FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Diego M. Vas II,  
  Complainant  
  against   Docket #FIC 2008-721

Charles Lee, Warden, State of Connecticut,

Department of Correction, Cheshire

Correctional Institution; and State of Connecticut,

Department of Correction,

 
  Respondents October 14, 2009
       

 

The above-captioned matter was heard as contested case on June 3, 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 et al, 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 respondents are public agencies within the meaning of 1-200(1)(A), G.S.

 

2.  It is found that, by application dated October 8, 2008, the complainant made a request to the respondents for copies of: a) all records related to an investigation which provided the evidence to justify placing the complainant in administrative detention from September 15 to September 23, 2008; and b) all materials tending to exonerate the complainant in the investigation referenced in subparagraph 2.a). In straightforward language, the complainant requested records that would state why he was placed in what is known in common usage as solitary confinement.

 

3.  It is found that, by letter dated October 28, 2008, the respondents acknowledged the complainant’s request for records.

 

4.  By letter dated November 4, 2008 and filed with the Commission on November 12, 2008, the complainant appealed to the Commission, alleging that the respondents failed to provide any records described in paragraph 2, and thereby violated the Freedom of Information Act. The complainant further requested the imposition of civil penalties.

 

5.  Section 1-200(5), G.S., states:

 

“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.

 

6.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

 

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. 

 

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. 

 

7.  Section 1-210(b), G.S., states in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 

….

 

(18) 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:

 

….

 

 (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; (emphasis added).

 

8.  It is found that, by letters dated January 28, 2009 and April 24, 2009, the respondent Department of Correction, provided the complainant with six pages, with significant redactions, including an incident report and three emails. These records refer to an anonymous inmate note containing a highly offensive reference to a female staff member and the unsuccessful efforts by the respondent Department of Correction to identify the author of the note. One email suggests that the respondent Department of Correction concluded that the handwriting of the complainant did not match the handwriting of the anonymous note. At the hearing, the respondents acknowledged that other requested records were withheld, claiming the exemption at 1-210(b)(18), G.S., generally and emphasizing subsection (G) of this exemption.  

 

9.  Also at the hearing, the complainant volunteered to narrow his request to the anonymous note which was referred to in the records provided to the complainant, as described in paragraph 8. The respondents’ counsel agreed to provide the anonymous note to the Commission for in camera inspection. On the index to the in camera record, the respondent’s counsel claimed the exemptions at 1-210(b)(18) and 1-210(b)(2), G.S. The record was accepted by the Commission for an in camera inspection, and is hereby identified as IC-2008-721-1 (sometimes herein “the anonymous note”).

 

10.  The Commission takes administrative notice of the following memoranda of decisions of the Superior Court, the following final decisions of the Commission, and the records in such matters: 

 

Commissioner, Department of Correction, Harry Soucy, Steven Petracca, Local 387 Council 4 v. Freedom of Information Commission and David Taylor, Docket # CV-074015438, Superior Court, Judicial District of New Britain (Memorandum of Decision Nov. 3, 2008) (Cohn, J.);

 

Theresa Lantz, Commissioner, Department of Correction v. Freedom of Information Commission and David P. Taylor, Docket # CV-084016766, Superior Court, Judicial District of New Britain (Memorandum of Decision Nov. 3, 2008) (Cohn, J.);

 

State of Connecticut, Department of Correction v. Freedom of Information Commission and Richard Quint, Docket # CV-064012025, Superior Court, Judicial District of New Britain (Memorandum of Decision July 3, 2007) (Levine, J.);

 

Docket #FIC 2006-502; David P. Taylor v. Commissioner, State of Connecticut, Department of Correction (Sept. 12, 2007); 

 

Docket #FIC 2007-069; David P. Taylor v. Warden, State of Connecticut, Department of Correction, Cheshire Correctional Institution; and Captain, State of Connecticut, Department of Correction, Cheshire Correctional Institution (Jan. 23, 2008);

 

Docket #FIC 2008-029; David Taylor v. Personnel Department, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction (Dec. 10, 2008).   

 

Docket #FIC 2008-471; David Taylor v. Director, State of Connecticut, Department of Correction, Human Resources Unit; and State of Connecticut, Department of Correction (Jun. 10, 2008).   

 

11.  It is found that the cases listed in paragraph 10 all address requests for the disciplinary history of correctional officers, while IC-2008-721-1 is an anonymous statement of allegations by an inmate. Because the anonymous note is written, it reveals the handwriting of an inmate. Because it makes allegations about other inmates, the anonymous author could be considered an informant, who, if his identity were disclosed, might be subject to retaliation from other prisoners. Because the anonymous note makes allegations in highly offensive language, disclosure of IC-2008-721-1 would be inflammatory and would result in a safety risk to other inmates. Because the anonymous note makes allegations in highly offensive language concerning a female corrections officer, disclosure of IC-2008-721-1 could result in harm to her, in the form of similar allegations or unwanted attention. It is found that IC-2008-721-1 is entirely different in content and tone than records of the disciplinary history of correctional officers.  

 

12.  It is found that the complainant is incarcerated at a maximum security prison, as a result of conviction for murdering his own child and also assaulting and paralyzing a social worker. It is further found that, based upon the disclosures by the respondent Department of Correction described in paragraph 8, the complainant approached the female staff member referred to in the anonymous note, suggesting that they join together as co-plaintiffs initiating a lawsuit. The staff member then had to write a new incident report. To protect her, the correctional facility took appropriate administrative action.

                                                       

13.  At the hearing, another staff member of the respondent Department of Correction testified that the April 24, 2009 letter and enclosures, in error, provided the complainant with too much information (see paragraph 8). The disclosed information allowed the complainant to write to the female staff member in a manner that could have led to undue familiarity. There was also testimony that undue familiarity is a chronic problem for the respondent Department of Correction, resulting in many dismissals of staff members. 

 

14.  At the hearing, a district administrator of the respondent Department of Correction, who supervises nine correctional facilities and has worked for the Department of Correction for over twenty-seven years, testified that disclosure of the anonymous note would compromise the safety of persons, both between inmate and inmate, and between inmate and a staff member. Informers are traditionally targeted by other inmates, and handwriting can be used to identify an anonymous informer.   

 

15.  Finally, it is found that, when the complainant was asked how he would react if, hypothetically, he had been the author of the anonymous note and it was disclosed, he stated that he would: “handle the consequences.”    

 

16.  It is concluded that IC-2008-721-1 is a “public record” within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

17.  It is concluded that an anonymous statement of allegations by an inmate is distinguishable from records of the disciplinary history of correctional officers. Specifically, it is also concluded that IC-2008-721-1, is a record that contains information on contacts between inmates and law enforcement officers, as exempted by 1-210(b)(18)(H), G.S. Based on the factual findings and testimony set forth and described at paragraphs 8, 11, 12, 14, and 15, it is also concluded that the Commissioner of Correction had “reasonable grounds to believe” that disclosure of IC-2008-721-1 would result in a “safety risk, including the risk of harm” to corrections officers and inmates. Based on the factual findings and testimony set forth and described at paragraphs 11, 12, 14 and 15, it is also concluded that the Commissioner of Correction had “reasonable grounds to believe” that disclosure of IC-2008-721-1 would result in the risk of a disorder in a correctional institution (“handle the consequences”, paragraph 15, above). So, based upon the facts and circumstances of this case as well as the in camera inspection, it is concluded that IC-2008-721-1 is exempt from mandatory disclosure pursuant to 1-210(b)(18), G.S.

 

18.  In light of the conclusion at paragraph 17, neither the claim of exemption pursuant to 1-210(b)(2), G.S., nor the request for civil penalties need be adjudicated.   

 

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

 

1.  The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 14, 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:

 

Diego M. Vas II #218580

MacDougall-Walker C I

1153 East Street South

Suffield, CT 06080

 

Charles Lee, Warden, State of Connecticut,

Department of Correction, Cheshire

Correctional Institution; and State of Connecticut,

Department of Correction

C/o Nicole Anker, Esq.

State of Connecticut

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-721FD/sw/10/15/2009