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Final Decision FIC2013-018
In the Matter of a Complaint by
FINAL DECISION
Melvin Sherman,
     Complainant
     against
Docket #FIC 2013-018
Commissioner, State of Connecticut,
Department of Correction; and State of
Connecticut, Department of Correction,
     Respondents
November 13, 2013

     The above-captioned matter was heard as a contested case on September 20, 2013, 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 1, 2013, the complainant requested records pertaining to a disciplinary report about him issued on December 13, 2012, and records pertaining to an incident occurring on February 19, 2011. 
     3.  It is found that the respondents replied to the complainant’s request on January 2, 2013. 
     4.  By letter of complaint filed January 11, 2013, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide him with the copies of records he requested.
     5.  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.
     6.  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.
     7.  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.”
     8.  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.
     9.  It is found that the respondents provided the complainant with 33 pages of records on January 15, 2013, for which the complainant paid the statutory fee, but the complainant claims that such records are not responsive to his request, described in paragraph 2, above.  In particular, the complainant sought a color photograph of his injuries sustained in the 2011 incident, unredacted statements of witnesses from both the 2011 and the 2012 incidents, and video footage, phone conversations, and an anonymous note used to support the disciplinary report against him issued on December 13, 2012.
     10. It is found that the respondents provided the complainant with a black and white copy of the photograph that the complainant testified was dark and obscured his injuries.  The respondents have agreed to try to create a lighter copy and if the difference is noticeable, to provide such copy to the complainant.
     11. The respondents claim that §1-210(b)(18), G.S., exempts the balance of the requested records from mandatory disclosure.
     12. Section 1-210(b)(18), G.S., provides:
Nothing 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. The respondents’ witness testified that disclosure to inmates of the witness statements, including information in recorded phone conversations and the anonymous note may create a safety risk because it could lead to retaliation against witnesses for what was or was not said in the statements, phone conversations, or note.
     14. It is found that the Commissioner of Correction has reasonable grounds to believe that disclosure of the records requested by the complainant may result in a safety risk, within the meaning of §1-210(b)(18), G.S.  See Docket #FIC2010-670; Robin Elliott v. Deputy Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction (September 14, 2011).
     15. It is concluded, therefore, that such records are exempt from disclosure, and the respondents did not violate the FOI Act by not providing such records to 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 November 13, 2013.

__________________________
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:
Melvin Sherman #118755
MacDougall-Walker Correctional Institution
1153 East Street South
Suffield, CT  06080
Commissioner, State of Connecticut, Department of Correction;
and State of Connecticut, Department of Correction
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/2013-018/FD/cac/11/13/2013