FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Albert Farah,  
  Complainant  
  against   Docket #FIC 2009-252

Commissioner, State of Connecticut,

Department of Public Safety; State

of Connecticut, Department of Public

Safety; Commissioner, State of

Connecticut, Department of Correction;

and State of Connecticut, Department of

Correction,

 
  Respondents April 14, 2010
       

 

The above-captioned matter was heard as a contested case on October 15, November 23, 2009, and March 12, 2010, at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant, an inmate, 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.). 

 

By order of the hearing officer, the Commissioner, State of Connecticut, Department of Correction was added as a party respondent in this matter.

 

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 November 28, 2008, the complainant made a records request to the respondent Department of Public Safety (hereinafter “DPS”) for a copy of records related to its police case report DPS03-05181 (hereinafter “the case report”).  

 

3.         It is found that the respondent DPS began processing the complainant’s request on or about December 15, 2008 which initially required an eight dollar processing fee that it received from the complainant on or about February 13, 2009.

 

4.         It is found that the case report was not readily available and had to be transferred from one division to another for review.  It is found that the transfer did not occur until March of 2009.

 

5.         It is found that the case report is over 400 pages and had to be reviewed carefully, line by line, because it was a sexual assault case that involved multiple victims, some of whom were minors.

 

6.         It is found that, by letter dated May 4, 2009, the complainant was informed that the case report was being reviewed, that it was over 400 pages, that the review would take some time, and further that, pursuant to 1-210(b)(18), G.S., it was required to provide the Department of Correction (hereinafter “DOC”) with a copy of the case report for its review before disclosing any of the case report to the complainant.

 

7.         It is found that by September 10, 2009, the review and redaction of the case report was completed and that the respondent DPS forwarded a redacted copy of the case report to the complainant at his correctional facility on that date.

 

8.          It is found that, by cover letter dated September 10, 2009, the respondent DPS advised the complainant of the redactions that had been made to the records as well as the records that were withheld.  It is found that the respondent DPS also included the statutory provisions it claimed permitted it to make the redactions or withhold the records.

 

9.         It is found that, specifically, the September 10, 2009 letter, described in paragraph 8, above, advised the complainant of the following:

 

a.       social security numbers were redacted;

b.      personnel or medical and similar files were withheld;

c.       the names and addresses of victims of sexual assault were redacted;

d.      records from the Department of Children and Families were withheld;

e.       erased records were withheld;

f.       photographs and computerized images of individuals were withheld;

g.      signed witness statements were withheld;

h.      preliminary drafts or notes were withheld;

i.        NCIC records were withheld; and

j.        records that would disclose investigatory techniques not otherwise known to the general public were withheld.

 

10.      It is found that the redacted case report was delivered by regular mail to the complainant’s correctional facility, and was subject to the facility’s standard mail review process.

 

11.      It is found that at the completion of the facility’s review of the redacted case report, the respondent Commissioner of DOC withheld it from the complainant pursuant to his Administrative Directive 10.7.

 

12.      By letter dated April 20, 2009, the complainant appealed to this Commission alleging that the respondent Commissioner of DPS violated the Freedom of Information (“FOI”) Act by failing to comply with his records request.

 

13.      It is found that, at the time that the complainant filed his complaint in this matter, he was not aware that the respondent DPS had sent the redacted case reports and that it had been withheld by the respondent Commissioner of DOC.

 

14.      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. 

 

15.      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, (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. 

 

16.      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.”

 

17.      It is found that the case report is a public record within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

18.      On February 4, 2010, the Commission ordered the respondent DPS to provide it with an un-redacted copy of the case report for in camera review. 

 

19.   It is found, however, that the respondent DPS provided an incomplete and redacted copy of the case report in the form described in paragraph 9, above, based upon certain legal arguments made at the subsequent March 12, 2010 hearing.  

 

20.   The respondent DPS submitted portions of the case report which have been identified as IC #s 2009-252-001 through 2009-252-098, IC #s 2009-252-100 through 2009-252-168, IC #s 2009-252-188 through 2009-252-237, IC #s 2009-252-239 through 2009-252-265, IC #s 2009-252-272 through 2009-252-278, IC # 2009-252-291, IC #s 2009-252-293 through 2009-252-298, IC #s 2009-252-315 through 2009-252-338, IC #s 2009-252-340 through 2009-252-344, IC #s 2009-252-360 through 2009-252-366, IC #s 2009-252-370 through 2009-252-381, and IC #s 2009-252-383 through 2009-252-443. 

 

21.   With respect to the respondent Commissioner of DOC’s withholding of the redacted case report from the complainant, as described in paragraphs 10 and 11, above, it is found that, in this particular case, it is sufficient to examine the redacted case report to determine the applicability of 1-210(b)(18), G.S., because it is that redacted record that was withheld by the respondent Commissioner of DOC.

 

22.  As already found in paragraph 11, above, the respondent Commissioner of DOC withheld the redacted case report from the complainant based on Administrative Directive 10.7 which is entitled “Inmate Communications” and provides for the review, inspection and rejection of incoming correspondence addressed to an inmate in the custody of DOC.

 

23.   It is concluded, however, that because the administrative directives are neither federal laws nor state statutes, Administrative Directive 10.7 does not supersede the disclosure provisions of the FOI Act or authorize the respondent Commissioner of DOC to withhold public records that have been provided to an inmate pursuant to the FOI Act.

 

24.   However, 1-210(c), G.S., provides 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 . . .

 

25.   Section 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 . . . 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 . . .

 

26.   It is found that the respondent Commissioner of DOC believes that the redacted case report contains information that would not only put the complainant at risk of assault, but also other individuals named in the case report who are also in the custody of the DOC.

 

27.   It is found that the respondent Commissioner of DOC believes that inmates convicted of the types of crimes for which the complainant has been convicted, are often assaulted once other inmates learn of it, and thus, he makes every effort to keep all conviction information of all inmates confidential within the correctional facilities. 

 

28.   It is found that the respondent Commissioner of DOC believes that providing the complainant with a copy of the redacted case report would result in the disclosure of the complainant’s crimes, and would make the complainant, and the other individuals named in the case report, targets for assault. 

 

29.   It is found that the respondent Commissioner of DOC also believes, that if the redacted case report were provided to the complainant, other inmates will have access to them, by searching the complainant’s cell, and that the complainant and others would be further put at risk. 

 

30.   It is found that the respondent Commissioner of DOC provided credible testimony of specific instances in which inmates, convicted of the same crime as the complainant, were assaulted by other inmates once the information was disclosed within the prison facility. 

 

31.   After careful review of the in camera records, it is found that the redacted case report discloses the crimes for which the complainant was convicted and the names of other individuals convicted of the same crimes, who are also in the custody of DOC.

 

32.   It is found, based on the evidence in this case, that the respondent Commissioner of DOC has reasonable grounds to believe that disclosure of the redacted case report to the complainant 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 DOC, within the meaning of 1-210(b)(18), G.S.

 

33.   It is concluded, therefore, that the redacted case report is permissibly exempt from disclosure to the complainant pursuant to 1-210(b)(18), G.S., and it is concluded that the respondent Commissioner of DOC did not violate the disclosure provisions of the FOI Act by withholding the redacted case report from him.

 

34.  It is further found that, likewise, the information and records that were redacted and withheld by the respondent DPS are permissibly exempt from disclosure to the complainant pursuant to 1-210(b)(18), G.S. and thus, it is unnecessary to address the respondent DPS’s redactions and claimed exemptions.

 

35.      Finally, during the hearing in this matter, the respondent DPS objected to the complainant’s written testimony, which the complainant read into the record, and his brief, contending that some other individual had assisted the complainant, and was the actual author of the written testimony and brief.  The respondent DPS claimed that the other individual thereby had engaged in the unauthorized practice of law and moved to have the written testimony and the brief stricken from the record.

 

36.      It is found that the respondent DPS provided no credible evidence that the complainant’s testimony and brief were authored by another individual nor did it cite any statutory provisions that defined the assistance the complainant admitted to receiving from various inmates as the unauthorized practice of law.

 

37.      Consequently, the respondent DPS’s motion to have the complainant’s written testimony and brief stricken from the record is denied.

 

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 April 14, 2010.

 

 

____________________________

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:

 

Albert Farah #228922

MacDougall-Walker C I

1153 East Street South

Suffield, CT 06080

 

Commissioner, State of Connecticut,

Department of Public Safety;

State of Connecticut,

Department of Public Safety

C/o Lynn Wittenbrink, Esq.

Terrence M. O’Neill, Esq. and

Madeline A. Melchionne, Esq.

Assistant Attorneys General

110 Sherman Street

Hartford, CT 06105

 

Commissioner, State of

Connecticut, Department of Correction;

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/2009-252FD/sw/4/15/2010