FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Fred Anderson,  
  Complainant  
  against   Docket #FIC 2006-354

Commissioner, State of Connecticut,

Department of Public Safety,

Division of Fire, Emergency and

Building Services,

 
  Respondent  June 13, 2007
       

 

The above-captioned matter was heard as a contested case on January 5, 2007, at which time the complainant and respondent 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, 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.      By letter dated April 4, 2006, the complainant made a request to the respondent for a copy of the test results for air quality and quantity of all the ventilation systems to all the cells in the units of N, O, R, P, and Q of the newly built section of MacDougall Correctional Institution.  The complainant also requested a copy of the laws, or regulations (whether they be of the state or federal government or from the Department of Public Safety) that set forth the minimum safety standards for air quality and control in correctional facilities (hereinafter “records request”).  However the complainant included in his request that his name and his records request remain confidential. 

 

3.      It is found that by letter dated May 1, 2006, the respondent informed the complainant that pursuant to 1-210(c), G.S., his request and any records responsive to his request must be submitted to the Department of Correction (hereinafter “DOC”) prior to disclosure of the responsive records, and that, consequently, the confidentiality he requested was not possible.  The respondent asked that the complainant advise, in writing, if he still wished to proceed with his request.

 

4.      It is found that, by letter dated May 9, 2006, the complainant informed the respondent that he wished to proceed with his records request. 

 

5.      It is found that the respondent maintains two records that are responsive to the complainant’s request which are the MacDougall Correctional Institution Smoke Control Sequence Function Performance test results and Air Apparatus test results.

 

6.      It is found that, by letter dated May 19, 2006, the respondent forwarded the complainant’s records request and the responsive records to the DOC, which were received by the DOC on or about May 23, 2006.

 

7.      It is found that, by letter dated June 2, 2006, the DOC informed the respondent that pursuant to 1-210(b)(18), G.S., the DOC had reasonable grounds to believe that the release of the requested records may result in a safety risk and are not disclosable. 

 

8.      It is found that, by letter dated June 7, 2006, the respondent informed the complainant of DOC’s determination and denied the complainant’s records request.

 

9.      By letter dated July 7, 2006 and filed on July 12, 2006, the complainant appealed to this Commission, alleging that the respondent violated the FOI Act by denying his records request.

 

10.   Section 1-200(5), G.S., provides in relevant part that:

 

“[p]ublic 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.

 

11.   Section 1-210(a), G.S., provides in relevant part that: 

 

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

 

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

 

13.   It is found that the requested records are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

14.   It is found that by letter dated November 17, 2006, the respondent informed the complainant that based on the DOC’s reconsideration of his records request the respondent would provide him with a copy of the Air Apparatus test results once he remitted $23.25 (93 pages at $.25 per page) to the respondent.   It is found that the respondent also informed the complainant that the DOC continued to maintain that disclosure of the Smoke Control Sequence Function Performance test may result in a safety risk and the respondent was still not permitted to provide him with of copy of those records.  It is found that the respondent further informed the complainant that his request for the laws, regulations or standards applicable to the air quality in correctional facilities required research, which the respondent was not required to do under the FOI Act.  

 

15.   It is found, however, that by letter dated December 14, 2006, the respondent informed the complainant that it was prepared to provide the complainant with a copy of a document captioned “Chapter 4, Ventilation, of the 1996 ICC Mechanical Code” in response to his request for law or regulations that set forth the minimum safety standards for air quality and control in correctional facilities.

 

16.   It is found that the complainant informed the respondent that he was indigent and requested that the copying charges for the requested records be waived. 

 

17.   It is found that the respondent provided the complainant with a copy of its Affidavit of Indigency (JD-AP-48) form and requested that the complainant complete the form in its entirety, have it notarized and return it to the respondent for a determination regarding his indigence. 

 

18.   It is found that, as of the hearing on this matter, the complainant had not returned the form to the respondent. 

 

19.   With respect to the MacDougall Correctional Institution Smoke Control Sequence Function Performance test results, 1-210(b)(18), G.S., exempts from mandatory disclosure:

 

[r]ecords, 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.

20. Section 1-210(c), G, S., in relevant part, provides:

Whenever a public agency receives a request from any person confined in a correctional institution  for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility.

21.   With respect to the claim of exemption pursuant to 1-210(b)(18), G.S., it is

 found that disclosure of the MacDougall Correctional Institution Smoke Control

 Sequence Function Performance test results would disclose the mechanical operations of

 the air control system of the prison and the sequence of events that would occur if there

 was smoke or fire detected, such as which areas would be locked down, in what order

 and for how long.

 

22.   It is found that such information could enable escape or gang-related violence.

 

23.   It is found that the Commissioner of Correction has reasonable grounds to believe that the disclosure of the MacDougall Correctional Institution Smoke Control Sequence Function Performance test results may result in a safety risk, including the risk of harm to any person or the risk of an escape from or disorder in, a correctional institution or facility under the supervision of the DOC, within the meaning of 1-210(b)(18), G.S., and the test results are exempt from mandatory disclosure.

 

24.   With respect to the claim of exemption pursuant to 1-210(c), G.S., it is found that the language of 1-210(c), G.S., obligated the respondent to contact the DOC "before complying with the request."  Here, the respondent never complied with the request and therefore, there was no need for the DOC to "withhold" records "delivered to the person's correctional institution or facility" within the meaning of 1-210(c), G.S. Therefore, it is concluded that 1-210(c), G.S., is not applicable in this case.

 

25.   It is concluded that the respondent did not violate the disclosure provisions of 1-210(a) and 1-212(a), G.S., by not providing the complainant with a copy of the MacDougall Correctional Institution Smoke Control Sequence Function Performance test results.

 

26.   It is found that by letter dated November 28, 2006 and received by this Commission on December 7, 2006, the complainant requested the imposition of civil penalties against the respondent alleging that the respondent willfully delayed complying with his records request.

 

27.   It is found that based upon the facts and circumstance of this case, the Commission declines to impose a civil penalty against the respondent.

 

On the basis of the record concerning the above-captioned complaint, no order is recommended by the Commission.

           

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 2007.

 

________________________________

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:

 

Fred Anderson, #259271

Osborn Correctional Institution

335 Bilton Road

PO Box 100

Somers, CT 06071

 

Commissioner, State of Connecticut,

Department of Public Safety,

Division of Fire, Emergency and

Building Services

c/o Lynn D. Wittenbrink, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-354FD/paj/6/14/2007