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Final Decision FIC2013-541
In the Matter of a Complaint by
FINAL DECISION
Lindsey Edwards,
     Complainant
     against
Docket #FIC 2013-541
CTO Washington, FOI Liaison, State of Connecticut,
Department of Correction, MacDougall-Walker
Correctional Institution; Commissioner,
State of Connecticut, Department of Correction; and
State of Connecticut, Department of Correction,
     Respondents
June 25, 2014

     The above-captioned matter was heard as a contested case on May 29, 2014, at which time the complainant and the 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, 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 July 25, 2013, the complainant made a request to the respondents for copies of a disciplinary report concerning the complainant, dated July 25, 2013, and for related records including the incident report and transcripts of relevant telephone calls (all together sometimes herein the “requested records”).
     3.  It is found that, by memorandum dated August 21, 2013, the respondents denied the request for the relevant incident report, claiming a “risk of the safety and security of a correctional institution.” The memorandum stated that the “advocate and investigator reports” were being “gathered and reviewed.”
     4.  By letter of complaint dated August 25, 2013, and filed on September 9, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to comply with the request described in paragraph 2, above. The complaint requested that the Commission perform an in camera inspection and also requested the imposition of civil penalties.
     5.  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 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 1-212.
     7.  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.”
     8.  It is found that, to the extent that the respondents maintain the records described in paragraph 2, above, such records 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, among the requested records, the complainant was provided eight pages, which included redacted copies of a disciplinary report, an investigator’s report and an advocate report, all of which were dated July 25, 2013.
     10. At the hearing, the respondents claimed the exemption at §1-210(b)(18), G.S., as the basis for withholding the requested records, except for the disclosures described in paragraph 9, above. The respondents also agreed to provide a copy of the requested records to the Commission for in camera inspection immediately following the hearing. 
     11. It is found that the in camera records consist of ninety-three pages, which together constitute the incident report and supporting records that purport to substantiate the disciplinary report dated July 25, 2013. Copies of the disclosed records, described at paragraph 9, above, are included among the in camera records without redaction. The in camera records are designated herein as IC 2013-541-001 through IC 2013-541-93.
     12. With regard to their §1-210(b)(18), G.S., claim of exemption, that section provides, in relevant part, that “[n]othing in the Freedom of Information Act shall be construed to require 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….”
     13. A witness for the respondents testified, and it is found, that the wife of the complainant was in contact with high level gang members. It is found that incidents in correctional facilities involving gang members are different from non-gang related incidents, because such incidents often involve the entire membership of gangs, not just isolated individuals.
     14. After review of IC 2013-541-001 through IC 2013-541-93, it is found that, except for the disclosures described at paragraph 9, above, all of the in camera records describe gang activity within the MacDougall-Walker Correctional Institution, or, describe gang intelligence information, unknown to the inmate population.  It is also found that further redaction of portions of the reports, such as names of witnesses, would not eliminate the safety and security risks involved, because the gang members are able to determine, based upon the written description of events, which inmates provided information to prison officials, even if the names of such inmates are redacted. In addition, it is found, that in the prison system, having a copy of an incident report or “having papers” on someone who is viewed as a “snitch,” is considered to be a valuable commodity, which may then be used in a cycle of extortion and violence.
     15. Based upon the in camera inspection and the evidence produced at the hearing, it is concluded that, except for the disclosures described at paragraph 9, the Commissioner of Correction has reasonable grounds to believe that disclosure of IC 2013-541-001 through IC 2013-541-93 may result in a safety risk, within the meaning of §1-210(b)(18), G.S.
     16. It is therefore concluded that the respondents did not violate the FOIA when, except for the disclosures described at paragraph 9, above, they withheld the incident report and supporting records described at paragraph 11, above. 
     17. It is also concluded that there are no grounds for the imposition of civil penalties.
     18. The complainant stated that he had a habeus corpus proceeding pending in Superior Court. It is, of course, possible that his attorney in the habeus corpus proceeding may be able to review the records that are the subject of his complaint in the context of that matter.
     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 June 25, 2014.
__________________________
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:
Lindsey Edwards #258398
MacDougall-Walker Correctional Institution
1153 East Street South
Suffield, CT  06080
CTO Washington, FOI Liaison, State of Connecticut,
Department of Correction, MacDougall-Walker
Correctional Institution; Commissioner,
State of Connecticut, Department of Correction; and
State of Connecticut, Department of Correction
c/o James Neil, Esq.
State of Connecticut,
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT  06109

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-541/FD/cac/6/25/2014