Final Decision FIC2015-008
In the Matter of a Complaint by
||Docket #FIC 2015-008|
Chief Public Defender, State of
Connecticut, Office of the Chief
Public Defender; and State of
Connecticut, Office of the Chief
December 16, 2015
The above-captioned matter was heard as a contested case on October 20, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts 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 Anthony Sinchak v. FOIC et al, Superior Court, Judicial District of Hartford, Docket No. CV 03-0826293, (corrected order dated January 27, 2004, Sheldon, J.).
Attorney Anthony Wallace, the subject of the requested records, moved for, and was granted, permission to join as an intervenor in this matter.
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 December 8, 2014, the complainant made a request to the respondents for the following records:
a. All reports, assessments, evaluations, recommendations and otherwise generated under section 8 of the Administrative Policy, subsection k, for Attorney Wallace, per subsections (1) and (11), and in particular under subsection (8) and (9);
b. Any other reports, assessments, evaluations, recommendations and otherwise generated pertaining to Anthony Wallace including but not limited to his appointment in, and handling of, habeas case Taylor v. Warden, CV112-4004709; and
c. Attorney Wallace’s application(s) and resume(s) for all contractual and/or non-contractual appointments as Assigned Counsel or Special Public Defender.
3. It is found that, by letter dated January 5, 2015, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for access to public records.
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. 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, (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.
6. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
7. It is found that the requested records, to the extent they exist, are public records within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.
8. It is found that the subject of the requested records, Attorney Anthony Wallace, was assigned as Special Public Defender to represent the complainant in his habeas corpus petition.
9. It is found that, after corresponding with the complainant by letters dated December 17, and December 30, 2014, and January 23 and February 11, 2015, the respondents provided the complainant with thirty-nine pages of records on February 25, 2015, which were records containing attorney-client privileged information pertaining to the complainant’s habeas corpus petition. It is found that those records were not responsive to the complainant’s request but were provided as a courtesy.
10. Based on the credible testimony of their witnesses, it is found that the respondents maintain no records responsive to the complainant’s requests, described in paragraphs 2(a) and 2(b), above.
11. It is found that the respondents denied the complainant’s request described in paragraph 2(c), above, contending, in part, that the records were exempt from disclosure pursuant to §18-101f, G.S.
12. Section 18-101f, G.S., provides as follows:
A personnel or medical file or similar file concerning a current or former employee of the Division of Public Defender Services … shall not be subject to disclosure under the Freedom of Information Act, as defined in section 1-200, to any individual committed to the custody or supervision of the Commissioner of Correction …
13. It is found that the complainant is an individual committed to the custody or supervision of the Commissioner of Correction.
14. At the hearing on this matter, the complainant contended that §18-101f, G.S., is not applicable because Attorney Wallace served as Special Public Defender pursuant to a contract with the respondents and is not an “employee” of the respondents within the meaning of that statute.
15. The respondents contended that Attorney Wallace is an “employee” within the meaning of §18-101f, G.S., and cited the definition of employee found in §4-141, G.S. which states that “ ‘state officers and employees’ includes . . . attorneys appointed by the Public Defender Services Commission as public defenders, assistant public defenders or deputy assistant public defenders and attorneys appointed by the court as Division of Public Defender Services assigned counsel . . . .”
16. It is found that §4-141, G.S., is the definitional section of Connecticut General Statutes Chapter 53, Claims Against the State, and is applicable only to the provisions found in that chapter.
17. Nonetheless, it is found that Special Public Defenders are “employees” of the respondents within the meaning §18-101f, G.S. See McDonough v. FOIC, Superior Court, Judicial District of New Britain, Docket No. HHBCV10-6006196 S, (October 4, 2011) (administrative appeal of Docket #FIC 2009-394 Thomas May v. Office of the Public Defenders appeal, regarding the disclosure of certain personnel records of a Special Public Defender, dismissed as moot upon enactment of P.A. 11-220 prohibiting disclosure of personnel records maintained by the Office of the Public Defender to persons in the custody of the Department of Correction).
18. It is concluded that the records described in paragraph 2(c), above, are personnel files or similar files under §18-101f, G.S.
19. It is concluded that the respondents did not violate the FOI Act by denying the complainant’s request for access to the records described in paragraph 2(c), above.
20. Therefore, it is concluded that the respondents did not violate the disclosure provisions of the FOI Act as alleged by the complainant.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 16, 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:
David Taylor #272912
Osborn Correctional Institution
P.O. Box 100
Somers, CT 06071
Chief Public Defender, State of Connecticut, Office
of the Chief Public Defender; and State of Connecticut,
Office of the Chief Public Defender
c/o Deborah Del Prete Sullivan, Esq.
30 Trinity Street
Hartford, CT 06106
c/o Steven R. Strom, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
Public Safety Department
110 Sherman Street
Hartford, CT 06105
For the Intervenor:
Timothy R. Scannell, Esq.
Boyle, Shaughnessy, & Campo, P.C.
280 Trumbull Street
Hartford, CT 06103
Cynthia A. Cannata
Acting Clerk of the Commission