On November 22, 2011, the respondents moved to dismiss the complaint without a hearing pursuant to §1-206(b)(4), G.S.  On November 28, 2011, the first hearing officer granted the respondents’ motion.  On November 28, 2011, the complainant filed a “Motion for Continuance,” which the hearing officer treated as a motion for reconsideration of his ruling on the respondents’ motion to dismiss.  On December 1, 2011, the hearing officer granted the complainant’s motion for reconsideration. 

On January 4, 2012, Attorney Lisa F. Siegel was designated hearing officer in lieu of Attorney Clifton A. Leonhardt.

1. Section 1-206(b)(4), G.S., provides that:

“[n]otwithstanding any provision of this subsection to the contrary, in the case of an appeal to the commission of a denial by a public agency, the commission may, upon motion of such agency, confirm the action of the agency and dismiss the appeal without a hearing if it finds, after examining the notice of appeal and construing all allegations most favorably to the appellant, that the agency has not violated the Freedom of Information Act.”

2.  The notice of appeal in this matter alleges that the respondents violated the Freedom of Information Act by denying the complainant’s request for:

     a) “all complaints filed by Public Defender Services clients against there [sic] Public Defender Services attorneys for the last 10 years”; and

     b) “a detailed accounting of payments to Special Public Defenders, for habeas cases, from Public Defender Services, for the last 5 years.” 

3.  With respect to the complainant’s request, described in paragraph 2.a, above, §1-210(a), G.S., provides in relevant part:

     “[e]xcept 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 inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212….”

 [Emphasis added.]

4.  Section 18-101f, G.S., as amended by Public Act 11-220, §2, provides in relevant part:

     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 … to any individual committed to the custody or supervision of the Commissioner of Correction[.]

5.  It is found, based on the complainant’s notice of appeal to this Commission filed on March 24, 2011, that the complainant is “a Connecticut prisoner housed in Maine under the Interstate Compact.”

6.  In Thomas May v. Office of the Public Defenders, Docket #FIC 2009- 394, the Commission found that a complaint filed by a client against his or her Special Public Defender is a personnel file or similar file.  See also McDonough v. FOIC, HHBCV10-6006196 S, Superior Court, Judicial District of New Britain at New Britain, October 4, 2011 (administrative appeal of Docket #FIC 2009-394 dismissed as moot upon enactment of P.A. 11-220 prohibiting disclosure of certain personnel records to persons in the custody of the Department of Correction).

7.  It is concluded that the records described in paragraph 2.a, above, are personnel files or similar files covered by §18-101f, G.S.

8.  It is concluded, after examining the notice of appeal and construing all allegations most favorably to the complainant, that the respondents did not violate the FOI Act by refusing to provide the complainant with records responsive to his request described in paragraph 2.a, above. 

9.  The action of the respondents is confirmed, therefore, with respect to the complainant’s request described in paragraph 2.a, above. With respect to such records, the complaint is hereby dismissed without a hearing pursuant to §1-206(b)(4), G.S.  

10.  With respect to the complainant’s request, described in paragraph 2.b, above, for an accounting of payments to Special Public Defenders, the respondents claim that the Commission lacks subject matter jurisdiction because the requested records pertain to the respondents’ adjudicatory functions, and the Commission has jurisdiction only over the respondents’ administrative functions.  In addition, the respondents claim that the records are protected by privilege.

10.  It is concluded, however, that to determine the validity of the respondents’ claims requires findings of facts not alleged in the complaint. 

11.  However, §1-206(b)(1), G.S., provides in relevant part that the “[C]ommission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal.

12.  The notice of appeal in this matter was filed on March 24, 2011; therefore, the Commission must decide the appeal by March 23, 2012.  The hearing in this matter, last scheduled for March 7, 2012, first had been held in abeyance pending the resolution of McDonough v. FOIC, HHBCV10-6006196 S, Superior Court, Judicial District of New Britain at New Britain, October 4, 2011 (see paragraph 6, above), and subsequently was rescheduled several times. Because the evidentiary hearing must be held, if at all, after the Commission rules on the respondents’ motion to dismiss, and the Commission’s next meeting is on March 14, 2012, any evidentiary hearing must occur after March 14, 2012 but well before March 24, 2012. 

13. The Commission lacks the necessary time to hold an evidentiary hearing in this case and to consider the relevant issues of law, many of which are matters of first impression, in time to avoid a lapse of jurisdiction pursuant to §1-206(b)(1), G.S., yet accord due notice to the parties of the Commission’s consideration of the hearing officer’s proposed final decision. 

14.  Consequently, the Commission hereby cancels the evidentiary hearing in this matter now scheduled for March 7, 2012, and declines to set another date for such hearing.

15.  The complainant, of course, is free to request again the records described in paragraph 2.b, above.  Mindful of any inconvenience to the complainant as a result of the many delays in the resolution of this matter, the Commission shall consider on an expedited basis the denial of any renewed request by the complainant for such records.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  With respect to the records described in paragraph 2(a), of the findings of fact, the complaint is dismissed with prejudice.

2. With respect to the records described in paragraph 2(b), of the findings of fact, the complaint is dismissed without prejudice.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 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:

Thomas May #96118
Maine State Prison
807 Cushing Road
Warren, ME  04864

State of Connecticut, Office of the Chief Public Defender,
Division of Public Defender Services; and
State of Connecticut, Office of the Chief Public Defender
c/o Michael A. Fitzpatrick, Esq.
10 Middle Street
7th Floor
Bridgeport, CT  06604

and

Deborah DelPrete Sullivan, Esq.
Office of the Chief Public Defender,
Division of Public Defender Services
30 Trinity Street
4th Floor
Hartford, CT  06106

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission