FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Richard Stevenson,  
  Complainant  
  against   Docket #FIC 2010-691
Nancy Nicolescu, Director of
Communications, Legislative
Affairs and Candidate Service Unit,
State of Connecticut, State Elections
Enforcement Commission; State of
Connecticut, State Elections
Enforcement Commission; and
State of Connecticut, Department
of Correction,
 
  Respondents September 28, 2011
       

 

The above-captioned matter was heard as a contested case on June 1, 2011, at which time the complainant and 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), G.S.

 

2.      It is found that, by letter dated October 5, 2010, the complainant requested that the respondent State Elections Enforcement Commission (hereinafter “SEEC”) provide him with copies of the following records:

 

itemized contributions from committees, corporations and any other entities to Senator John A. Kissel, his campaign and committee.  The period should cover 2008 through the most present.  

 

The complainant requested that all addresses and telephone numbers be redacted.  The complainant further requested that the records be provided directly to him at his place of incarceration, and that they not be sent directly to the respondent Department of Correction (hereinafter “DOC”) at its central office. 

 

            3.   It is found that, by letter dated October 15, 2010, the respondent SEEC acknowledged the complainant’s request and informed him that such request was being processed.  It is further found that the SEEC also informed the complainant that only individuals, and not corporations or other entities, made contributions to Senator Kissel’s campaign.  

 

            4.   It is found that, by letter dated October 19, 2010, the complainant further requested that the SEEC redact the first names of any contributors to Senator Kissel’s campaign.

 

            5.   By letter of complaint dated October 26, 2010, and filed November 2, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with copies of the requested records.  The complainant requested the imposition of civil penalties in this matter.

 

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

 

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, …whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

            7.   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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.

 

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

 

            9.   It is concluded that the records requested by the complainant are public records within the meaning of 1-200(5), 1-210(a), and 1-212(a), G.S.

 

            10.  It is found that October 2010 was a busy time for the SEEC in that it was quite close to the 2010 election.  It is further found that redaction of the records, pursuant to the complainant’s wishes, took some time, as they numbered approximately two hundred pages.   Nevertheless, it is found that the SEEC attempted to provide all responsive records to the complainant, free of charge, under cover letter dated October 29, 2010.

 

            11.  It is found that SEEC directed the October 29, 2010 letter and the responsive records, described in paragraph 10, above, to the central office of the DOC, and not personally to the complainant at his place of incarceration.  At the hearing in this matter, the complainant alleged that this action violated his rights under the FOI Act, since it resulted in a delay in his receipt of the requested records, as well as in further redactions to such records. 

 

            12.  Section 1-210(c), G.S., provides in relevant part that:

 

Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility of such request, 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 or Whiting Forensic Division facility.

 

            13.  The complainant cites to a previous final decision by the Commission, Docket #FIC 2008- 683; Richard Stevenson v. Donna J. Micklus, Director of Communications, State of Connecticut, Department of Administrative Services; and State of Connecticut, Department of Administrative Services, in which the Commission analyzed 1-210(c), G.S.  In that final decision, the Commission informed the respondents therein that non-exempt records responsive to an inmate’s request must be provided to that inmate by mailing, or otherwise delivering, such records to the inmate at that inmate’s correctional institution or facility promptly after notifying the Commissioner of DOC of such request.  The complainant contends that the SEEC respondents in this matter should have complied with such procedure. 

 

            14.  However, subsequent to the issuance of the final decision in Docket #FIC 2008-683, the Commission adopted a method of compliance with 1-210(c), G.S., which provides, in relevant part, that a public agency “should deliver the documents requested by the incarcerated individual to the Department of Correction’s Freedom of Information Administrator at the following address: Department of Correction, Freedom of Information Administrator, 24 Wolcott Hill Road, Wethersfield, CT 06109.”

           

            15.  Based on the facts and circumstances of this case, it is found that the SEEC responded promptly to the complainant’s request, and correctly followed the Commission’s method of compliance with 1-210(c), G.S.   Accordingly, it is concluded that the SEEC respondents did not violate the FOI Act, as alleged in the complaint. 

 

            16.   It is found that, upon receipt of the requested records from the SEEC, the DOC made further redactions to the requested records.  Specifically, the DOC also redacted last names of contributors, and in some cases business names, if such business names would identify contributors.  For example, the names of sole proprietorships in some cases would inevitably identify the name of a contributor. The complainant contends that such redactions are in violation of the FOI Act.  

 

            17.  The DOC contends that the information it redacted from the requested records is permissibly exempt from disclosure pursuant to 1-210(b)(18), G.S.

 

            18.   Section 1-210(b)(18), G.S., exempts from mandatory disclosure:

 

Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, 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 or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

(A)  Security manuals, including emergency plans contained or referred to in such security manuals;

(B)  Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

(C)  Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(D)  Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

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

(F)  Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(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;

            19.  It is found that, even in unredacted form, the requested records are available on the website of the SEEC.  However, the fact that a record may be otherwise publicly available is not dispositive of whether the record is exempt under 1-210(b)(18), G.S.

 

            20.  The respondent DOC contends that disclosing any details which would identify contributors to Senator Kissel’s campaign to the complainant, or to any other inmate, 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. 

 

            21.   It is found that, in response to requests for copies of correctional officer disciplinary and personnel files made by specific inmates, including the complainant, Senator Kissel sponsored successful legislation which resulted in the enactment of 18-101f, G.S., which now provides that inmates shall not receive copies of such records.

 

            22.  The respondent DOC contends that the passage of 18-101f, G.S., which narrowed inmates’ FOI Act rights, has upset inmates and that any information leading to identification of contributors to Senator Kissel’s campaign which could be circulated in the prison population may lead to harassment of, or physical harm to, those contributors, either by inmates or by their outside associates.  The respondent DOC also contends that, if a correctional officer is identified as a campaign contributor, it may make that officer more vulnerable to a targeted assault by an inmate.  The respondent DOC also contends that the records at issue could be bartered within the prison for contraband. 

 

            23.    Based upon the facts and circumstances of this case, it is found that the Commissioner of Correction has reasonable grounds to believe that disclosure of the redacted portions of the requested records, described in paragraph 16, above, may result in a safety risk, within the meaning of 1-210(b)(18), G.S., and consequently, it is concluded that such records are exempt from disclosure.  It is concluded that the respondent DOC did not violate the FOI Act by redacting those portions. 

 

 

 

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

 

1.       The complaint is dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 28, 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:

 

Richard Stevenson #156074

MacDougall-Walker Correctional Institution

1153 East Street South

Suffield, CT  06080

 

Nancy Nicolescu, Director Communications, Legislative Affairs and

Candidate Service Unit, State of Connecticut, State Elections

Enforcement Commission; State of Connecticut, State Elections

Enforcement Commission;

c/o Joshua Foley, Esq.

State of Connecticut, State Elections Commission

18-20 Trinity Street

Hartford, CT  06106

 

and State of Connecticut, Department Correction

c/o Terrence O’Neill, Esq.

State of Connecticut, Office of the Attorney General

110 Sherman Street

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-691/FD/cac/9/28/2011