Docket #FIC 2015-095

William Regan and Susan Regan v. Town Manager, Town of Granby; Human Services Director, Town of Granby; and Town of Granby

     William and Susan Regan appeared on their own behalf. Attorney Kevin Deneen appeared on behalf of the respondents. The matter was tabled. The proceedings were recorded digitally.

Docket #FIC 2015-170

Michael Aronow v. Freedom of Information Officer, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center

     The Commissioners unanimously voted to approve the Hearing Officer’s Report.

Docket #FIC 2015-171

Michael Aronow v. Freedom of Information Officer, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center

     Michael Aronow appeared on his own behalf. Assistant Attorney General Jeffrey Blumenthal appeared on behalf of the respondents. The Commissioners unanimously voted to approve the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2015-277

Michael Aronow v. Executive Vice President, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center

     Michael Aronow appeared on his own behalf. Assistant Attorney General Jeffrey Blumenthal appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s report. The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.

Docket #FIC 2015-228

Rich Saluga v. Chairperson, Board of Ethics, Town of Brookfield; Board of Ethics, Town of Brookfield; and Town of Brookfield

     The Commissioners unanimously voted to approve the Hearing Officer’s Report.

Docket #FIC 2015-242

Colonial Health and Rehab Center v. Commissioner, State of Connecticut, Department of Public Health; and State of Connecticut, Department of Public Health

     The Commissioners unanimously voted to approve the Hearing Officer’s Report.

Docket #FIC 2015-243

Jim Dobson v. Chairman, State of Connecticut, Department of Energy and Environmental Protection, Public Utilities Regulatory Authority; and State of Connecticut, Department of  Energy and Environmental Protection, Public Utilities Regulatory Authority

     The matter was removed from the agenda.

Docket #FIC 2015-262

Anne Manusky v. Superintendent of Schools, Bridgeport Public Schools; and Bridgeport Public Schools

     Anne Manusky appeared on her own behalf. Attorney Melika Forbes appeared on behalf of the respondents. The Commissioners voted, 6-0, to approve the Hearing Officer’s Report. The proceedings were recorded digitally. Commissioner Einhorn did not participate in this matter.

Docket #FIC 2015-271

Evan Simko-Bednarski and the Stamford Advocate v. Executive Director, Human Resources, Stamford Public Schools; and Stamford Public Schools

     The Commissioners voted, 6-0, to approve the Hearing Officer’s Report. Commissioner Hankins abstained.

     Colleen M. Murphy told commissioners that no action would be needed in the following matters, as all had been withdrawn the previous day: David Godbout v. Executive Director, Freedom of Information Commission, State of Connecticut, Office of Governmental Accountability; and Freedom  of Information Commission, State of Connecticut, Office of Governmental Accountability, Docket # FIC 2015-044; David Godbout v. Executive Director, Freedom of Information Commission, State of Connecticut, Office of Government Accountability; and Freedom of Information Commission, State of Connecticut, Office of Government Accountability, Docket # FIC 2015-151; David Godbout v. Chair, Board of Firearms Permit Examiners, State of Connecticut, Office of Governmental Accountability; and Board of Firearms Permit Examiners, State of Connecticut, Office of Governmental Accountability, Docket # FIC 2015-046; David Godbout v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection, Docket # FIC 2015-124; David Godbout v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection, Docket # FIC 2015-153 and David Godbout v. Chief, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection, Docket # FIC 2015-213. The proceedings were recorded digitally.

     The Commissioners voted, 5-0, to grant a motion to Reargue/Reconsider dated December 3, 2015 filed by Joseph S. Hubicki in Docket #FIC 2015-147 Marissa Lowthert v. Bruce Likly, Chairman, Board of Education, Wilton Public Schools; Christine Finkelstein, Chris Stroup, Laura Schwemm, Glen Hemmerle, and Lory Rothstein, as members, Board of Education, Wilton Public Schools; and Wilton Public Schools. Commmisioners Einhorn and Shaw did not participate in this matter.

     Victor R. Perpetua reported on the Supreme Court decision in Jay R. Lieberman v. Michael Aronow et al., SC19452.

     Victor R. Perpetua reported on the Appellate Court decision in Nancy Burton v. Freedom of Information Commission et al., AC 36821.

     Victor R. Perpetua and Mary E. Schwind reported on pending appeals.

     The meeting was adjourned at 4:35 p.m.

Docket #FIC 2015-055

Virginia Brown v. Comptroller, State of Connecticut, Office of the Comptroller; and State of Connecticut, Office of the Comptroller

     The Hearing Officer’s Report is amended as follows:

     31. With respect to IC-2015-055-1 through IC-2015-055-[24] 16, the respondents contend that such records are exempt under §1-210(b)(1), G.S. 

     38.  With respect to IC-2015-055-8 through IC-2015-055-13, it is found that such records consist of an email (with A MULTI-PAGE attachment) relating to a chronology of an IRS section 415 issue.  Attorney Braswell testified, and the respondents contended in their post-hearing brief, that such records relate to an on-going issue that has not yet been resolved or finalized and for which the respondents have retained counsel.  Thus, the respondents believed that the public interest in withholding IC-2015-055-8 through IC-2015-055-13 clearly outweighed the public interest in disclosure.

     39.  BASED UPON A CAREFUL REVIEW OF IC-2015-055-8, IT IS FOUND THAT SUCH RECORD CONSISTS OF A ONE-PAGE EMAIL.  IT IS ALSO FOUND THAT IC-2015-055-8 IS NOT WITHIN THE SCOPE OF THE COMPLAINANT’S JUNE 2ND REQUEST AS DESCRIBED IN PARAGRAPHS 2 AND 13, ABOVE, AND THEREFORE IS NOT RESPONSIVE TO THE JUNE 2ND REQUEST.  ACCORDINGLY, THE RESPONDENTS DID NOT VIOLATE THE FOI ACT WHEN THEY WITHHELD IC-2015-055-8 FROM THE COMPLAINANT.

     [39] 40.  Based on testimonial evidence and upon a careful review of IC-2015-055-[8] 9 through IC-2015-055-13, it is found that such records constitute preliminary drafts or notes within the meaning of §1-210(b)(1), G.S.  It is further found that the respondents determined that the public interest in withholding such documents clearly outweighed the public interest in disclosure, within the meaning of §1-210(b)(1), G.S.

     [40] 41.  Section 1-210(e)(1), G.S., provides in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

     [41] 42.  Upon a careful review of IC-2015-055-[8]9 through IC-2015-055-13, it is found that such records are not interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S.  Accordingly, it is concluded that such records are permissibly exempt from disc losure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S.

     [42] 43.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with copies of IC-2015-055-[8]9 through IC-2015-055-13.

     [43] 44.  With respect to IC-2015-055-17 through IC-2015-055-56, the respondents claim that such records are exempt pursuant to §1-210(b)(13), G.S.

     [44] 45.  Section 1-210(b)(13), G.S., provides “[n]othing in the Freedom of Information Act shall be construed to require disclosure of “[r]ecords of an investigation or the name of an employee providing information under the provisions of section 4-61dd [i.e., whistleblower statute] or sections 4-276 to 4-280 [i.e., CT False Claims Act], inclusive.” (Emphasis added).

     [45] 46. The Commission notes that the Superior Court has found that “[t]he unambiguous language of §1-210(b)(13)…provides two exemptions from disclosure for ‘records of an investigation’ and ‘the name of an employee providing information’ under §4-61dd.”  See State of Connecticut, Office of the Attorney General v. Freedom of Information Commission, 2011 WL 522872, *5 (Conn. Super. Ct. Jan. 20, 2011).  “By simultaneously enacting the whistleblower statute and subsection 1-210(b)(13) of the Freedom of Information Act, the legislature set forth its intent to protect whistleblower identity and all records related to a whistleblower investigation….  The legislative history supports a consistent application of the whistleblower statute and the FOIA, which complement each other.  The legislative history indicates that the legislature intended to protect the identity of whistleblowers and related information….”  See Office of the Attorney General, Opinion No. 2002-025, 2002 WL 1747704 (Conn. A.G.) (July 24, 2002).

     [46] 47.  It is concluded that §1-210(b)(13), G.S., gives a public agency discretion to withhold records prepared or received by such agency relating to a whistleblower investigation.  It is concluded that there is no provision in §1-210(b)(13), G.S., limiting its provisions to records of the Attorney General or the State Auditors.

     [47] 48.  After careful review of IC-2015-055-17 through IC-2015-055-56 and consideration of the testimonial evidence provided at the hearings in this matter, it is found that such records pertain to a whistleblower complaint and ongoing investigation.

     [48] 49.  It is found that IC-2015-055-17 through IC-2015-055-56 are permissively exempt from disclosure pursuant to §1-210(b)(13), G.S.  It is therefore concluded that the respondents did not violate the FOI Act by withholding such records from the complainant.

     [49] 50.  With respect to IC-2015-055-57 through IC-2015-055-187 and IC-2015-055-01a through IC-2015-055-13a, it is found that such records consist of Brenda Halpin’s calendar.  IT IS ALSO FOUND THAT THE RESPONDENTS PROVIDED NUMEROUS RESPONSIVE CALENDAR ENTRIES TO THE COMPLAINANT.  FURTHERMORE, [B]based upon a careful IN CAMERA review [of such records], it is found that, except for the entries described in paragraphs [50, 51 and 52] 51, 52 and 53, below, the [unredacted] WITHHELD calendar entries [in IC-2015-055-57 through IC-2015-055-187 and IC-2015-055-01a through IC-2015-055-13a] do not specifically relate to Brenda Halpin’s “professional appointments/meetings,” and therefore are not responsive to the complainant’s Request No. 31, described in paragraph 2, above.  Accordingly, the respondents did not violate the FOI Act when they withheld such NONRESPONSIVE entries from the complainant.

    [50] 51.  Based upon a careful review of the unredacted calendar entries, it is found that the following entries relate to Brenda Halpin’s “professional appointments/meetings” and therefore are responsive to the complainant’s Request No. 31:

     [51] 52.  Based upon a careful review of the unredacted calendar entries, it is found that the following entries are incomplete: IC-2015-055-178 (2nd column, 2nd row, 14th entry); IC-2015-055-180 (2nd column, 2nd row, 14th entry); IC-2015-055-183 (1st column, 3rd row, 14th entry); and IC-2015-055-184 (2nd column, 2nd row, 14th entry).  It is found that the respondents have failed to prove that such entries are outside the scope of the complainant’s Request No. 31.

     [52] 53.  Based upon a careful review of the unredacted calendar entries, it is found that the respondents have failed to prove that the following entries are outside the scope of the complainant’s Request No. 31:

     [53] 54.  It is found that the respondents failed to provide the complainant with the calendar entries, described in paragraphs [50, 51 and 52] 51, 52, 53, above; therefore, the respondents violated the provisions of the FOI Act.

     [54] 55.  With respect to whether the respondents promptly provided responsive records to the complainant, the Commission has held that the meaning of the word “promptly” is a particularly fact-based question.  In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request.

     [55] 56.  The advisory opinion goes on to describe some of the factors that should be   considered in weighing a request for records against other priorities:  the volume of records requested; the time and personnel required to comply with a request; the time by which the   person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

     [56] 57.  It is found that the respondents did not unduly delay responding to the complainant’s records request.  Given the volume of the request, the complainant’s decision not to narrow and/or prioritize her 31-part request and her decision not to identify, prior to the September 14th hearing in this matter, records that she believed were responsive but which the respondents had not provided in response to her request, it is found that the respondents’ production of approximately 3,100 pages of records, in installments, over a [six] SEVEN month period was reasonable.  Accordingly, it is found that, based on the facts and circumstances of this case, the respondents’ response was prompt.  Accordingly, the respondents did not violate the promptness requirements under the FOI Act in this matter.

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

Docket #FIC 2015-277

Michael Aronow v. Executive Vice President, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center

     The Hearing Officer’s Report is amended as follows:

     29. It is further found that the respondents made the necessary determination that “the public interest in withholding such [preliminary notes] clearly outweighs the public interest in disclosure,” within the meaning of §1-210(b)(1), G.S.  It is found such determination was based on the following considerations: the notes were taken by the investigators while conducting their respective investigations for the purpose of being able to recall relevant and important details at the time the final investigative reports were written; the notes were, at all times, for the investigators’ own personal use; and the respondents were concerned that their investigators would be too focused on the content or nature of their personal notes, and curtail or forego their note taking if they knew that such notes would later be subject to disclosure. FINALLY, IT IS FOUND THAT THESE RECORDS ARE NOT PART OF THE PROCESS BY WHICH GOVERNMENTAL DECISIONS AND POLICIES ARE FORMULATED, WITHIN THE MEANING OF §1-210(e)(1), G.S.