FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Len Besthoff and WFSB TV,  
  Complainants  
  against   Docket #FIC 2008-268

Commissioner,

State of Connecticut,

Department of Public Works; and

State of Connecticut,

Department of Public Works,

 
  Respondents March 25, 2009
       

           

The above-captioned matter was heard as a contested case on August 1, 2008, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The Commissioner of Veterans’ Affairs was granted intervenor status.

 

            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 1-200(1), G.S.

 

2.  By letter of complaint filed April 17, 2008, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying their request for public records.

 

3.  It is found that, by letter dated March 30, 2008, the complainants requested that the respondents provide them with a copy of the “non-exempt portions” of a “safety review” conducted by the Department of Public Works Statewide Security Unit of the Department of Veterans’ Affairs Home and Hospital in Rocky Hill (the “Veterans’ Home”).

 

4.  It is found that, by letter dated April 30, 2008, the respondents denied the request. 

 

5.  It is found that the requested “safety review” record is titled “Physical Security Assessment.”

 

6.  It is found that the Physical Security Assessment is a security audit conducted pursuant to 4b-133(a), G.S., which provides in relevant part:

 

The commissioner may conduct or require a security audit of any building or structure owned or leased by a state agency, as defined in section 4b-130, to determine the security characteristics of such building or structure. Such security audit shall be conducted in cooperation with the state agency owning or occupying the building or structure.

 

7.  In turn, 4b-130, G.S., provides in relevant part:

      (1) "Commissioner" means the Commissioner of Public Works;

      (2) "Security" means reasonable measures required to: (A) Protect state employees from bodily harm in the workplace and state employee parking areas, and (B) protect the state's physical assets;

      (3) "Security audit" means: (A) Worksite analysis; (B) building risk classification; (C) identification of security exposures; (D) hazard prevention and control; and (E) recommendations for risk management procedures;

      (4) "Security measure" means the level of qualifications and the deployment of security personnel, a security strategy or a security device ….

 

8. It is found that the requested security audit is an analysis and assessment of the physical security risks associated with the Veterans’ Home.  The Assessment is a very detailed, building-by-building look at the existing security of the facility, and recommendations to mitigate the risks identified in the risk analysis.  The Assessment looks at the security equipment and systems in place, the effectiveness of security personnel, security policies and procedures, physical security such as lighting and fences, and the duties and training of security guards.  The Assessment was conducted over a period of six months, and completed in February 2007.

 

9.  It is found that, in March or April of 2007, in connection with the complainants’ ongoing inquiry concerning the security audit, the respondent Commissioner, together with counsel and the Director of Safety and Security, and the intervenor Commissioner of Veterans’ Affairs, reviewed the security audit and determined that disclosure of the security audit might result in a safety risk.

 

10.  Section 1-200(5), G.S., provides:

 

“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.

 

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

 

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 (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. 

 

12.  It is found that the requested security audit is a public record within the meaning of 1-200(5) and 1-210(a), G.S.

 

13.  The respondents maintain that the security audit is exempt from disclosure pursuant to 1-210(b)(19) and 4b-131, G.S.

 

14.  Section 1-210(b)(19), G.S., provides in relevant part that disclosure is not required of:

 Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency ….  Such records include, but are not limited to:

      (i) Security manuals or reports;

...

      (iii) Operational specifications of security systems utilized at any government-owned or leased institution or facility, except that a general description of any such security system and the cost and quality of such system, may be disclosed;

      (v) Internal security audits of government-owned or leased institutions or facilities ….

15.  Section 4b-131(b), G.S. provides:

     No provision of the Freedom of Information Act, as defined in section 1-200, shall be construed to require the disclosure of records in any form concerning (1) security measures in government-owned or leased facilities, (2) security audit recommendations for government-owned or leased facilities, or (3) future security measures to be implemented in government-owned or leased facilities.

16.  It is found that the entirety of the security audit is an “internal security audit” of a “government-owned or leased institution or facility”, and that the respondent Commissioner determined that disclosure of the security audit might constitute a security risk, all within the meaning of 1-210(b)(19), G.S.

 

17.  It is also found that the security audit concerns security measures in government-owned or leased facilities, contains security audit recommendations for government-owned or leased facilities, and contains future security measures to be implemented in government-owned or leased facilities, all within the meaning of 4b-131(b), G.S.

 

18.  The complainant contends that he is entitled to receive a copy of the security audit with exempt information redacted.

 

19.  It is found that the security audit arguably contains some limited information that, in and of itself, would not constitute a security risk if disclosed, such as photographs of buildings and structures that are visible from public areas.  However, it is concluded that no meaningful purpose would be served by requiring the respondents to provide copies of such materials absent the security information they are intended to illustrate. 

 

20.  The complainant also contends that he is entitled to receive a copy of any portions of the security audit that do not directly relate to the security of the facility, such as recommendations concerning the maintenance of an on-site fire brigade.

 

21.  It is found, however, that recommendations concerning the maintenance of an on-site fire brigade reasonably relate to the “risk of harm to any person,” within the meaning of 1-210(b)(19), G.S., and that there is no reason in this case to question the judgment or discretion of the respondent Commissioner in including fire mitigation analysis as part of a physical security audit.

22.  It is therefore concluded that the security audit withheld from the complainant is exempt from disclosure pursuant to 1-210(b)(19), G.S., and that the respondent did not violate 1-210(a), G.S.

 

 

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

 

            1.  The complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 25, 2009.

 

 

____________________________

S. Wilson

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:

 

Len Besthoff and WFSB TV

333 Capitol Blvd.

Rocky Hill, CT 06067

 

Commissioner,

State of Connecticut, Department of Public

Works; and State of Connecticut,

Department of Public Works

C/o Kevin J. Kopetz, Esq.

Managing Attorney

State Department of Public Works

165 Capitol Avenue, Room 433

Hartford, CT 06106

 

 and

 

Intervenors

 

Linda S. Schwartz, RN DrPH, FAAN

Commissioner

State of Connecticut

Department of Veterans’ Affairs

287 West Street

Rocky Hill, CT 06067

 

and

 

Hugo C. Adams

State of Connecticut

Department of Veterans’ Affairs

287 West Street

Rocky Hill, CT 06067

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-268FD/sw/3/26/2009