Opinion
No. CV 06 4012025S
July 3, 2007
MEMORANDUM OF DECISION
I. INTRODUCTION
The captioned matter is an appeal by the Department of Correction (department) from a decision (decision) by the Freedom of Information Commission (commission).
The decision ordered the department to release to Richard Quint (Quint), an inmate of the department, documents relating to the assignment of inmates at correctional institutions. The department has appealed, claiming that those documents are exempt from disclosure pursuant to General Statutes § 1-210(b)(18)(G) (all further section references are to the General Statutes) which provides, in elliptical form:
(b) Nothing in the Freedom of Information Act shall be construed to require disclosure of . . .
(18) 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 or . . . Such records shall include, but are not limited to . . .
(G) Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities . . .
Quint originally requested several documents from the department, but the appeal concerns just one document, which is titled "Special Precautions for Inmates at Northern CI" (special precautions). The department provided to Quint a redacted copy of the special precautions (redacted copy). Return of Record (ROR), Exh. F. Quint then petitioned the commission to order the department to provide to him an unredacted copy of the special precautions (unredacted copy).
The commission designated a hearing officer (hearing officer) in this matter and, at the hearing on it, the hearing officer reviewed the unredacted copy, in camera. Thereafter, the hearing officer submitted to the commission a proposed decision ordering disclosure of the unredacted copy. The record does not contain any indication whether the commission conducted its own in camera review of the unredacted copy before adopting, with changes not material to the appeal, the hearing officer's proposed decision.
The undersigned has conducted an in camera review of the unredacted copy.
The special precautions is contained in a document headed "University of Connecticut Health Center Correctional Managed Health Care Policy and Procedures for Use Within the Connecticut Department of Correction," and, as noted above, it appears in the portion of that document which is titled "Special Precautions for Inmates at Northern CI." (Judicial notice is taken that Northern CI refers to Northern Correctional Institution, which is the department's facility with the highest level of security.) The special precautions states the department's policy regarding care of inmates who have serious mental illnesses, who are suicidal or who present a high risk of self-injury. The department argues that the redacted material (redactions) could, if disclosed, encourage inmates to feign injury, or to inflict a minor self-injury, with the intent of manipulating the department's judgment on their housing.
II. DISCUSSION Applicability of Statutory Exemption
After reviewing the unredacted copy in camera, it is held that that document contains "information on the movement or assignment of inmates or staff at" a correctional institution or facility, within the meaning of § 1-210(b)(18)(G).
The sole remaining issue in this appeal is whether the Commissioner of Correction (commissioner) had "reasonable grounds to believe" that the disclosure of the redactions "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," within the meaning of § 1-210(b)(18).
Pursuant to § 1-210(b)(18), it is the commissioner, and not a lay person, who must have "reasonable grounds to believe . . ." in order to support an exemption from disclosure. Of note in this regard are the mandates of § 4-8 that "[e]ach department head shall be qualified by training and experience for the duties of his office" and of § 18-80 that the Commissioner of Correction "shall be an experienced correctional administrator." Also relevant is the Appellate Court's directive that "we should accord heightened deference to prison officials' policies designed to address the urgent problems involved in administering a modern day prison." State v. Martin, 77 Conn.App. 778, 803, 825 A.2d 835, cert. denied, 266 Conn. 906, 832 A.2d 73 (2003) (citation omitted). Because our statutes and case law expressly recognize that the administration of prisons requires expertise not possessed by lay people, second-guessing prison administrators on matters concerning prison security can be undertaken only with great care and delicacy.
Paragraph 27 of the decision contains the finding at issue in this appeal. It states, in relevant part, "It is found, however, that the respondents do not have reasonable grounds to believe that an inmate would, as a result of the disclosure of the redacted information, inflict harm on himself." ROR, 251. Implicit in that finding is the presumption that the commissioner can invoke the § 1-210(b)(18) exemption only if the commissioner has reasonable grounds to believe harm "would" (will) result from disclosure. However, § 1-210(b)(18) does not require that the commissioner have reasonable grounds to believe that harm "would" result, but only that harm "may" result, in order to deny disclosure. While the legislature could have substituted "will result" for "may result" in § 1-210(b)(18), it elected otherwise.
It is held that the department was not required to establish reasonable grounds that mischief "would" result from disclosure in order to claim the exemption. Rather, the department's burden was merely to establish that an expert in the field, in this case the commissioner, had reasonable grounds to believe that mischief "may" result from disclosure.
Testimony of Dr. Chaplin
The only evidence presented to the hearing officer on the question whether harm may result from disclosure was the testimony of Dr. Paul Chaplin, the supervising psychologist at Northern CI. Dr. Chaplin testified that disclosure of the redactions could "potentially cause a safety and security issue at the Northern prison because they could lead to inmate behavior, self-destructive inmate behavior." (ROR, 131-32.) Dr. Chaplin continued: "My concern was that the — those actions [disclosure of the redactions] would motivate inmates to harm themselves, would lead to more suicide threats, suicide gestures, and that would be — that would be a very difficult problem for us." (ROR, 132.)
In rejecting the opinion of Dr. Chaplin, the decision states: "While the [c]ommission acknowledges that the respondents [department] may reasonably believe that some inmates already inflict harm on themselves in order to be transferred or for other reasons, no grounds other than speculation were offered to show that such behavior would increase as a result of disclosure of the redacted information." (ROR 251, ¶ 27.)
The statutory phrases "reasonable grounds to believe" and "may result" establish a standard which has an inherently subjective component. That is, whether reasonable grounds exist to believe that something may happen cannot be scientifically established. That test can only be established only by opinion evidence.
An opinion, not representing certainty, necessarily has an element of speculation. Accordingly, requiring evidence which is devoid of speculation in order to establish a subjective matter requires a type of evidence which cannot exist.
As recognized in our case law, uncontradicted expert opinion on a complex issue is to be given significant deference. In Tanner v. Conservation Commission, 15 Conn.App. 336, 341, 544 A.2d 258 (1988), the court observed: "While we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge."
In Camera Review
From the text of the unredacted copy, which, as noted above, was reviewed in camera by the undersigned, it is held that the commissioner had "reasonable grounds to believe" that disclosure of the unredacted copy "may result in a safety risk, including the risk of harm to any person . . ." Section 1-210(b)(18)(G).
Prejudice
It is held that the commissioner is prejudiced by the decision.
III. CONCLUSION
Because the commission improperly construed the exemption contained in § 1-210(b)(18)(G), and because the unredacted copy comes within the terms of that exemption, the appeal is sustained, and the decision is reversed.