FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
James McKinnon,  
  Complainant  
  against   Docket #FIC 2009-470

Commissioner, State of Connecticut,

Department of Correction; and State

of Connecticut, Department of Correction,

 
  Respondents June 23, 2010
       

 

The above-captioned matter was heard as a contested case on December 11, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts 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), G.S.

 

2.      It is found that by letter dated June 19, 2009, the complainant made a request to the respondents for a copy of records related to a complaint he filed against a Correctional Officer Murphy (hereinafter “the Murphy request”) and for records related to three grievances identified by the complainant as IGP #040-09-07, IGP #104-09-038, and IGP #140-09-040. 

 

3.      By letter dated August 10, 2009 and filed on August 14, 2009, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his records request.

 

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:

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 . . . 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 the requested records, to the extent such records exist, are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

8.      It is found that the complainant incorrectly identified one of the grievances as IGP #104-09-038, which the respondents recognized as an error, and that the correct number is IGP # 140-09-038.

 

9.      It is found that, on or about October 13, 2009, the complainant was provided with a copy of all records related to the grievances IGP # 140-09-038 and IGP #140-09-040. 

 

10.   It is found that there are no records responsive to the complainant’s request for records related to IGP #040-09-07 because that reference number does not exist within the respondent department. 

 

11.   It is found, however, that in light of the error the complainant made in identifying IGP #140-09-038, the respondents searched for a grievance filed by the complainant with the number IGP # 140-09-07. 

 

12.   It is found, however, that the grievance filed in IGP #140-09-07 was not filed by the complainant and therefore, that record is not responsive to his request.

 

13.   With respect to the complainant’s Murphy request, the complainant contended that he filed a written complaint alleging that Correctional Officer Murphy destroyed his personal property during an inspection of his cell, which incident occurred while the complainant was confined at Corrigan Correctional Institution.

 

14.   It is found that the original search for records responsive to the Murphy request was limited to records maintained at Osborn Correctional Institution, the facility at which the complainant was confined at the time of his request, because the respondents were not aware that the incident the complainant referred to in his request occurred at another facility. 

 

15.   It is found that, once the respondents learned that the complaint against Correctional Officer Murphy was filed at Corrigan Correctional Institution, the deputy warden of that facility searched through every record maintained by that facility related to the complainant and found no record of a complaint filed by the complainant against Correctional Officer Murphy.

 

16.   Based upon the findings in paragraphs 8 through 15, above, it is found that the respondents have conducted diligent searches and made reasonable efforts to identify and provide all records responsive the complainant’s request, and that they do not maintain any records responsive to the Murphy request or to records related to the grievance identified by the complainant as IGP #040-09-07.

 

17.   With respect to the respondents’ delay in complying with the complainant’s request, it is found that the delay was due to the large number of employees who accepted the early retirement package offered by the Governor during the month of June 2009, which resulted in certain functions within the respondent department not being performed because the retirees’ positions had not been filled. 

 

18.   It is found that two of the positions affected by the retirements described in paragraph 17, above, included the FOI Liaison at Corrigan Correctional Institution, who facilitates all inmate FOI requests and the respondent department’s District Administrator, who maintains the records responsive to the complainant’s request for grievance records.

 

19.   It is found that it took some time for the positions to be filled and for the respective employees to become familiar with the work in those positions.

 

20.   At the hearing on this matter, the complainant contended that the respondents should have been ready and able to respond to his request in spite of the early retirements.

 

21.   It is found, however, that once the positions were filled and the employees became familiar with the work, the complainant’s request was responded to in a timely manner. 

 

22.   Based on the facts and circumstances of this case, it is found that the respondents did not unduly delay complying with the complainant’s request.

 

23.   It is concluded that the respondents did not violate the FOI Act as alleged by 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 June 23, 2010.

 

 

 

____________________________

Cynthia A. Cannata

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:

 

James McKinnon #100770

Osborn Correctional Institution

335 Bilton Road

P.O. Box 100

Somers, CT  06071

 

Commissioner, State of Connecticut, Department of Correction; and

State of Connecticut, Department of Correction

c/o Nancy Kase O’Brasky, Esq.

State of Connecticut,

Department of Correction

24 Wolcott Hill Road

Wethersfield, CT  06109

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

FIC/2009-470/FD/cac/6/25/2010