NO. CV 08 4016168S

STATE OF CONNECTICUT, DEPARTMENT
OF PUBLIC SAFETY

V.

FREEDOM OF INFORMATION COMMISSION,
HEATHER NANN COLLINS, ALEXANDER
WOOD AND THE MANCHESTER JOURNAL
INQUIRER
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SUPERIOR COURT


JUDICIAL DISTRICT OF

NEW BRITAIN




March 24, 2009

MEMORANDUM OF DECISION

The plaintiff, department of public safety (DPS), appeals from a final decision of the defendant freedom of information commission (FOIC), initially dated November 14, 2007, modified on October 22, 2008, ordering the DPS to disclose information to the defendant (FOIC complainant) Alexander Wood.1

To set forth the background to the Wood complaint to the FOIC, the court turns to Chapter 969 of the General Statutes, formally entitled "Registration of Sexual Offenders," informally known as "Connecticut's Megan's Law."2 Under 54-257 (a), the DPS is to establish and maintain a central registry of all persons convicted of sexual offenses against minors. The DPS must develop the appropriate forms for persons required to register to disclose their "registration information." On receipt, the DPS must enter the provided registration information into the registry and notify the local police of the registration information.

The term "registration information" is not defined. Sections 54-251, 54-252, 54-253, 54-254, and 54-257 (b) indicate that the registrant (a person convicted of a sexual offense) must supply his name, identifying factors (such as fingerprints and a DNA sample), criminal history record, address, e-mail address, and current photograph.

Under 54-255 (a), at the time of conviction, a "court may order the Department of Public Safety to restrict the dissemination of the registration information to law enforcement purposes only and to not make such information available for public access, provided the court finds that dissemination of the registration information is not required for public safety and that publication of the registration information would be likely to reveal the identity of the victim within the community where the victim resides." Subsection (b) of 54-255 similarly provides that the court has the discretion to enter this order where a relative is the victim.

Section 54-258 sets forth the general rule on disclosure of the registry by the DPS. Under subsection (a) (1), the registry is a public record, available at the offices of the DPS or on the internet. Subsection (a) (4) sets forth an exception that is applicable to this appeal: "[R]egistration information the dissemination of which has been restricted by court order pursuant to section 54-255 and which is not otherwise subject to disclosure, shall not be a public record and shall be released only for law enforcement purposes until such restriction is removed by court pursuant to said section." Connecticut's Megan's Law, with its intent of public disclosure, was held constitutional in Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S. Ct. 1160,155 L.Ed 2d 98 (2003).

With reference to these statutes, the court next sets forth the factual situation that led to this appeal. On March 19, 2007, Wood (and another journalist) wrote to the DPS requesting "a list of the names and addresses of 41 convicted sex offenders, whose names are currently known only to law enforcement personnel under" 54-255 or alternatively for the court orders "restricting those 41 sex offenders to the non-public sex offender registry, and any public information the Department has regarding the offenders' convictions."

This request later led to a complaint to the FOIC. Subsequently, the DPS made available to Wood ninety-two redacted pages of records. The identical records, without redactions, were provided by the DPS to the FOIC in camera, but the DPS argued that these documents should only be released by the FOIC to Wood as redacted.

The DPS based its right to redact under Freedom Of Information Act (FOIA) 1-210 (a), claiming a statutory exemption under the Megan's Law provisions set forth above. It contended that "registration information," or at least the "spirit and intent" of "registration information," meant any information in the files of the DPS sex registration unit that would lead to the identification of the convicted party and/or the victim. Since all "registration information" in these circumstances had been restricted by a court pursuant to 54-255, Wood was entitled to receive only the heavily redacted records.

The FOIC's final decision of November 14, 2007 reasoned that the term "registration information," while not defined in the General Statutes, meant only that information supplied by the convicted party under 52-251 to 52-254. Thus "registration information" meant:

  1. name and alias(es)
  2. addresses
  3. visible scars, marks, tattoos
  4. race
  5. date of birth
  6. hair and eye color
  7. sex
  8. hair and weight
  9. a photograph of the registered sex offender
  10. crimes(s) requiring registration and description
  11. date convicted
  12. SPBI number

(Return of Record, ROR, p. 290)

Having concluded that this list of items was "registration information," the FOIC summarized the information sought by Wood as follows:

  1. name, address, date of birth, and date of conviction of sex offender
  2. town where offense occurred, and date of offense
  3. docket number
  4. name and location of court
  5. name of judge
  6. names of clerk, assistant clerk, and deputy clerk
  7. names of prosecuting and defense attorneys
  8. date of plea
  9. date of disposition
  10. date sentenced
  11. name and address of applicant on application to restrict dissemination of registration information, where the applicant is also the registered sex offender
  12. name and address of applicant to restrict dissemination of registration information, where the applicant is different from the registered sex offender.

(ROR, p. 291).

Based on the FOIC's definition of "registration information," as set forth above, the FOIC concluded that of the records sought by Wood, only those designated "a" and "k" were exempt pursuant to the court order issued under 54-255. It ordered the DPS to release the records designated "b" through "j" as well as "I" without deletions. (ROR, p. 294).

On December 31, 2007, the DPS timely appealed this final decision of the FOIC to the Superior Court pursuant to 4-183. On May 12, 2008, in a written order and again at a hearing on July 29,2008, the court expressed concern that the DPS had read the protections of 54-255 too broadly, but also that the FOIC had defined the term "registration information" too narrowly. The case was remanded on July 29,2008, for clarification by the FOIC pursuant to Lisee v. Connecticut Human Rights and Opportunities Commission, 258 Conn. 529, 538, 782 A.2d 670 (2001) (remand proper when court concludes that administrative decision is incomplete and not ready for adjudication).

Thereafter, on May 29 and July 31, 2008, Wood wrote to the FOIC stating that he only sought full disclosure of the following items from the November 14, 2007 decision:

  1. name and location of court
  2. name of judge
  3. name of clerk, assistant clerk, and deputy clerk
  4. names of prosecuting and defense attorneys

(Supp. ROR, p. 36)

The FOIC considered the Wood letters and on October 22, 2008 issued a revised decision. In paragraph 30, the final decision states: "Accordingly, it is concluded that the Commission need not determine whether redaction of the information listed in paragraphs 29.a through 29.c, and 29.h through 29.1, violates the FOI Act."

The revised decision continues:

"31. With respect to the limited information now at issue in this case, described in paragraphs 29.d through 29.g, above, it is found that such information is administrative information contained in court records, and is not information about the registrant that would identify the registrant to the general public. Moreover, it is found that the [DPS] failed to prove that the court records at issue are sealed at the court, or are otherwise unavailable for public inspection, or that the information at issue is not publicly known.

32. It is therefore concluded that the information described in paragraphs 29.d through 29. g, is not "registration information" within the meaning of 54-255, G.S., 54-257, G.S., 54-258 (a) (1), G.S., and 54-258 (a) (4), G.S.

33. Accordingly, it is concluded that the [DPS] violated [FOIA] in redacting the information described [in these] paragraphs, above, from the [in camera] records ...."

The FOIC ordered the DPS to provide Wood with unredacted copies of the records that it found fully disclosable and concluded that DPS had correctly furnished Wood redacted records as to the remaining (in camera) material. (Supp. ROR, pp. 36-37). The DPS returned to court to contest the revised final decision.3

Clearly the FOIC has changed its approach in the first and second decisions. The first decision defined "registration information" narrowly to include only the data that the registrant is obliged to furnish to the DPS for its registry. Thus, according to the FOIC, court orders to restrict disclosure issued pursuant to 54-255 did not block disclosure of such matters as the date of the offense, the court docket number, or the date of sentence. The FOIC in this decision was aware that making such items known would increase the likelihood of finding out the name of the offender and hence the name of the victim4

The revised decision depends first of all on the fact that Wood has limited his request. But the FOIC has also changed its underlying analysis. Paragraph 26 notes that the general public should not receive "registration information" if it would "identify registrants where such information would lead to the identification of the registrant's victim." Further, paragraph 27 states: "It is concluded that 'registration information' . . . means information about the registrant that would identify the registrant." Further, the FOIC reviewed in camera the information as now requested by Wood and concluded that the disclosure of such information would not identify the registrant.5

The DPS has appealed from the revised final decision on two grounds. The first is that the FOIC erred in concluding that the records ordered disclosed were "public records." In its second argument, DPS contends that the FOIC has ordered records disclosed that were ordered restricted by a court pursuant to 54-255.

The court reviews the DPS' grounds of appeal under the following standard: "[J]udicial review of an administrative agency's action is limited by the Uniform Administrative Procedure Act . . . . The scope of review is very restricted. Neither this court nor the trial court may retry the case or substitute its judgment for that of the commission. Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically follow from those facts. . . . [In addition] when the legislature intentionally uses broad terms without definition, it evinces a judgment that the agency should define the parameters of the broad terms of relevant statutes on a case-by-case basis . . . . The practical construction placed on the statute by the agency,6 if reasonable, is highly persuasive." (Citations omitted; quotation marks omitted.) Wiese v. Freedom of Information Commission, 82 Conn. App. 604, 609, 847 A.2d 1004 (2004). See also Lewin v. Freedom of Information Commission, 91 Conn. App. 521, 525, 881 A.2d 519, cert. denied, 276 Conn. 921, 888 A.2d 88 (2005): "Because the issues presented here relate to the application of 1-210 (b) (1) to the facts of this case, the applicable standard of review is whether the commission abused its discretion."

The DPS claims that the FOIC's erroneously found the documents ordered disclosed to Wood to be "public records." On the other hand, "public records" are "any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency . . . . " 1-200 (5). Here the registry maintained by the DPS is, in statutory language, "a public record and shall be accessible to the public during normal business hours." 54-258 (a) (1). It is true that the access to these records is limited by 54-258 (a) (4), but merely because there are exceptions to this disclosure, the information is no less a "public record." Fromer v. Freedom of Information Commission, 90 Conn. App. 101, 109, 875 A.2d 590 (2005).

The more important issue as raised by the DPS is to what extent the exemption of  54-258 (a) (4) applies. In its revised decision, the FOIC interpreted the following phrase: "registration information the dissemination of which has been restricted by court order pursuant to section 54-255 and which is not otherwise subject to disclosure, shall not be a public record and shall be released only for law enforcement purposes until such restriction is removed by the court pursuant to said section."

As indicated above, the FOIC's revised decision, concludes that "registration information" means information that the DPS is prohibited from releasing, pursuant to court order, that would divulge the name of the victim. This exempt information would include the information in the registry itself as well as any other information held by the DPS. The FOIC has employed this standard to conduct an in camera review of the information presently sought by Wood.

The court concludes that the FOIC's interpretation is in keeping with the intent of both 54-255 and 54-258 (a).7 Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 99, 801 A.2d 759 (2002). The requested documents were possibly exempt because of the court orders, but are, after an in camera review, "otherwise subject to disclosure."

The DPS argues that all information in the possession of its sexual offender unit should be protected by court orders issued pursuant to 54-255, but the public interest in disclosure that characterizes the sexual offender registry has led the FOIC to conclude otherwise. As indicated in the Wiese case above, the scope of the statutory exemption of 54-258 (a) (4) should be determined on a case-by-case basis. As the FOIC has not abused its discretion in its order to the DPS, the appeal is dismissed.







Henry S. Cohn, Judge






1
Other FOIC complainants in this matter were Heather Nann Collins and the Manchester Journal Inquirer. While they are named as defendants by the DPS, they have not actively participated in this appeal.


2
The court's summary of Megan's Law omits certain portions of statutes not relevant to the resolution of this appeal.


3
The court finds that the DPS is aggrieved by the final decisions of the FOIC in ordering the release of the information. State Library v. Freedom Of Information Commission, 240 Conn. 824, 694 A.2d 1295 (1997).


4
See the discussion between the assistant attorney general representing the DPS and the chairman of the FOIC on November 14, 2007: The chairperson: "[T]here's nothing to prevent me from going to court and requesting all cases . . . for the last 10 months . . . . [Y]our concern is that [under the decision] I'm going the end around and I'm going to find out this victim's name." The assistant attorney general replied: "Well, you can certainly go to the courts. . . . What I'm telling you is that if the [DPS] receives information for the purpose of its registry about a given offender, and that information is likely to reveal their identity, and they've been ordered not to redisclose that identity, then this Commission should not order [the DPS] to do so. It contravenes the state statute." The FOIC, according to the assistant attorney general, was illegally giving the complainant a "piece of the puzzle." (ROR, pp.273, 277).


5
The revised FOIC decision is in keeping with 54-86e: "The name and address of the victim of a sexual assault . . . and such other identifying information pertaining to such victim as determined by the court, shall be confidential . . . ."


6
The Appellate Court is relying on Ottochian v. Freedom of Information Commission, 221 Conn. 393, 399, 604 A.2d 351 (1992) and the "agency" is the FOIC, not the state agency retaining the documents.


7
Pursuant to 1-2z, the court finds the text of these statutes "plain and unambiguous" so that consideration of the legislative history is unnecessary. The legislative history, even if consulted, indicates that the intent is, where appropriate, to allow a court to "waive the public aspect of the Megan's Law registration. And the reason for that is not in any way a sensitivity to the offender, it's a sensitivity to the victim." House of Representatives, Rep. Lawlor, June 1, 1999, p. 3884.