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Final Decision FIC2014-140
In the Matter of a Complaint by
FINAL DECISION
Jose Ayuso,
     Complainant
     against
Docket #FIC 2014-140
Commissioner, State of Connecticut,
Department of Emergency Services and
Public Protection, Division of Scientific
Services; and State of Connecticut,
Department of Emergency Services and
Public Protection, Division of Scientific
Services,
     Respondents
February 4, 2015

     The above-captioned matter was heard as a contested case on November 26, 2014, 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 on February 17, 2014, the complainant requested from the respondents copies of:
     Items inventoried in evidence in the case of Jose A. Ayuso. Dated incident June 5, 2003 case #03-25694, Laboratory case # is ID-03-001424. Any and all information on tested item #E-55 Glock semi-auto pistol #23. (1) Results of any and all examinations done to E-55. (2) Also submitted was a magazine for E-55 pistol, requesting any and all documentation of the results of the examination of magazine. (3) Any and all information on what is the round capacity for that specific magazine of E-55. (4) Also documentation of all information dealing with specifications of E-55 magazine. (5) Any and all information submitted to the NIBIN system on case #1001875 and also what was submitted to the IBIS system regarding the test fire results and specimens.
     3.  It is found that the respondents received the complainant’s request on March 3, 2014.
     4.  It is found that the respondents received lab report ID-03-001424 from the Division of Scientific Services on March 7, 2014.
     5. It is found that the respondents communicated with the Department of Correction (“DOC”) regarding the records they contemplated delivering to the complainant, as required by §1-210(c), G.S., which provides:
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.
     6.  It is found that the respondents received approval from DOC to release the records to Mr. Ayuso on March 18, 2014, and that the records were mailed to him on that date.
     7.  It is found that the respondents also located a copy of a firearms worksheet associated with lab report ID-03-001424 and an evidence inventory; received approval from DOC on April 2, 2014 to provide the additional records to the complainant; and mailed the additional records to him on that day.
     8.  By letter of complaint filed March 11, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the records he requested.
     9.  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.
     10. 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 the provisions of section 1-212.
     11. Section 1-212(a), G.S., provides in relevant part:  “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
     12. It is concluded that the records provided to the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     13. It is found that the records provided to the complainant are all of the records in the custody of the respondents that are responsive to the complainant’s request.
     14. The complainant maintains that the records do not answer all of his questions, including his question as to how the magazine capacity of the pistol was determined.
     15. It is found, however, that the FOI Act does not require the respondents to answer the complainant’s questions about how they conducted the tests that are reported in the records he received in response to his request in this case.
     16. The complainant requested at the hearing that the Commission order the respondents to provide an affidavit attesting to the fact that the respondents have no records responsive to paragraph 5 of his request, namely “Any and all information submitted to the NIBIN system on case #1001875 and also what was submitted to the IBIS system regarding the test fire results and specimens.” The complainant presented no testimony or evidence concerning what the NIBIN or IBIS systems are, but the Commission takes administrative notice of the fact that the National Integrated Ballistic Information Network (“NIBIN”) is a specialized computer network administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) that contains digital images of recovered pieces of ballistic evidence, and provides federal, state and local law enforcement forensic science agencies with an automated ballistic imaging system to aid their investigations by using digital images of shell casings to link violent crimes involving firearms and subsequently identify firearm users. The Commission also takes administrative notice of the fact that the Integrated Ballistics Identification System (“IBIS”) is the identification system used by NIBIN.
     17. The Commission declines to issue such an order. However, in an effort to address the complainant’s concern, it is specifically found that the respondents have no records responsive to paragraph 5 of the complainant’s request.
     18. It is concluded that the respondents did not violate the FOI Act as alleged.

     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 special meeting of February 4, 2015.
__________________________
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:
Jose Ayuso #156239
MacDougall-Walker Correctional Institution
1153 East Street, South
Suffield, CT  06080
Commissioner, State of Connecticut, Department of Emergency
Services and Public Protection, Division of Scientific Services;
and State of Connecticut, Department of Emergency Services
and Public Protection, Division of Scientific Services
c/o Terrence M. O’Neill, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
110 Sherman Street
Hartford, CT  06405
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-140FD/cac/2/4/2015