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PLN comments on CT public records legislation March 2010

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Dedicated to Protecting Human Rights

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Direct Dial: (802) 257-1342
P.O. Box 2420
West Brattleboro, VT 05303

March 6, 2010

Rep. Gayle S. Slossberg, Co-Chair
Rep. James F. Spallone, Co-Chair
Government Administration and Elections Committee
Room 2200, Legislative Office Building
Hartford, CT 06106

RE: Hearing on HB 5404
Dear Rep. Slossberg and Spallone:
As Editor and Associate Editor of Prison Legal News (PLN), a non-profit monthly publication
that reports on corrections and criminal justice-related issues, we are contacting you to comment
on HB 5404, which is the subject of a March 8 hearing before the Government Administration
and Elections Committee.
PLN has extensive experience in regard to public records requests involving prison operations.
We have utilized public records requests to obtain information about corrections-related issues
nationwide during the past 19 years that PLN has been publishing, and based on our knowledge
and experience we object to HB 5404 for the following reasons.
HB 5404 would restrict prisoners from obtaining through Freedom of Information Act (FOIA)
requests specified records related to Department of Correction employees, including personnel
or medical files, or records relating to departmental security and discrimination investigations,
absent a court order.
We would initially note that there are already existing provisions in Connecticut’s FOIA law to
prohibit the release of employees’ personnel and medical files and records that may jeopardize
institutional security. For example, § 1-214(b) includes safeguards for requests for employee
personnel or medical files that an agency reasonably believes would constitute an invasion of
privacy. Those safeguards include notifying the employee who is the subject of the request and
his or her union representative, and prohibiting disclosure of the records if the employee or the
union representative objects to the disclosure, unless the agency is ordered by the Connecticut
FOIA Commission to produce the requested documents.

Rep. Gayle S. Slossberg, Co-Chair
Rep. James F. Spallone, Co-Chair
March 6, 2010
Page 2

Also, the residential addresses of Department of Correction employees are exempt from FOIA
requests under § 1-217(3), as are records that 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 § 1-210(b)(18).
Furthermore, prisoners’ FOIA requests must be reviewed by the Commissioner of Correction
before any records are produced, pursuant to § 1-210(c). Therefore, HB 5404 is redundant and
unnecessary, as Connecticut’s FOIA statute currently includes exemptions and safeguards that
largely restrict the records that HB 5404 seeks to make unavailable to prisoners.
Further, prison officials retain the ability to censor records produced through FOIA requests
when they are mailed into correctional facilities. In Livingston v. Cedeno, 186 P.3d 1055 (Wash.
2008), Washington State’s Supreme Court held that prison officials may censor public records
released under the state FOIA law based on security concerns, independent of FOIA restrictions
or exemptions. It is likely that Connecticut courts would reach the same conclusion.
We understand that the purported reason for HB 5404 is that a Connecticut prisoner requested
arrest records for Connecticut prison employees. We would note that this type of information
is regularly requested by newspapers, and articles on that topic by media in Florida and South
Carolina revealed that 15% of prison employees in those states had criminal convictions. The
Dept. of Correction is a law enforcement agency and its employees should be held to the highest
standards. This begs the question of how many Connecticut prison employees have arrest and
conviction records. Do you know? We think this is a question of legitimate public concern and
we understand the Hartford Advocate has requested this information from corrections officials
and it has yet to be provided. State agencies and employees who have nothing to hide and who
meet the highest standards of professionalism, honesty and integrity should not fear public
scrutiny; they should welcome it, whether it comes from within prison walls or without.
Additionally, a Democratic government should be more concerned with making public records
more accessible to members of the public, thus increasing transparency, rather than restricting
access to information about government employees and operations. This applies to prisoners as
well as to non-incarcerated citizens, as prisoners do not lose their citizenship status when they
are imprisoned. Limiting access to public records for prisoners – who have no political voice or
constituency and thus cannot easily oppose such legislation – is the start of a slippery slope that
threatens to restrict access to public records for non-incarcerated citizens.
For example, the most obvious way that prisoners could circumvent the restrictions proposed by
HB 5404 would be to have their family members or friends request Department of Correction
personnel files or security investigation records on their behalf. Will the Legislature then attempt
to prohibit non-incarcerated citizens from obtaining such records, in case they are provided to
prisoners? How will it be determined if citizens are requesting such records for themselves or
for a prisoner? If the Legislature does not plan to restrict public access to Dept. of Correction
records for non-incarcerated citizens, then HB 5404 serves no useful purpose as its proposed
limitations could be easily circumvented.

Rep. Gayle S. Slossberg, Co-Chair
Rep. James F. Spallone, Co-Chair
March 6, 2010
Page 3

Lastly, it should be noted that prisoners have legitimate reasons to request records from the Dept.
of Correction – including security and discrimination investigation reports. For instance, in the
case of a prisoner who is physically or sexually assaulted by a prison employee, and such abuse
is verified through an internal investigation, under HB 5404 the prisoner would not be able to
obtain a copy of the investigative report that substantiates such abuse. Similarly, if a prisoner
files a discrimination complaint against a prison employee due to racial, religious and/or gender
discrimination, under HB 5404 the prisoner could not obtain a copy of the investigative report
into his or her own discrimination complaint.
The Legislature should not ignore the fact that physical and sexual abuse of prisoners occurs in
the state’s prison system. For example, on May 25, 2009, state prison officer Megan Schnitzler
was arrested and charged with sexually assaulting prisoners at the Osborn Correctional Center.
Also, in August 2007, the Dept. of Correction paid $500,000 to settle a federal lawsuit filed by
state prisoner Robert Joslyn, who alleged he was brutally assaulted by ten prison officers. The
assault was recorded on surveillance video. A Department of Correction investigative report
concluded that the officers had used “excessive force” and “failed to follow proper procedures
and protocols,” and that the use of force on Joslyn “was planned.” The report also found that one
officer, who had been previously disciplined for assaulting a prisoner, was “less than truthful” in
the investigation. However, had HB 5404 been in effect at the time, Joslyn would not have been
able to obtain – through a FOIA request – a copy of the Dept. of Correction investigative report
concerning the assault that he suffered at the hands of prison employees.
Based on the foregoing, we object to HB 5404 and ask the Committee members to vote against
this legislation because it is redundant and unnecessary based on existing FOIA provisions; it
unjustly restricts prisoners’ access to otherwise public records; it serves no useful purpose as it
is easily circumvented; and it prohibits prisoners from making legitimate requests for records
related to investigative reports involving abuse and discrimination by prison staff.
Ordinarily we would be happy to testify in person before the Committee and respond to any
questions from Committee members, but we are in the process of moving our office and unable
to attend any legislative hearings in Connecticut over the next two to three weeks. Please accept
our apologies and this written statement in lieu of our in-person testimony.


Paul Wright
Editor, PLN
cc: Connecticut FOIA Commission

Alex Friedmann
Associate Editor, PLN