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Final Decision FIC2015-003
In the Matter of a Complaint by
FINAL DECISION
Russell Mace
     Complainant
     against
Docket #FIC 2015-003
Commissioner, State of Connecticut,
Department of Children and Families; and
State of Connecticut, Department of
Children and Families,
     Respondents
October 14, 2015

     By letter dated February 20, 2015, the Commission advised the complainant that, unless he responded in writing, it would not take further action on his complaint because records of the respondent Department concerning child protection activities are not subject to disclosure pursuant to the Freedom of Information Act (“FOIA”).  By letter dated May 12, 2015, the complainant stated that he needed a written decision from the Commission.
     Accordingly, the above-captioned matter was heard as contested case on September 3, 2015, at which time the complainant appeared and presented testimony, an exhibit and argument on the complaint.  The respondents failed to appear.
     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)(A), G.S.
     2.  It is found that, by letter dated December 9, 2014, the complainant made a detailed request to the respondent Department for nine categories of records, all of which concerned different aspects of the respondent Department’s case with Link Number 240160 (the “requested records”).
     3.  It is found that, by letter dated and filed with the Commission on January 6, 2015, the complainant appealed to the Commission, alleging that the failure of the respondents to provide the requested records violated the FOIA.
     4.  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 section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
     5.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:
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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. (emphasis added) 
Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record. 
     6.  It is concluded that the requested records are “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.
     7.  At the hearing, all nine categories of the requested records were individually reviewed and the complainant gave testimony as to each of the nine categories. Based on this review, it is found that all of the requested records pertain to child protection activities of the respondent Department and that the case Link Number referenced in paragraph 2, above, is a case that pertains to the complainant’s two children.  It is further found that the complainant is listed on the registry of the respondent Department.   
     8.  Section 17a-101k, G.S., provides, in relevant part, that the “information contained in the [DCF] registry and any other information relative to child abuse, wherever located, shall be confidential, subject to such statutes and regulations governing their use and access as shall conform to the requirements of the federal law or regulations.”
     9.  Section 17a-28(b), G.S., provides, in relevant part, that “[n]otwithstanding the provisions of [the FOI Act], records maintained by [DCF] shall be confidential and shall not be disclosed.  Such records of any person may only be disclosed, in whole or in part, to any individual…with the consent of the person or as provided in this section.”   
     10. “Person” is defined in §17a-28(a)(1), G.S., as “(A) any individual named in a record, maintained by [DCF], who (i) is presently or at any prior time was a ward of or committed to the commissioner for any reason; (ii) otherwise received services, voluntarily or involuntarily, from [DCF]; (iii) is presently or was at any prior time the subject of an investigation by [DCF]; (B) the parent of a person, as defined in subparagraph (A) of this subdivision, if such person is a minor; or (C) the authorized representative of a person; as defined in subparagraph (A) of this subdivision, if such person is deceased[.]”
     11. Section 17a-28(m), G.S. provides, in relevant part:
“[i]n addition to the right of access provided in section 1-210, any person…shall have the right of access to any records made, maintained or kept on file by [DCF]…when those records pertain to or contain information or materials concerning the person seeking access thereto….”
     12. Previous commission and court decisions have addressed precisely the same issue presented by this case: whether, based on the language in §17a-28(m), G.S., the confidentiality provision contained in §17a-28(b), G.S., applies to parents, because the records they seek “concern” or “pertain” to them.  Parents have argued that the confidentiality provision applies only to “third parties.”
     13. Connecticut courts have held otherwise.  In Marlowe v. State of Connecticut, Freedom of Information Commission, Superior Court, J.D. New Britain, Docket No. CV 99 0493141 (October 12, 1999, McWeeny, J.) (“Marlowe”), the court ruled that the FOI Commission lacks jurisdiction to determine the rights of access to DCF records pertaining to child protection activities.  See also Groton Police Dept. v. Freedom of Information Commission, 104 Conn. App. 150, 165-166 (2007).  The court also noted, that not all DCF records are exempt from FOIA, citing Department of Children and Families v. Freedom of Information Commission, 48 Conn. App. 467 (1998).  “Clearly, DCF records which do not pertain to child protection activities are subject to disclosure under FOIA.  It is in this substantive context in which §17a-28(m) should be construed.”  Marlowe, supra, at 6.
     14. In Kimberly Albright-Lazzari v. Freedom of Information Commission, 136 Conn. App. 76 (2012), the Appellate Court reviewed and affirmed the holding in Marlowe.  The confidentiality provision contained in §17a-28(b), G.S., does provide otherwise than, and is therefore an exception to, the basic disclosure provision of §1-210(a), G.S.  
     15. It is concluded that the respondents have not violated §§1-210(a) and 1-212(a), G.S., by failing to provide the complainant with the requested records because the requested records pertain to the child protection activities of the respondent Department.
     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 October 14, 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:
Russell Mace #183972
Osborn Correctional Institution
P.O. Box 100
Somers, CT  06071
Commissioner, State of Connecticut, Department of Children and Families;
and State of Connecticut, Department of Children and Families
505 Hudson Street
Hartford, CT  06106
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-003/FD/cac/10/14/2015