FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION UPON
REMAND
Kathryn P. Sullivan,  
  Complainant  
  against   Docket #FIC 1998-384

Police Department, Town of

Groton,

 
  Respondent February 9, 2005
       

            

The above-captioned matter was heard as a contested case on January 25, 1999, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony and argument on the complaint.  The Commission initially decided this matter based upon the evidence presented in the record and the exemptions in the Freedom of Information Act claimed by the respondent during the January 25, 1999 hearing.  On July 14, 1999 the Commission issued a final decision, wherein the Commission ordered partial disclosure of the requested records.  The respondent appealed the final decision of the Commission.  By order of the Superior Court (Town of Groton v. Freedom of Information Commission, CV 00-496886, Feb. 13, 2001, Dyer, J.), this matter was remanded to the Commission to conduct further proceedings relative to the applicability of 17a-101k(a), G.S., in this case.  Accordingly, the parties were ordered to submit briefs to the Commission and, if desired, request further evidentiary proceedings.  Both parties subsequently submitted briefs and neither party requested further evidentiary proceedings.  On February 28, 2002, a Hearing Officer’s Report was issued, with a recommendation that the complaint be dismissed, concluding that 17a-101k(a), G.S., operated to exempt the records at issue from mandatory disclosure.  At its March 13, 2002, regular meeting, the Commission voted to reject the Hearing Officer’s Report of February 28, 2002, and remanded the matter to the hearing officer for preparation of a new Hearing Officer’s Report further addressing the applicability of  17a-101k(a) and in addition addressing 1-210(b)(3)(F), G.S., and any other pertinent statutes.  Both parties subsequently submitted supplemental briefs.  On October 31, 2003, a Hearing Officer’s Report was issued, with a recommendation that the complaint be dismissed, concluding that 17a-101k(a), G.S., operated to exempt the records at issue from mandatory disclosure.  At its December 11, 2003, regular meeting, the Commission voted to reject the Hearing Officer’s Report of October 31, 2003.   In view of the conclusion reached below in this matter, with respect to the application 17a-101(k), G.S., the Commission will provide notice of this matter and the proceedings with respect thereto to the State of Connecticut, Department of Children and Families.

 

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.  By letter dated November 18, 1998, the complainant requested of the respondent a copy of the investigative report regarding a matter in which the complainant’s minor child was allegedly the victim of a serious crime (hereinafter “the report”). 

 

            3.  In response, the complainant was provided with a copy of a letter from the respondent’s attorney to the respondent wherein such attorney opined that the report should not be released, as it was exempt from mandatory disclosure. 

 

            4.  By letter dated December 10, 1998, and filed with the Commission on December 15, 1998, the complainant alleged that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by denying her a copy of the report. 

 

            5.  Section 1-210(a), G.S., in relevant part states:

 

[e]xcept 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. 

 

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

 

7.  The respondent submitted a copy of the report to the Commission for in-camera inspection, which copy has been identified as in-camera document #s 1998-384-1 - 1998-384-48, inclusive. 

 

8.  With respect to the applicability of 17a-101k(a), G.S., that section provides in relevant part that:

 

information contained in [certain reports to the Department of Children and Families of alleged child abuse] and any other information relative to child abuse, wherever located, shall be confidential subject to such statutes and regulations governing their use and access as shall conform to the requirements of federal law or regulations.  Any violation of this section or the regulations adopted by the commissioner under this section shall be punishable by a fine of not more than one thousand dollars or imprisonment for not more than one year.

 

9.   It is found that the report constitutes “information relative to child abuse, wherever located” within the meaning of 17a-101k(a), G.S.

 

10.   The respondent contends that 17a-101k(a), G.S., exempts the report from the mandatory disclosure provisions of 1-210(a) and 1-212(a), G.S., and mandates confidentiality of information relative to child abuse, unless other statutes or regulations that conform to the requirements of federal law or regulations specifically apply to allow use and access. 

 

11.   The complainant contends that 17a-101k(a), G.S., and 1-210(b)(3)(F), G.S., must be read together as a consistent body of law, and that the legislature gave the Commission authority under 1-210(b)(3)(F), G.S., to order the disclosure of police records regarding risk of injury to children, except the names and addresses of the victim.  The complainant also contends that both 1-210(b)(3)(F), and 17a-101k(a), G.S., when read together, are consistent in that both statutes seek to preserve the confidentiality of the names and addresses of the victims of injury, or risk of injury, or impairing of morals, of children or attempts thereof, contained in police reports.  The complainant further contends that a reading of 17a-101k(a), G.S., to exempt the entire requested record would effectively preempt the authority the legislature has given the Commission pursuant to 1-210(b)(3)(F), G.S., to order the disclosure of certain police reports, except names and addresses of certain victims.  

 

            12.  Pursuant to the regulations of the Department of Children & Families, “a parent…of a child named in a report or record” is eligible for routine access information otherwise made confidential by 17a-101k(a), G.S.  Section 17a-101-6(a)(2)(B), Regulations of Connecticut State Agencies.

 

13.  The federal Child Abuse Prevention and Treatment Act provides that, in order to receive grants for child abuse and neglect prevention and treatment programs, a state must have in effect a law that includes “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)(2)(A)(v).   Under federal law, states must have in effect a law that provides that individuals who are the subject of child abuse reports have a right to view such reports.  42 U.S.C. 5106a(b)(2)(A)(v)(I).  

 

14.  It is found that the confidentiality provisions of 42 U.S.C. 5106a(b)(2)(A)(v) and 17a-101k(a), G.S., are clearly designed to protect the interests of the child, and that in this case those interests would not be served by withholding access to the report.

 

15.  It is further found that since the parent of the child is the requester in this case, there is an implied waiver of the confidentiality provisions set forth in 42 U.S.C. 5106a(b)(2)(A)(v) and 17a-101k(a), G.S.  This finding is bolstered by the fact that the regulations set forth in 17a-101-6, Regulations of Connecticut State Agencies, contemplate the Department of Children & Families’ disclosure of confidential information pursuant to 17a-101k(a), G.S., to the parent of the child. 

 

16.  Accordingly, it is concluded that 17a-101k(a), G.S. , does not prevent disclosure of the requested record to the complainant.  

 

17.  At the January 25, 1999 hearing, the respondent maintained that the report is exempt from mandatory disclosure pursuant to 1-210(b)(3)(G), G.S.

 

            18.  Section 1-210(b)(3)(G), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require 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 . .  (G) uncorroborated allegations subject to destruction pursuant to section 1-216 . . .

 

            19.  Section 1-216, G.S., in turn, provides:

 

[e]xcept for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records.  If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.

 

            20.  It is found that the report is a record of a law enforcement agency not otherwise available to the public and was compiled in connection with the detection or investigation of crime, within the meaning of 1-210(b)(3), G.S.

 

            21.  Notwithstanding the respondent’s contention to the contrary, however, it is found that, at the time of the complainant’s request described in paragraph 2, above, the allegations described therein had been corroborated. 

 

            22.  It is therefore concluded that 1-210(b)(3)(G), G.S., does not provide a basis to withhold the report. 

 

            23.  The respondent also maintained at the January 25, 1999 hearing on this matter that 1-210(b)(3)(F), G.S., exempts the following portions of in-camera document #s:

 

                         1998-384-1, lines 6-9;

 1998-384-8, lines 5-7;

 1998-384-10, lines 10-14;

 1998-384-11, lines 12-16;

 1998-384-19, lines 1-25;

 1998-384-20, lines 1-32;

 1998-384-34, lines 8-16;

 1998-384-46, line 16; and

 1998-384-47, lines 15-16. 

           

24.   Section 1-210(b)(3)(F), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require 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 . .  (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof…

 

25.   Section 1-210(b)(3)(F), G.S., permits the nondisclosure of the names and addresses of certain victims, as set forth in 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, 53-21, G.S.

 

26.  Sections 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b and 53a-73a, G.S., are statutes in the penal code defining, respectively, sexual assault in the first degree; aggravated sexual assault in the first degree; sexual assault in the second degree; sexual assault in the third degree; sexual assault in the third degree with a firearm; and sexual assault in the fourth degree.

 

27.  Section 53-21(a), G.S., provides that:

 

[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a

child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complies with the provisions of chapter 803, shall be guilty of a class C felony for a violation of subdivision (1) or (3) of this subsection and a class B felony for a violation of subdivision (2) of this subsection.

 

28.  It is concluded that disclosure of the portions of the records described in paragraph 23, above, as well as any other references to the names of alleged victims throughout the report, would not be in the public interest and that such portions of records and references are exempt from mandatory disclosure pursuant to 1-210(b)(3)(F), G.S.  It is further concluded that the respondent did not violate 1-210(a) and 1-212(a), G.S., by denying the complainant copies of portions of such records and references. 

 

29.  The respondent further maintained at the January 25, 1999 hearing on this matter that 1-210(b)(3)(B), G.S., exempts portions of the following in-camera document #s:

 

                         1998-384-4, lines 1-35; and

 1998-384-37, lines 1-36.  

 

            30.   Section 1-210(b)(3)(B), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require 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 . . (B) signed statements of witnesses…

 

            31.  It is found that the portions of the records described in paragraph 29, above, are signed statements of witnesses within the meaning of 1-210(b)(3)(B), G.S., the disclosure of which would not be in the public interest, and it is concluded that such provision exempts such portions of the records from mandatory disclosure.

 

32.  It is also found that in-camera document #s: 1998-384-5, 6, 7, 8, 35, and 38, are signed statements of witnesses within the meaning of 1-210(b)(3)(B), G.S., and it is concluded that pursuant to such provision, they are likewise exempt from mandatory disclosure. 

 

            33.  It is concluded that the respondent did not violate 1-210(a) and 1-212(a), G.S., by denying the complainant copies of the records described in paragraphs 29 and 32, above.

 

34.  However, it is concluded that the respondent violated the FOI Act by denying the complainant a copy of the report, with the exception of those portions concluded to be exempt from disclosure in paragraphs 28, 31 and 32, above.

 

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

 

            1.  The Commission’s decision in this matter, dated July 14, 1999, is hereby vacated. 

 

2.  The respondent is hereby ordered to provide the complainant with a copy of the report forthwith.

 

3.  In complying with paragraph 2 of the order, the respondent may redact the in camera document #s, or portions thereof, described in paragraphs 23, 29 and 32 of the findings, above, as well as any references to the identities of alleged victims, as referenced in paragraph 28 of the findings, above.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of February 9, 2005.

 

________________________________

Petrea A. Jones

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:

 

Kathryn P. Sullivan

c/o James W. Parker, Esq.

The Legal Innovations Group

PO Box 4278

Hartford, CT 06147

 

Police Department, Town of Groton

c/o Michael P. Carey, Esq.

Suisman Shapiro

Two Union Plaza, Suite 200

PO Box 1591

New London, CT 06320

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/1998-384FDUR/paj/2/17/2005