FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Luis Pacheco,  
  Complainant  
  against   Docket #FIC 2009-366

Commissioner, State of Connecticut,

Department of Correction; and

State of Connecticut,

Department of Correction,

 
  Respondents May 26, 2010
       

 

The above-captioned matter was heard as a contested case on April 16, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 

 

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 March 10, 2009, the complainant made a records request to Joan Ellis, Administrator, Freedom of Information Office, of the respondent Department of Correction (“DOC”) for a copy of: a) “the statement the Department of Correction received on 12-22-06 from the Federal Bureau of Investigation regarding an alleged escape plan on my behalf”; b) “Warden Sieminski’s memo dated 1-4-07 to Director Levesque”; and c) the related “Waterbury Police Activity Report”.   

 

3.         It is found that, by letter dated March 17, 2009, Ms. Ellis acknowledged the complainant’s request.

 

4.         It is found that, following additional correspondence between the parties, the complainant, by letter dated April 22, 2009 to Stephen Clapp of the respondent DOC, restated a portion of his request for “a copy of the statement that another inmate disclosed to the F.B.I. on December 22, 2006 alleging a suppoing [sic] ambush attack on vehicles transporting me to Waterbury Superior Court.” The complainant requested a redacted copy of the record in the event that a portion of the record was deemed exempt from mandatory disclosure.

 

5.         It is found that, by letters dated May 1 and May 26, 2009, Mr. Clapp declined to provide records within the scope of the complainant’s requests, claiming the exemption for “safety and security” at 1-210(b)(18), G.S. However, Mr. Clapp’s letter dated May 26, 2009 included as an enclosure the Notification of Hearing previously provided to the complainant during the Administrative Segregation hearing process. This Notification stated that the complainant was reviewed for “placement on Administrative Segregation status” because the respondent DOC “received information from the Federal Bureau of Investigation… [that] several gang members were going to ambush the transporting vehicles carrying Inmate Pacheco and attempt to free him.”

 

6.          By letter dated June 15, 2009 and filed June 19, 2009, the complainant appealed to this Commission, alleging that the respondent DOC violated the Freedom of Information Act (“FOIA”) by failing to comply with his records request.

 

7.          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. 

 

8.           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.

 

9.         It is found that, by letter dated April 7, 2010, Mr. Clapp provided the complainant with a redacted copy of the record described at paragraph 2.b), again claiming 1-210(b)(18), G.S., as the legal basis for the redaction. At the hearing, the respondents provided counsel to the complainant with an unredacted copy of the record described at paragraph 2.b), subject to the following stipulation between the parties: complainant’s counsel may show the memo to the complainant, but not allow the complainant to retain a copy. The parties agreed that the issues remaining for adjudication were the records described at paragraphs 2.a), 2.c), and 4.

  

10.     It is found that the respondents do not maintain any record as described at paragraph 2.a). Nor do the respondents maintain any direct statement by an inmate to the Federal Bureau of Investigation, as requested in the complainant’s April 22, 2009 letter (paragraph 4, above). Rather, the respondents do maintain a record in the form described at paragraph 2.c), which contains the substantive information described in paragraphs 2.a) and 4. The respondents offered, and the Commission received, this single page record for in camera review (the “requested record”). 

 

11.   Section 1-210(b)(18), G.S., provides in relevant part that nothing in the FOIA 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 . . .

 

12.      It is concluded that the requested record is a public record within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

13.   Mr. Clapp testified and it is found that the requested record details a statement made by an inmate concerning an escape attempt involving another inmate. Based upon testimony and an in camera review, it is also found that the requested record contains information from and about a confidential informant that, if provided to certain inmates, would reveal the identity of the confidential informant. The requested record does not directly disclose the name of the confidential informant. However, as noted at paragraph 2, above, the complainant’s March 10, 2009 letter refers to: “an alleged escape plan on my behalf” (emphasis added).

 

14.   It is found that Mr. Clapp provided credible testimony of specific instances in which inmates believed by other inmates to be informants were assaulted once they were identified as informants within a prison facility. 

 

15.   It is found that the respondent Commissioner of DOC has reasonable grounds to believe that confidential informants are often assaulted, and may even be murdered, once other inmates learn their identity. Thus, the respondent Commissioner makes every effort to keep the identity of informants confidential within correctional facilities. 

16.    It is found that the respondent Commissioner of DOC also has reasonable grounds to believe that, if the requested record were provided to the complainant, other inmates would have access to it and that the confidential informant would be put at additional risk. (See the reference to “gang members” at paragraph 5, above.) 

 

17.   Based upon a review of the in camera record, it is found that the requested record could not be redacted and disclosed in a manner that would void the findings detailed in paragraphs 13 through 16, above.  

 

18.   It is concluded that the respondent Commissioner of DOC had reasonable grounds to believe that disclosure of the requested record may result in a safety risk, including the risk of harm to a person, or a disorder in a correctional institution or facility under the supervision of DOC, within the meaning of 1-210(b)(18), G.S.

 

19.   It is concluded that the requested record is exempt from mandatory disclosure pursuant to 1-210(b)(18), G.S. It is finally concluded that the respondent Commissioner of DOC did not violate the disclosure provisions of the FOIA by declining to disclose the requested record to the complainant.

 

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 May 26, 2010.

 

 

 

____________________________

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:

 

Luis Pacheco

c/o Martin J. Minnella, Esq.

Moynahan and Minnella, LLC

141 East Main Street

Waterbury, CT 06702

 

Commissioner, State of Connecticut,

Department of Correction; and

State of Connecticut,

Department of Correction

c/o Nicole Anker, Esq.

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT 06109

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2009-366FD/paj/5/28/2010