FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Alaine Griffin and

The Hartford Courant,

 
  Complainants  
  against   Docket #FIC 2010-180
Brian Murphy, Commissioner,
State of Connecticut,
Department of Correction;
Joan Ellis, Administrator,
State of Connecticut,
Department of Correction,
Freedom of Information Office; and
State of Connecticut,
Department of Correction,
 
  Respondents February 23, 2011
       

 

            The above-captioned matter was heard as a contested case on September 9, 2010, at which time the complainants and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

On March 18, 2010, Attorneys Patrick J. Culligan and Thomas J. Ullman filed a motion to intervene in the above-captioned matter on behalf of Steven Hayes, who is the subject of the requested records at issue in this matter.  At the September 9, 2010 hearing, Mr. Hayes was granted party status.

 

 

            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 February 15, 2010, the complainants made a request to the respondents for inspection and copying of the following documents: 

 

[a]  Any and all initial reports regarding the Jan. 30/31, 2010 emergency incident involving inmate Steven Hayes, No. 97425, at the MacDougall-Walker Correctional Institution in Suffield, Conn.;

 

[b]  Any and all investigatory reports conducted by the Connecticut Department of Correction regarding the Jan. 30/31, 2010 emergency incident involving inmate Steven Hayes, No. 97425, at the MacDougall-Walker Correctional Institution in Suffield, Conn.; and

 

[c]  Any and all reports regarding transfers of inmate Steven Hayes, No. 97425, to and from MacDougall-Walker Correctional Institution in Suffield, Conn. 

 

3.      It is found that, by email dated February 16, 2010, the respondents denied the complainants’ request on the basis that a gag order issued by the Superior Court in the capital felony case, State of Connecticut v. Steven Hayes, New Haven Superior Court, Docket No. NNH-CR07-0241859-T, prohibited the respondents from releasing any information pertaining to Steven Hayes.

 

4.      By letter dated and filed on March 15, 2010, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide them with copies of the records, described in paragraph 2, above.  The complainants also requested the imposition of a civil penalty against the respondents.

 

5.      Section 1-200(5), G.S., defines “public records or files” as:

 

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.      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.  [Emphasis added.]

 

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

 

8.      It is found that the records requested by the complainants 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.

 

9.      It is found that, by facsimile dated March 19, 2010, the respondents provided the complainants with 19 pages of documents responsive, in part, to the complainants’ request, described in paragraph 2, above.[1]  With respect to any outstanding documents, the respondents denied the request, stating that, in addition to the gag order, described in paragraph 3, above, the following exemptions apply to the records: 52-146c, 52-146d, 52-146e, 52-146o, 1-210(b)(1), 1-210(b)(2), 1-210(b)(3), and 1-210(b)(18), G.S.    

 

10.  At the hearing in this matter, the respondents claimed that the requested records are exempt under 1-210(b)(18), G.S.

 

11.  Section 1-210(b)(18), G.S., provides in relevant part:

 

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 . . .

 

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

 

12.  Deputy Commissioner James Dzurenda, testified on behalf of the Department of Correction (DOC), that disclosure of the records, described in paragraph 9, above, may result in a risk of harm to inmates and staff in a correctional institution and facility.  He stated that when the DOC has a serious life-threatening incident, such as the emergency incident resulting in the transfer of inmate Steven Hayes from the MacDougall-Walker Correctional Institution to the University of Connecticut John Dempsey Hospital, the security division conducts a security audit of any flaws in the correctional system existing at the time of such an incident and reviews whether any improvements can be made to enhance safety and security in the correctional institution in order to protect the inmates and DOC staff.  Deputy Commissioner Dzurenda also stated that the investigation report for such an incident would consist of escort procedures for the transportation of a high risk/high security inmate, log book entries (including inmate movement and staff assignments), video camera footage (including descriptions of any blind spots), inmates’ medical information (including specific medications and how they are assembled and dispensed), incident reports, and interview statements.  Deputy Commissioner Dzurenda claimed that if such information was disclosed inmates could manipulate the system and circumvent safety measures set up to prevent inmates from escaping correctional institutions and facilities, and from harming themselves or other inmates and DOC staff. 

 

13.  Suzanne Ducate, the Director of Psychiatry for the DOC overseeing the mental healthcare of inmates within the DOC, also testified on behalf of the respondents.  Dr. Ducate stated that after emergency incidents involving a medical and/or mental health issue, such as the emergency incident involving Steven Hayes, the DOC will perform a security investigation involving both DOC custody and medical and mental health personnel (including members of the DOC’s Health and Addiction Services Unit) to ascertain what issues arose from a security standpoint that might have led to the incident, and to review and update DOC policies and procedures to prevent any further breaches to safety and security.  She further testified that there is a very real risk that disclosing a security audit, which incorporates medical and mental health records specifically outlining how an inmate caused self-injury or completed suicide, would increase the risk of suicide attempts or completed suicides within correctional institutions and facilities. 

 

14.  At the hearing, the complainants, through counsel, stated that they were not seeking any documents that include confidential medical or health treatment records or any documents which might be exempt pursuant to 1-210(b)(18), G.S.

 

15.  By order of the Commission, dated September 23, 2010, the respondents were ordered to produce the records at issue to the Commission for in camera inspection.  On October 5, 2010, the intervenor, Steven Hayes, filed an appeal to the full Commission of such in camera order, as well as a motion to stay such in camera order.  Both the appeal and the motion to stay were denied by the full Commission at its October 27, 2010 meeting.  Subsequently, on October 28, 2010, counsel for the intervenor filed an administrative interlocutory appeal with the Superior Court from the Commission’s October 27th denials.  The Commission thereafter filed a motion to dismiss such interlocutory appeal, which was granted by the Superior Court on December 7, 2010.  The intervenor then filed a motion for reconsideration of the dismissal of his appeal, which was denied by the Court on December 28, 2010, on the grounds, inter alia, that the federal Health Insurance Portability and Accountability Act (HIPAA) did not bar in camera review by the Commission, and that no psychiatrist-patient privileged documents were at issue.

 

16.  On December 29, 2010, the respondents submitted to the Commission a memorandum regarding in camera inspection of the records at issue as well as an unredacted and redacted set of such records, for an in camera review.  The in camera records are hereinafter identified as IC-2010-180-1 through IC-2010-180-132.[2] 

 

17.  On January 14, 2011, the respondents, through their attorney, requested the return of the unredacted in camera records described in paragraph 16, above.  The respondents, relying on Falco v. Institute of Living, 254 Conn. 321 (2000), argued that 52-146e, G.S., specifically prohibits the in camera disclosure or transmission of the records at issue here.  The request for the return of the unredacted in camera records IC-2010-180-1 through IC-2010-180-132 was denied by the hearing officer. 

 

18.  On the index to the in camera records, the respondents claim that 1-210(b)(18)(E), G.S., exempts from disclosure in camera records IC-2010-180-1 through IC-2010-180-132, in their entirety.[3]  The respondents did not claim on the in camera index that the gag order described in paragraph 3, above, was a basis to withhold the records.

 

19.  Based upon a careful review of in camera records IC-2010-180-1 through IC-2010-180-132, it is found that they constitute an internal security audit of correctional institutions and facilities within the meaning of 1-210(b)(18)(E), G.S.  It is found that such audit includes:  an emergency medical incident report, emergency escort procedures, security procedures in restrictive housing units, locations of cameras (including, identification of blind spots in the correctional facility), inmate location and housing assignment, staff assignments and rosters, log book entries, sex offender identifications, inmate profiles, interview statements, and a security audit memorandum.  It is also found that throughout the narrative of the internal security report there are specific references to medications prescribed and how such medications are assembled and dispensed.  It is further found that there are 19 pages of medical records pertaining to Steven Hayes, which the respondents received in the course of the security investigation, and incorporated into the security audit report.

 

20.  It is found that disclosure of the in camera records, described in paragraph 19, above, could create a risk that the inmate population could learn how to circumvent the respondents’ safety and security techniques.

 

21.   It is further found that the Commissioner of Correction has reasonable grounds to believe that disclosure of in camera records IC-2010-180-1 through IC-2010-180-132 may result in a risk of harm.

 

22.  Upon careful review of in camera records IC-2010-180-1 through IC-2010-180-132, it is found that they are exempt from disclosure pursuant to 1-210(b)(18)(E), G.S.

 

23.  It is therefore concluded that the respondents did not violate the disclosure provisions of 1-210(a) and 1-212(a), G.S., by not providing the complainants with copies of the in camera documents described in paragraphs 16 and 19, above.

 

24.  In light of the Commission’s conclusion described in paragraph 23, above, it is not necessary to consider the respondents’ other claims of exemption.

 

25.   The Commission denies the relief that the complainants requested at paragraph 4, above. 

 

 

            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 February 23, 2011.

 

 

__________________________

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:

 

Alaine Griffin and the Hartford Courant

c/o William S. Fish, Jr., Esq.

Hinckley, Allen & Snyder LLP

20 Church Street

Hartford, CT  06103

 

Brian Murphy, Commissioner, State of Connecticut, Department of Correction;

Joan Ellis, Administrator, State of Connecticut, Department of Correction,

Freedom of Information Office; and State of Connecticut, Department of Correction

c/o Terrence M. O’Neill, Esq. And

Steven R. Strom, Esq.

Assistant Attorneys General

Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

Steven Hayes,

c/o Patrick J. Culligan, Esq.,

M. Fred DeCaprio, Esq., and

John Cizik, Esq.

Office of the Chief Public Defender

Capital Defense & Trial Services Unit

30 Trinity Street, 4th Floor

Hartford, CT  06106

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-180/FD/cac/2/24/2011

 



[1]  Enclosed with their March 19th facsimile to the complainants, the respondents included copies of the following documents:  (1) a copy of the movement sheet of inmate Hayes #97425, reflecting all of inmate Hayes’ admissions, movements and discharges within the Department of Correction; (2) copies of 11 emails between the Department of Correction Public Information Office and the media concerning the January 30, 2010 incident (with information concerning other inmates redacted as not responsive to the complainants’ February 15th request); (3) a copy of a memo from Acting Department of Correction Commissioner Carol Salsbury to Lisa Moody regarding the incident; and (4) a copy of a February 10, 2010 email from Brian Garnett to Adam Liegeot regarding an article on the incident.

 

[2]  The Commission takes note that even though the respondents reference a record on the in camera index as #113, describing it as a medical document on Steven Hayes, no record with reference #113 was included in the set of unredacted records submitted to the Commission for in camera inspection. 

[3]  On the index to the in camera records, the respondents also claim that 1-210(b)(2), 1-210(b)(18)(G), 52-146c, 52-146d, 52-146o, G.S., attorney work product, attorney-client privilege, and HIPAA, exempt from disclosure various of the respective records.