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Final Decision FIC2012-108
In the Matter of a Complaint by
FINAL DECISION
Gary Cooke,
     Complainant
     against
Docket #FIC 2012-108
Wayne Carver, Chief, State of
Connecticut, Office of the Chief Medical
Examiner; and State of Connecticut,
ffice of the Chief Medical Examiner,
     Respondents
December 12, 2012

     The above-captioned matter was heard as a contested case on September 25, 2012, 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 January 29, 2012, the complainant requested a copy of x-ray films of two autopsy subjects, and the disciplinary and performance history in the personnel records of Dr. Malka Shah, redacted of personal information.
     3.  By letter of complaint filed February 20, 2012, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with a copy of the records he requested. 
     4.  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.
     5.  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.
     6.  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.”
     7.  It is concluded that the records requested by the complainant are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
     8.  With respect to the x-ray films, it is found that the respondents customarily make copies of the original films by electronically scanning the films into digital format.  It is found that the machine that the respondents used to make a copy of an x-ray film before they had the ability to scan the films into digital format has not been used in many years and may not work anymore.
     9.  It is found that the Department of Correction informed the respondents that the complainant would not be able to have a plastic x-ray film due to concerns about using the film as a weapon and burning the plastic to create noxious fumes.
     10.  It is found that the respondents offered to provide such digital “photographs” of the x-rays to the complainant at the cost set forth in §19a-401-12(g) of the Regulations of the Commission on Medicolegal Investigation.  It is found that the respondents previously provided such copies in 2008.
     11.  It is found that before the hearing in this matter, the complainant insisted on receiving copies of the x-ray films, not digital copies.  At the hearing in this matter, the respondents explained that the digital copies are scans of the films and are the customarily accepted standard for copies of x-rays.  It is found that the complainant hung up the phone and terminated his participation in the hearing before it could be determined whether he would accept copies in lieu of the plastic films.
     12.  It is found that the respondents did not deny the complainant’s request for copies of the x-rays; therefore, the respondents did not violate the FOI Act with respect to such portion of the complainant’s request for copies of records.
     13.  With respect to the complainant’s request for personnel records, described in paragraph 2, above, it is found that in 2011, the respondents transferred custody of their employees’ personnel records to the Department of Administrative Services (“DAS”) as required by an agency consolidation statute enacted by the legislature.
     14.  It is found that on May 29, 2012, DAS provided to the complainant all the records it maintained in the personnel file of Dr. Shah.  It is found that such records consist of performance evaluations from 1995-2000.  It is found that evaluations were not performed on Dr. Shah prior to that time and were not performed after 2000.  It is found that, were there any disciplinary history, it would be in the personnel file.  It is found, however, that Dr. Shah had no history of misconduct or discipline.
     15.  It is found that DAS provided to the complainant all the records it maintains on behalf of the respondents concerning the disciplinary and performance history of Dr. Shah.
     16.  It is concluded that the respondents did not violate 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 dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2012.
__________________________
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:
Gary Cooke #169077
MacDougall-Walker Correctional Institution
1153 East Street South
Suffield, CT  06080
Wayne Carver, Chief, State of Connecticut,
Office of the Chief Medical Examiner; and
State of Connecticut, Office of the Chief
Medical Examiner
c/o Patrick B. Kwanashie
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
55 Elm Street
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2012-108/FD/cac/12/12/2012