FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Robin Elliott,  
  Complainant  
  against   Docket #FIC 2008-733

Warden, State of Connecticut,

Department of Correction,

Northern Correctional Institution;

Shayne Wilson, Disciplinary Report Coordinator,

State of Connecticut, Department of Correction,

Northern Correctional Institution; and

State of Connecticut, Department of

Correction,

 
  Respondents

July 1, 2009

       

 

The above-captioned matter was heard as a contested case on May 21, 2009, at which time the complainant and the respondents appeared 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.).  This matter was consolidated for hearing with Docket #FIC 2008-626, Robin Elliott v. Theresa Lantz, Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC 2008-706, Robin Elliott v. Jeffrey McGill, Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction; and Docket #FIC 2008-806, Robin Elliott v. Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction.

 

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.  It is found that, by letter dated October 29, 2008, the complainant made a request to the respondents for:

(a) “…copies of the video viewed to summarize the finding of the reportee [sic] of the contents of the video that was read at my DR hearing held on 10-29-08”;

 

(b) “…copies of all reports, statements, memos, e-mails, notes or any documents which relates [sic] to the DR given to me on 10-29-08, or the DR (disciplinary report) hearing held on 10-29-08”;

 

(c) “…copies of CN9504, CN9508, CN9505, CN9511, CN9506, as well as a copy of the weekly disciplinary summary prepared by the management of information system (MIS) unit”;

 

(d) “…any documents or data as outlined in sec. 4-190 (4), (9), (10) and (11) used in reference to the incident of 10-02-08 between myself, Ruffino and Welch…including all documents or data used at my DR (disciplinary report) hearing on 10-29-08.”

 

3.  By letter of complaint dated November 17, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act by failing to comply with the requests described in paragraph 2, above.

 

4.  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.

 

5.  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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.

 

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

 

7.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records are public records and must be disclosed in accordance with 1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure. 

 

            8.  At the hearing in this matter, the complainant stated he was satisfied with the response to the requests described in paragraphs 2(b) and 2(d), above, and that he wished to withdraw his complaint with respect to such requests.  Based upon such withdrawal, the requests described in paragraphs 2(b) and 2(d), above, will not be considered herein.

 

            9.  With regard to the request described in paragraph 2(a), above, the respondents claim that disclosure of the video recording would constitute a “security risk”, and that such video recording therefore is exempt from disclosure pursuant to 1-210(b)(18), G.S.

 

10.  Section 1-210(b)(18), G.S., provides, in relevant part, that “[n]othing in the Freedom of Information Act shall be construed to require disclosure of:

 

Records, 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…. Such records shall include, but are not limited to:

 

      (A) Security manuals, including emergency plans contained or referred to in such security manuals;

 

      (B) Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

 

      (C) Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

 

      (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;

 

      (E) Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

 

      (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;

 

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

 

      (H) Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers.

 

            11.  It is found, based upon the evidence produced at the hearing in this matter, that the Commissioner of Correction has reasonable grounds to believe that disclosure of the video recording, described in paragraph 2(a), above, may result in a safety risk, within the meaning of 1-210(b)(18), G.S.

 

            12.  It is therefore concluded that the respondents did not violate the FOI Act when they withheld the video recording, described in paragraph 2(a), above, from the complainant.

 

13.  With regard to the request described in paragraph 2(c), above, the complainant stated at the hearing in this matter that, although he received some records from the respondents, he had not received a complete response to such request.  It is found that the respondents did not search for “the weekly disciplinary summary prepared by the management of information system unit.”

 

14.  It is found that the respondents failed to prove that they conducted a diligent search for all records responsive to the request described in paragraph 2(c), above, and that they therefore failed to prove that they provided all requested records to the complainant.

 

15.  It is therefore concluded that the respondents violated the FOI Act with regard to the request described in paragraph 2(c), above.

 

 

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

 

1.  Forthwith, the respondents shall conduct a diligent search for all records responsive to the request described in paragraph 2(c), above, and provide a copy of all such responsive records, not previously provided, to the complainant, free of charge.

 

            2.  In the event that such search reveals no responsive records, the respondents shall so inform the complainant in an affidavit.

 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of July 1, 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:

 

Robin Elliott, #24941

Northern Correctional Institution

287 Bilton Road

P.O. Box 665

Somers, CT 06071

 

Warden, State of Connecticut,

Department of Correction,

Northern Correctional Institution;

Shayne Wilson, Disciplinary Report Coordinator,

State of Connecticut, Department of Correction,

Northern Correctional Institution; and

State of Connecticut, Department of

Correction

C/o Sandra A. Sharr, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-733FD/sw/7/7/2009