FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Richard Rowlenson and

Gemini Networks Inc.,

 
  Complainants  
  against   Docket #FIC 2005-408

John Fonfara, Co-Chairman,

State of Connecticut,

Connecticut General Assembly,

Energy and Technology Committee,

 
  Respondent  June 14, 2006
       

           

The above-captioned matter was heard as a contested case on December 7, 2005, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with docket #FIC 2005-324 Gemini Networks , Inc., v. Director, State of Connecticut, Connecticut General Assembly, Legislative Commissioners’ Office; docket #FIC 2005-372, Richard Rowlenson and Gemini Networks, Inc. v. State of Connecticut, Connecticut General Assembly, Energy and Technology Committee; and docket #FIC 2005-407, Richard Rowlenson and Gemini Networks, Inc. v. Steve Fontana, Co-Chairman, State of Connecticut, Connecticut General Assembly, Energy and Technology Committee.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

 

1.  The respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter of complaint filed July 29, 2005, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying them access to public records, and by conducting ex parte meetings with Department of Public Utility Control (“DPUC”) Commissioner Jack Goldberg and representatives of SBC Communications (“SBC”) on or about June 3, 2005, for which meetings the complainants received no notice or opportunity to be heard.

 

3.      It is found that the complainants made a request dated June 30, 2005 to the respondent for:

 

a copy of any Memorandum of Understanding drafted or entered into in connection with the Amendment, LCO No. 7854, SB109707854SDO, Section 2, subsection (a) (the “Amendment”) and debated on the House floor between 10 and 11 p.m. on June 7, 2005.  Additionally, please provide copies of any notes, drafts, correspondence, emails, memoranda or other documents related to the negotiation or promulgation of the Amendment.

 

4.  It is found that by letter dated July 6, 2005, the respondent replied that he was conducting a search of his materials to determine if he was in possession of any of the requested items, and would provide the complainants with documents subject to disclosure under the FOI Act.

 

5.  It is found that the respondent provided the complainants with records responsive to the request sometime between July 6, 2005 and December 1, 2005.  At the hearing, the only public records issue contested by the parties was whether the respondent had provided all emails responsive to the complainants’ request.

 

6.  It is found that the complainant Gemini Networks, Inc. (“Gemini”) is a Competitive Local Exchange Carrier (“CLEC”). 

 

7.  The Commission takes administrative notice of the fact that a CLEC is a telephone company that competes with the already established local telephone business by providing its own network and switching. The term distinguishes new or potential competitors from established or incumbent local exchange carriers (“ILECs”) (that is, the Bell operating companies) and arises from the Telecommunications Act of 1996, which was intended to promote competition among both long-distance and local phone service providers.

 

8.  It is found that Gemini sought to use SBC’s abandoned hybrid fiber-coaxial broadband network (the “network”).

 

9.  It is found that, in December of 2003, the DPUC issued a ruling, based on a petition filed by Gemini, ordering SBC to provide competitors, including Gemini, with “unbundled” access to the network.  That ruling was appealed by SBC.  On remand, the DPUC issued a subsequent decision in August 2004 confirming its earlier order that SBC unbundle the network for use by competitors.  Both DPUC proceedings were presided over by Commissioner Goldberg.  SBC then filed suit in U.S. District Court for the district of Connecticut seeking preemption of both decisions; that case was pending at the time of the hearing on this matter.

 

10.  It is found that “unbundling” is a regulatory requirement that enables a CLEC to purchase parts of the ILEC’s network in order to provide service to its customers.

 

11.  It is found that Gemini then attempted to negotiate an interconnection agreement with SBC, which agreement was a necessary prelude to Gemini’s use of SBC’s unbundled network.

 

12.  It is found that such negotiations were unsuccessful, and that Gemini then requested that the DPUC arbitrate the outstanding issues.  Commissioner Goldberg was designated by the Chairman of the DPUC as the impartial arbitrator.  That arbitration was underway at the time of the hearing on this matter.

 

13.  It is found that, in January of 2005, SBC proposed a bill, SB 1097, to provide SBC with pricing flexibility.  Gemini opposed that bill.

 

14.  It is found that both Gemini and SBC lobbied concerning SB 1097.

 

15.  It is found that both Gemini and SBC communicated with the respondent concerning SB 1097, including communication by email.

 

16.  It is found that the respondent attempted to broker a deal for the purchase, rather than lease, of SBC’s network by Gemini.

 

17.  It is found that Gemini declined to enter into such an agreement, for both business and legal reasons, notifying the respondent of its decision on June 2, 2005.

 

18.  It is found that the respondent met informally with representatives of SBC and Commissioner Goldberg on June 3, 2005 concerning SB 1097.

 

19.  It is found that SB 1097 passed the House on June 6, 2005 with two amendments.  The first amendment gave DPUC the authority to enter into memoranda of understanding (“MOU”) with third parties.  The second amendment provided that SBC’s network could not be unbundled unless the Federal Communications Commission expressly so ordered.

 

20.  It is found that a MOU was negotiated between SBC and the DPUC, wherein, upon the passage of SB 1097, the DPUC would reopen and vacate its decisions ordering unbundled access to the network and SBC would permit the DPUC to place the network up for competitive auction on the terms previously offered to Gemini.

 

21.  It is found that the amended bill was passed by the Senate and General Assembly, but was vetoed by the Governor.

 

22.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

23.  Section 1-210(a), G.S., provides in relevant part:

 

Except 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.  … Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the Secretary of the State, as the case may be. 

 

24.  It is concluded that the requested email records, to the extent they exist, are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

25.  It is found that the respondent used an AOL account through his home computer to communicate regarding SB 1097.

 

26.  It is found that the respondent did not print any such emails from his AOL account or transfer them to hard drive of his home computer for storage.

 

27.  It is found that incoming emails are automatically deleted after seven days, and outgoing emails after 27 days, pursuant to AOL’s email retention/deletion policy applicable to the respondent’s account. 

 

28.  It is found that the respondent twice performed a search for the requested emails in his AOL account, first within a day or two of the June 30, 2005 request, and again on or about October 25, 2005.

 

29.  It is found that no responsive emails existed in the AOL account at the time of the respondent’s two searches.

 

30.  It is found that the only email correspondence received on or sent from the respondent’s AOL account concerning SB 1097 was correspondence with counsel for complainant, who has copies of such emails.

 

31.  It is found that Web-based email, such as that administered by AOL and other providers, can sometimes, by means of computer forensic methodologies, be recovered from the computer used to download or store the email, even if the email has not been previously saved to the computer’s hard drive.

 

32.  It is found that the cost of attempting to recover any such emails in this case is approximately $2,500 to $4,000.

 

33.  The respondent contends that any effort to examine the hard drive of his home computer for the possible existence of emails responsive to the complainant’s request would be “harassing, utterly unwarranted, and a severe invasion of my privacy and the privacy of my family.”

 

34.  It is found, however, that the respondent himself opened his home computer to potential public scrutiny by using it to conduct official business.  See Docket #FIC 2004-323, Mark O. Weeks v. First Selectman, Town of Canterbury.

 

35.  The complainant contends that it is possible to locate and recover only the relevant documents, while maintaining the privacy of other non-relevant documents.

 

36.  It is found, however, the only email correspondence received on or sent from the respondent’s AOL account concerning SB 1097 was correspondence with counsel for complainant, who has copies of such emails, and that therefore there is no practical reason to recover additional copies of such emails from the respondent’s home computer.  See, Weeks v. Canterbury, above (Commission declines to order search of hard drive of computer for emails previously provided to complainant.)

 

37. It is therefore concluded, under the specific facts and circumstances of this case, that any further attempt to recover responsive emails from the respondent’s hard drive is not warranted.

 

38.  It is therefore concluded that the respondent did not violate 1-210(a), G.S., by declining to submit his computer hard drive for forensic analysis.

 

39.  The complainant also contends that the June 3, 2005 meeting described in paragraph 18 of the findings, above, is subject to the notice and attendance requirements of the FOI Act.

 

40.  Section 1-225(a), G.S., provides in relevant part: “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. 

 

41.  Section 1-200(2) defines “meeting” to mean:

 

… any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power….

 

42.  The complainant contends that the June 3, 2005 meeting described in paragraph 18 of the findings, above, was a meeting of both the General Assembly and the DPUC within the meaning of 1-225(a) and 1-200(2), G.S.  The complainant argues out that the June 3, 2005 meeting substituted for the ordinary legislative process of the consideration of a bill by the committee, but without being open to the public or giving the complainant an opportunity to be heard.

 

43. It is found that the respondent, Senator Fonfara, although a co-chair of the Energy and Technology Committee of the General Assembly (the “Committee”), did not act with either the express or implied authority of that committee.  Nor did the June 3, 2005 meeting between the respondent, DPUC Commissioner Goldberg, and the SBC representatives advance the business of the Committee.

 

44.  It is therefore concluded that the June 3, 2005 meeting was not a proceeding of the Committee.

 

45.  While the June 3, 2005 meeting may have arguably been objectionable as an ex parte continuation of the arbitration proceeding conducted by Commissioner Goldberg, neither Commissioner Goldberg nor the DPUC is a respondent in this case.

 

46.  It is therefore concluded that the respondent did not violate the open meetings requirements of 1-210(a), G.S.

 

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

 

            1.  The complaint is dismissed.

 

2.  The Commission urges the respondent to use only his State of Connecticut email account to conduct his business.  The Commission is not persuaded that the respondent’s AOL account remains “personal,” as the respondent contends, when it is used to conduct the respondent’s business.  Moreover, the Commission notes that its decision not to subject the respondent’s home computer to forensic examination is limited to the facts and circumstances of this case only, because such examination would result only in the production of records previously provided to complainants’ counsel.  The Commission notes that the respondent’s State of Connecticut account is accessible from any computer with internet access, and therefore believes that the respondent’s use of his home computer to receive, send or store email pertaining to official business is unnecessary. 

 

            3.  Finally, the Commission further urges the respondent to contact the State Records Administrator concerning the retention of emails.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 14, 2006.

 

________________________________

Petrea A. Jones

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:

 

Richard Rowlenson and

Gemini Networks Inc.

c/o Katherine A. Scanlon, Esq.

Pullman & Comley LLC

90 State House Square

Hartford, CT 06103-3702

 

John Fonfara, Co-Chairman,

State of Connecticut,

Connecticut General Assembly,

Energy and Technology Committee  

c/o Perry Zinn Rowthorn, Esq.

Assistant Attorney General

PO Box 120

55 Elm Street

Hartford, CT 06141-0120

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-408FD/paj/6/20/2006