| TO: | Freedom of Information Commission |
| FROM: | Thomas A. Hennick |
| RE: | Minutes of the Commission’s regular meeting of April 24, 2013 |
A regular meeting of the Freedom of Information Commission was held on April 24, 2013, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:06 p.m. with the following Commissioners present:
Commissioner Norma E. Riess, presiding
Commissioner Sherman D. London
Commissioner Owen P. Eagan
Commissioner Amy J. LiVolsi
Commissioner Jonathan J. Einhorn
Commissioner Matthew Streeter
Commissioner Christopher P. Hankins
Commissioner Sherman D. London
Commissioner Owen P. Eagan
Commissioner Amy J. LiVolsi
Commissioner Jonathan J. Einhorn
Commissioner Matthew Streeter
Commissioner Christopher P. Hankins
Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, Valicia D. Harmon, Paula S. Pearlman, Cindy Cannata and Thomas A. Hennick.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of April 10, 2013.
The Commissioners unanimously voted to adopt the corrected minutes of the Commission’s regular meeting of March 28, 2013.
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Troy Artis v. Michael Bibens, Director of Nutrition and Food Services, State of Connecticut, York Correctional Institution, Department of Correction; and State of Connecticut, York Correctional Institution, Department of Correction |
Troy Artis participated via speakerphone. Attorney James Neil appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
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Alexander Wood and the Manchester Journal Inquirer v. Chief Public Defender, State of Connecticut, Office of the Chief Public Defender, Division of Public Defender Services; and State of Connecticut, Office of Chief Public Defender, Division of Public Defender Services |
Alexander Wood appeared on behalf of the complainants. Attorney Steven Barry appeared on behalf of the respondents. Attorney Peter Bowman appeared on behalf of the intervenors, Attorney George Flores and Attoney David Smith. The Commissioners unanimously voted to correct the Hearing Officer’s Report. The Commissioners unanimously voted twice to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as corrected and amended.* The proceedings were recorded digitally.
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Sandra Cady v. Anne Noble, President, State of Connecticut, Connecticut Lottery Corporation; and State of Connecticut, Connecticut Lottery Corporation |
Sandra Cady appeared on her own behalf. Attorney Holly Cini appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
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Deborah Brennan v. Chief, Police Department, Town of West Hartford; and Police Department, Town of West Hartford |
Deborah Brennan apeared on her own behalf. Attorney Patrick Alair appeared on behalf of the respondents. The Commissioners voted, 4-3, against a proposed amendment that would have required payment for copies of the records in question by the complainant. Commissioners Eagan, Livolsi and Streeter voted in favor of the amendment. Commissioners Riess, London, Einhorn and Hankins voted against. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
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Andrew Matthews v. Ronnell Higgins, Chief, Police Department, Yale University; and Police Department, Yale University |
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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Robert Cushman v. Chief, Police Department, City of New London; and Police Department, City of New London |
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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Robert Cushman v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police |
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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Wayne Cooke v. Moderator, Representative Town Meeting, Town of Branford |
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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Charles Evans, Jr. and Roberta Clapper v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police |
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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Lamberto Lucarelli v. Ethics Commission, Town of Old Saybrook; and Town of Old Saybrook |
Lamberto Lucarelli appeared on his own behalf. Attorney Michael Cronin appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Colleen M. Murphy and Victor R. Perpetua reported on pending appeals.
Colleen M. Murphy reported that in attendance at the April 24 meeting were Professor Jamie Horsley, Executive Director of the China Law Center at the Yale Law School, and Professor Wang Jingbo, a visiting scholar from the China University of Political Science and Law in Beijing, who is in this country to study Freedom of Information and Open Government practices.
Colleen M. Murphy reported that the meeting would, in all likelihood, be the last for Commissioner London. She thanked him for his 17 years of service. Commissioners and staff saluted Commissioner London with a standing ovation.
Colleen M. Murphy reported on legislation.
The meeting was adjourned at 5:18 p.m.
________________
Thomas A. Hennick
Thomas A. Hennick
MINREGmeeting 04242013/tah/04252013
AMENDMENTS AND CORRECTIONS
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Alexander Wood and the Manchester Journal Inquirer v. Chief Public Defender, State of Connecticut, Office of the Chief Public Defender, Division of Public Defender Services; and State of Connecticut, Office of Chief Public Defender, Division of Public Defender Services |
The Hearing Officer’s Report is corrected and amended as follows:
10. On February 28, 2013, the respondents submitted the records described in paragraph 2, above, to the Commission for an in camera review (hereinafter the “in camera records”). The in camera records, which were submitted in three separate packages, can be described as follows:
a) 14 pages of records pertaining to Attorney Flores, which shall be identified in the report as IC-AttyA-2012-276-01 through IC-AttyA-2012-276-14;
b) 41 pages of records pertaining to Attorney Smith, which shall be identified in the report as IC-AttyB-2012-276-01 through [IC-AttyB-20012-41] IC-AttyB-2012-276-41; and
c) one three-page memorandum prepared by the respondents’ Director of Human Resources, which shall be identified in the report as IC-HR-2012-276-01 through IC-HR-2012-276-03.
56. Section [1-2a] 1-2z, G.S., entitled, Plain meaning rule, provides as follows:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered parties by the hearing officer. At such time, the complainant and all respondents appeared and presented testimony, exhibits and argument on the complaint.
96. At the contested case hearing both of the public defenders testified that it was their belief that the disclosure of any of the in camera records would constitute an invasion of their personal privacy. The public defenders testified that they reviewed IC-AttyA-2012-276-01 through IC-AttyA-2012-276-14, and IC-AttyB-2012-276-01 through [IC-AttyB-20012-41] IC-AttyB-2012-276-41, respectively, and that they believed the information contained in these records was personal and private information, which had no bearing on how they performed their jobs or how they handled the criminal cases assigned to them as public defenders. In effect, they testified that the events described in the in camera records did not affect their ability to practice law or defend their clients. They further testified that the records contained information concerning their health, well-being and certain family matters, which if disclosed could cause embarrassment to them and to their families. While they testified that they did not believe that the public had a legitimate interest in the records, they did concede that there were records within the in camera submissions which were responsive to the complainants’ request.
99. However, based on the finding in paragraph 83, above, AND THE FACTS AND CIRCUMSTANCES OF THIS CASE, it is found that the public has no legitimate interest in arrest records that HAVE been erased and, thus, no longer have any legal existence. It is further found that the disclosure of such erased records would be highly offensive to a reasonable person.
100. It is therefore concluded that the disclosure of IC-AttyB-2012-276-01 through [IC-AttyB-20012-41] IC-AttyB-2012-276-41 would constitute an invasion of personal privacy within the meaning of §1-210(b)(2), G.S. It is therefore concluded that these records are exempt from mandatory disclosure by virtue of §1-210(b)(2), G.S. It further concluded that the agency respondents did not violate the FOI Act by withholding such records from the complainants.
101. IT IS FURTHER FOUND THAT THE FOLLOWING PORTIONS OF THAT IC-HR-2012-276-01 THROUGH IC-HR-2012-276-03 DISCUSS OR IDENTIFY AN EMPLOYEE IN THE CONTEXT OF A CRIMINAL ARREST WHICH HAS BEEN ERASED, THAT, BASED ON THE FACTS AND CIRCUMSTANCES OF THIS CASE, THE PUBLIC HAS NO LEGITIMATE INTEREST IN SUCH INFORMATION AND THAT DISCLOSURE OF SUCH INFORMATION WOULD BE HIGHLY OFFENSIVE TO A REASONABLE PERSON:
a. IC-HR-2012-276-01: LINE 1, WORDS 1 AND 2; LINE 2, WORD 2; LINE 3, WORD 1; LINE 4, WORD 1; LINE 5, WORDS 2 AND 3; LINE 6, WORD 2; LINE 7, WORD 5; LINE 9, WORD 3.
b. IC-HR-2012-276-02: LINE 8, WORD 1.
c. IC-2012-276-276-03: LINE 3, WORD 5; LINE 6, WORD 12; LINE 8, WORDS 1 AND 15; LINE 10, WORD 1; LINE 11, WORD 3; LINE 12, WORD 3; LINE 13, WORD 1; LINE 15, WORD 2; LINE 16, WORD 7; LINE 19, WORD 1.
102. It is therefore concluded that the disclosure of the portions of IC-HR-2012-276-01 through IC-HR-2012-276-03 [which discuss or identify an employee in the context of an erased criminal arrest] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, ABOVE, would constitute an invasion of person privacy within the meaning of §1-210(b)(2), G.S. It is therefore concluded that such portions of IC-HR-2012-276-01 through IC-HR-2012-276-03 are exempt from mandatory disclosure by virtue of §1-210(b)(2), G.S. It further concluded that the agency respondents did not violate the FOI Act by withholding such portions of the records from the complainants.
103. However, it is found that other than the portions [described in paragraph 102,
above,] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, above, the remainder of the records comprising IC-HR-2012-276-01 through IC-HR-2012-276-03 contain information which formed the basis for a personnel decision. It is further found that these records are necessary to and facilitate the public’s understanding and evaluation of the agency respondents investigative process, decision-making and overall handling of an important matter involving a fellow public defender.
above,] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, above, the remainder of the records comprising IC-HR-2012-276-01 through IC-HR-2012-276-03 contain information which formed the basis for a personnel decision. It is further found that these records are necessary to and facilitate the public’s understanding and evaluation of the agency respondents investigative process, decision-making and overall handling of an important matter involving a fellow public defender.
104. It is therefore found that, other than those portions [described in paragraph 102, above,] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, ABOVE, the records described in paragraph 10.c, above, pertain to legitimate matters of public concern. It is further found that, upon redaction of the portions of the records [described in paragraph 102, above,] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, above, disclosure of the remaining portions of the records would not be highly offensive to a reasonable person.
106. It is concluded, therefore, that with the exception the in camera records specifically identified in paragraph 100, above, and those portions of the in camera records [described in paragraph 102, above] SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, above, disclosure of the remaining records would not constitute an invasion of privacy within the meaning of §1-210(b)(2), G.S. It is further concluded that that the agency respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by denying the complainants’ request for access to such records.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The agency respondents shall forthwith provide the complainants with a copy of the records described in paragraphs 10.a and 10.c., of the findings, above, free of charge. In complying with this order, the agency respondents may redact from the records described in paragraph 10.c, of the findings, above, THE INFORMATION SPECIFICALLY IDENTIFIED IN PARAGRAPH 101, OF THE FINDINGS, ABOVE.
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Sandra Cady v. Anne Noble, President, State of Connecticut, Connecticut Lottery Corporation; and State of Connecticut, Connecticut Lottery Corporation |
The order in the Hearing Officer’s Report is amended as follows:
2. ALTHOUGH THE COMMISSION DID NOT FIND A VIOLATION WITH REGARD TO THE RECORDS DESCRIBED IN PARAGRAPHS 6(A) AND 6(B), ABOVE, FOR THE REASONS SET FORTH IN PARAGRAPHS 19 AND 20, ABOVE, THE COMMISSION ANTICIPATES THAT THE RESPONDENTS WILL CONTINUE TO DILIGENTLY WORK TOWARD FULFILLING THE REQUEST FOR SUCH RECORDS, AND WILL PROVIDE THE COMPLAINANTS WITH A WEEKLY WRITTEN PROGRESS REPORT AND RESPONSIVE RECORDS AS THEY BECOME AVAILABLE.
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Deborah Brennan v. Chief, Police Department, Town of West Hartford; and Police Department, Town of West Hartford |
The order in the Hearing Officer’s Report is amended as follows:
2. In providing the copy, described in paragraph 1 of the Order, above, the respondents shall redact all information pertaining to records deemed erased by operation of law[.]
, AS WELL AS NOLLES AND JUVENILE RECORDS.