FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Michel Mennesson,  
  Complainant  
  against   Docket #FIC 2006-687

Managing Attorney, State of Connecticut,

Office of Protection and Advocacy for

Persons with Disabilities,

 
  Respondent December 12, 2007
       

 

The above-captioned matter was heard as a contested case on May 8, 2007, at which time the complainant and respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   The State of Connecticut, Department of Correction (hereinafter “DOC”) requested and was granted intervenor status.

 

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.      It is found that by letter dated September 13, 2006, the complainant made a request to the respondent for a copy of “the monitoring requirements for compliance with the OPA v. Choinski agreement as agreed upon by OP&A and DOC monitors” and for a copy of “the results of the January 2006 and August 2006 survey of compliance with these requirements” (hereinafter “requested records”).

 

3.      It is found that the State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities (hereinafter “OPA”) and its executive director, James McGaughey, filed a civil action in federal court against the wardens of Northern Correctional Institution and Garner Correctional Institution, and the Commissioner of DOC. 

 

4.      It is found that the parties described in paragraph 3, above, entered into an agreement which settled the civil action.  It is found that the settlement agreement provides in relevant part that:

 

To assess the defendant’s compliance with [the] agreement, [the parties] shall appoint a mental health consultant and a custody consultant . . . for a grand total of four consultants

. . . the consultants’ sole function shall be to review compliance with this agreement . . . the mental health consultants shall meet with appropriate [DOC] personnel and develop an audit instrument for the purpose of evaluating compliance with the mental health section of [the] agreement and the custody consultants shall meet with appropriate [DOC] personnel and develop an audit instrument for the purpose of evaluating compliance with the custody sections of [the] agreement.

 

The audits shall be completed according to the following schedule, with reports submitted to counsel for the plaintiffs and the defendants: six months after the effective date of the agreement; one year after the effective date of the agreement; eighteen months after the effective date of the agreements; twenty-four months after the effective date of the agreement; and thirty months after the effective date of the agreement.

 

5.      It is found that the records responsive to the complainant’s records request include the audit instrument developed by the mental health consultants, the audit instrument developed by the custody consultants, and one completed audit and the corresponding narrative report.

 

6.      By letter dated September 20, 2006, the respondent informed the complainant that, pursuant to 1-210(b)(18), G.S., of the Freedom of Information (“FOI”) Act, she was required to seek the opinion of the Commissioner of the Department of Correction as to whether disclosure of the requested records may result in a safety risk.  She further informed the complainant that once she received a response from the DOC, she would determine whether she may disclose the requested records to him.

 

7.       It is found that by letter dated September 25, 2006, the DOC informed the respondent that disclosure of the requested records would constitute a violation of the confidentiality provisions of the settlement agreement.

 

8.      It is found, however, that the respondent disagreed with the DOC’s opinion described in paragraph 7, above, and by letter dated September 29, 2006, she informed the department that she would disclose the requested records unless she received notice, by October 13, 2006, that the DOC had filed a motion in court to preclude the disclosure of the records.

 

9.      It is found that by letter dated October 5, 2006, the DOC again informed the respondent of its concerns regarding the confidentiality provisions and also indicated that certain information contained in the requested records may be exempt from disclosure pursuant to 1-210(b)(18)(D)(F) and (G), G.S.  It is found, however, that when asked by the respondent to specify which information would be exempt, the DOC did not respond.

 

10.   It is found that having been kept apprised of the correspondence between the respondent and the DOC, the complainant renewed his records request to the respondent by letter dated November 28, 2006.

 

11.   By letter dated December 26, postmarked December 28, and received on December 29, 2006, the complainant appealed to this Commission alleging that the respondent violated the FOI Act by failing to comply with his September 13 and November 28, 2006 records requests.

 

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

 

“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.

 

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

 

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. 

 

14.   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 . . . .”

 

15.   It is found that the requested records are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

16.   It is found that the respondent does not claim any exemption to the disclosure of the requested records, however, in light of the DOC’s objections, which are described further below, preferred to have this Commission issue a final decision in the matter.

 

17.   At the hearing on this matter, the DOC first claimed that the confidentiality provisions of the settlement agreement precluded disclosure of the requested records and because the settlement agreement was incorporated in the court’s order of dismissal, the requested records are, therefore, exempt by federal law from disclosure pursuant to 1-210(b)(10), G.S.  The DOC’s second claim was that some of the requested records are exempt from disclosure pursuant 1-210(b)(18)(D), (F) and (G), G.S.  The DOC requested that the FOI Commission defer to the federal court’s jurisdiction over the settlement agreement and dismiss the complainant’s appeal.

 

18.   With respect to DOC’s first claim, 1-210(b)(10), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “[r]ecords, tax returns, reports and statements exempted by federal law or state statutes . . . .”

 

19.   It is found that the settlement agreement provides in relevant part that “[a]ll consultants’ reports remain confidential and shall not be disclosed publicly by the consultants during the effective term of this agreement . . . .”

 

20.   At the hearing on this matter, the respondent, a party to the settlement agreement, argued that the confidentiality provisions described in paragraph 19, above, were not intended to, and do not, bar either party to the settlement agreement from disclosing the records but rather bar the consultants from doing so and disagreed with the DOC’s interpretation of those provisions.

 

21.   Furthermore, the Commission takes administrative notice of its previous final decisions that a public agency may not simply contract away the public’s right to know under the FOI Act by including a confidentiality provision prohibiting parties to an agreement from disclosing records related to that agreement. See e.g. Contested case #s FIC 2001-530, David Critchell and Waterbury Republican-American v. Corporation Counsel, City of Torrington (Final Decision Dated June 26, 2002); and FIC 94-063, Carol L. Panke v. Bloomfield Town Manager, (Final Decision dated August 10, 1994).  See also Lieberman v. State Board of Labor, et al., 216 Conn. 253, 267 (1990) (agreements are subject to the restrictions and limitations of public policy as manifested in constitutions, statutes and applicable legal precedents).

 

22.   However, the Commission also takes administrative notice of City of Hartford v. Chase, 942 F. 2d 130 (1991), which dealt with the disclosure of documents pertaining to a settlement agreement under the FOI Act when a court has entered a confidentiality order with respect to such documents.  In City of Hartford, the court emphasized that a federal court’s power to seal documents takes precedence over the FOI Act rules that would otherwise allow documents to be disclosed.

 

23.   It is found that, on September 26, 2005, Judge Chatigny issued an order of dismissal in the case between OPA and DOC, and approved their settlement agreement; however, it is also found that such order does not include an order of confidentiality. 

 

24.   At the hearing on this matter, evidence was admitted consisting of a motion to file under seal the “Declaration of Ben A. Solnit with a copy of mental health audit report,” which was filed by the attorney for OPA in connection with a previous motion filed by him for an order to allow access to prisoner health records. 

 

25.   It is found, however, that the motion described in paragraph 24, above, does not include an order of confidentiality nor can such an order be inferred from such motion.

 

26.   It is found that neither the respondent, nor the DOC, has offered any credible evidence that the federal court has entered an explicit order mandating the confidentiality of the requested records.  It is concluded that the requested records are not protected from disclosure pursuant to a court order.

 

27.   It is found that the confidentiality provisions of the settlement agreement, described in paragraph 19, above, do not preclude the respondent from disclosing the requested records.

 

28.   With respect to DOC’s second claim, 1-210(b)(18), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:

Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, 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 or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

. . .

(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 . . .

. . .

(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;

 and

(G)  Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities . . . . 

 

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

Whenever a public agency receives a request from any person confined in a correctional institution or facility . . . 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 or Whiting Forensic Division facility. [emphasis added]

30.   It is found that, by its terms, 1-210(c), G.S., restricts the application of 1-210(b)(18), G.S., to requests “from any person confined in a correctional institution or facility,” and requires a public agency to notify the Commissioner of Correction of the requests.  Section 1-210(c), G.S., gives the Commissioner of Correction authority to determine whether the requested record is exempt, and also to withhold the record from the inmate.  However, 1-210(c), G.S., does not plainly require or permit a public agency to notify the Commissioner of Correction of requests from the general public, or authorize the Commissioner of Correction to determine whether a record requested by a member of the general public is exempt, or permit the Commissioner of Correction to withhold the record from a member of the general public.

 

31.   It is found, therefore, that the respondent misapplied the provisions at 1-210(b)(18), and 1-210(c), G.S., when she notified the Commissioner of Correction of the complainant’s request and that the respondent has mistakenly relied on the provisions therein to justify her failure to promptly comply with the complainant’s request. 

 

32.   It is also found that the while DOC may maintain a copy of the requested records, it is not the custodian of the records sought from, and maintained by, the respondent and therefore, the DOC has no standing to claim the exemptions to disclosure contained in 1-210(b)(10), and (18)(D), (F) and (G), G.S. 

 

33.   Finally, it is found that the respondent failed to prove that the Commissioner of Correction has reasonable grounds to believe that disclosure of the requested records 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 her supervision.

 

34.   Notwithstanding the good faith of the respondent in this case, it is found that the respondent violated the disclosure provisions of 1-210(a) and 1-212(a), G.S., by failing to provide the complainant with a copy of the requested records.

 

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

 

1.      Forthwith, the respondent shall provide the complainant with a copy of the requested records, free of charge.

 

2.      Henceforth, the respondent shall strictly comply with the provisions of 1-210(a) and 1-212(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

Michel Mennesson

175 Arch Bridge Road

Bethlehem, CT 06751

           

Managing Attorney, State of Connecticut,

Office of Protection and Advocacy for

Persons with Disabilities

60-B Weston Street

Hartford, CT 06120

 

State of Connecticut,

Department of Correction

c/o Terrence M. O’Neill, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-687FD/paj/12/19/2007