonetheless maintains that the Report is "preliminary" because the information contained in the Report has not been checked for accuracy or relevance.
22. It is also found, after in camera review of the Report, that there is nothing in the content of the Report that appears irrelevant, no data that is not pertinent to the Report's analysis and recommendations, and nothing that suggests to the Commission that it contains information whose accuracy could not have been readily checked at some phase of its drafting.
23. It is found that the Report is not simply a compilation of raw data to be later organized and analyzed, but rather a complete report that sets forth its purpose, the legal and mental health standards applicable to correctional facilities, an overview of Connecticut's correctional mental health services, a description of the correctional facility mental health programs reviewed by the task force, findings concerning problems, and recommendations for improvement.
24. It is found not credible that individual members of the task force would have written sections of the report for inclusion in the Report, that those sections would in turn have been reviewed by the entire task force, that the task force's chairman would have submitted the Report to the Commissioner of Mental Health, and that the Commissioner of Mental Health would in turn have submitted the Report to the Commissioner of Correction, all without having reviewed the information in the Report for relevance and accuracy.
25. It is found in conclusion that the Report does not reflect that aspect of the respondent's function that precedes formal and informed decision making; but that rather, on the contrary, the Report reflects the culmination of the respondent's well-informed review, analysis, and recommendations concerning mental health services provided by the Department of Correction.
26. The respondent also maintains that the Report is only a "working draft," and that subsequent drafts are necessary before the Report is completed.
27. It is found that the Report fulfills the objectives described in paragraph 9, above, and does not either by its own terms or the history of its creation and submission to DOC imply the necessity for additional drafts.
28. It is found that while subsequent reports might reflect subsequent steps that the respondent takes in its consultation with the DOC, the Report at issue reflects the completion of one step in that process:
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review of applicable legal and psychiatric standards, site visits, and recommendations based on that review and visits.
29. It is concluded that the Report is not a preliminary draft within the meaning of 1-19(b)(1), G.S.
30. The Commission notes that respondent maintained that the public interest in withholding the report clearly outweighed the public interest in disclosing it, because disclosure would have a chilling effect on future consultations, because the Report was misleading, and other policy considerations.
31. It is concluded, however, that it is unnecessary to examine the good faith of the respondent in making its determination that the public interest in withholding the document clearly outweighed the public interest in disclosing it, given the conclusion in paragraph 29, above.
32. The respondent also maintains that the Report is exempt from disclosure pursuant to 1-19(c), G.S.
33. Section 1-19(c), G.S., provides in relevant part:
Notwithstanding the provisions of subdivision (1) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decision and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency ....
34. It is found that the Report is not a preliminary draft of a memorandum within the meaning of 1-19(c), G.S.
35. It is also found that the Report, which has been submitted to two Commissioners, is not subject to revision prior to submission to or discussion among the members of a public agency, within the meaning of 1-19(c).
36. The respondent maintains that the Report is nonetheless not required to be disclosed by 1-19(c), G.S., because it is not a "report" within the meaning of that section, but merely a working draft in a series of contemplated drafts.
37. The term "report" is not defined in the Freedom of Information ("FOI") Act, and its meaning must therefore be determined from its commonly approved usage, pursuant to 1-1, G.S.
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38. The American Heritage Dictionary, Second College Edition (Houghton Mifflin Company: 1985) defines "report" as "an account presented usually in detail ... a formal account of the proceedings or transactions of a group."
39. It is found that the Report is a detailed and formal account of the research, review and analysis of the task force.
40. It is also found that the Report describes itself as a report.
41. It is concluded that the Report is a "report" within the meaning of 1-19(c), G.S.
42. The respondent also maintains that the recommendations contained in Section VII of the Report are not "recommendations" within the meaning of 1-19(c), G.S., but merely "suggestions."
43. The term "recommendation" is also not defined in the FOI Act, and its meaning must likewise be determined from its commonly approved usage, pursuant to 1-1, G.S.
44. The American Heritage Dictionary, Second College Edition (Houghton Mifflin Company: 1985) defines "recommend" as "[t]o counsel or advise (that something be done)."
45. It is found that the Report counsels or advises the DOC to take a broad range of actions, both as to the organization of service delivery, and the provision of direct patient care.
46. The testimony offered by the commissioner of mental health at the hearing in this matter, if credited, portrays the Report as merely a sketch, containing vague recommendations. It is found, however, after in camera review of the actual Report, that it is, in its substance and appearance, a completed document, and that its recommendations are extensive and quite specific.
47. It is therefore concluded that the Report contains "recommendations" within the meaning of 1-19(c), G.S.
48. The respondent also maintains that the Report does not comprise part of the process by which governmental decisions and policies are formulated, within the meaning of 1-19(c), G.S.
49. It is found, however, that the Report represents a completed step in a process: a survey of law and psychiatric standards, a survey of correction facilities, a report and analysis of that survey, and recommendations deriving therefrom.
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50. It is found that while subsequent reports may be drafted to reflect subsequent steps in the decision-making process, the Report represents completed documentation of one major step in that process.
51. It is also found that while the Report does not necessarily represent the termination of the anticipated consultative process, it represents a substantial part of the process by which the respondent and DOC expect to work together to formulate decisions as to the provision of mental health services to inmates.
52. It is also found that the respondent and DOC have not in fact gone beyond a single meeting concerning the Report, and the preparation and transmittal of the Report may actually represent the conclusion of, and not simply a step in, the consultative process.
53. It is therefore concluded that the Report comprises part of the process by which governmental decisions and policies are formulated, within the meaning of 1-19(c), G.S.
54. It is therefore concluded that the Report is required to be disclosed pursuant to 1-19(c), G.S., even if the Report were, as the respondent argues but the Commission finds otherwise, exempt from disclosure pursuant to 1-19(b)(1), G.S.
55. In their complaint, the complainants requested the imposition of civil penalties against the respondent.
56. The Commission in its discretion declines to impose a civil penalty against the respondent.
57. The Commission notes that the Report is a highly informative, thorough, frank and sympathetic assessment of DOC's provision of mental health services, and both the respondent and DOC are to be commended on their efforts to improve such services.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Within one week of the mailing of the notice of the final decision in this matter, the respondent shall provide to the complainants, at no cost, a copy of the Report described in paragraphs 5 and 6 of the findings, above.
2. Henceforth, the respondent shall strictly comply with the requirements of 1-19, G.S., with particular attention to the provisions of 1-19(c), G.S.
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Approved by Order of the Freedom of Information Commission at its regular meeting of August 11, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
Martha Stone, JoNel Newman and Connecticut Civil Liberties Union Foundation
32 Grand Street
Hartford, CT 06106
State of Connecticut, Department of Mental Health
c/o Asst. Atty. Gen. MacKenzie Hall
110 Sherman Street
Hartford, CT 06105
Debra L. Rembowski
Acting Clerk of the Commission