TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s regular meeting of February 11, 2009
A regular meeting of the Freedom of Information Commission was held on February 11, 2009, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:10 p.m. with the following Commissioners present:
Commissioner Andrew J. O’Keefe, presiding
Commissioner Sherman D. London
Commissioner Dennis O’Connor (participated via speakerphone)
Commissioner Norma E. Riess
Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Victor R. Perpetua, Clifton A. Leonhardt, Tracie C. Brown, 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 January 29, 2009 as corrrected.*
Docket #FIC 2008-105 William T. Jones v. Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction
Assistant Attorney General Henri Alexandre appeared on behalf of the respondents.
The Commissioners unanimously voted to adopt the Hearing Officer’s report as corrected.*
Docket #FIC 2008-578 Victor Roldan v. Chief, Police Department, City of Stamford; and Police Department, City of Stamford
Victor Roldan participated via speakerphone. The Commissioners unanimously voted
to adopt the Hearing Officer’s report.
Minutes, Regular Meeting, February 11, 2009
Page 2
Docket #FIC 2008-121 Zachary Janowski and the Chronicle Printing Company v. Fiscal Policy Board, Town of Columbia
The Commissioners unanimously voted to amend the Hearing Officer’s Report. The
Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Docket #FIC 2008-122 Zachary Janowski and the Chronicle Printing Company v. Office of the Town Administrator, Town of Columbia
The Commissioners unanimously voted to amend the Hearing Officer’s Report. The
Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Docket #FIC 2008-124 Brian Belanger v. Division Counsel, State of Connecticut, Office of the State Comptroller, Retirement & Benefit Services Division; and State of Connecticut, Office of the State Comptroller, Retirement & Benefit Services Division
Brian Belanger appeared on his own behalf. Attorney Steven Aronson and Helen
Kemp 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.
Docket #FIC 2008-223 Naimah Shabazz v. Corporation Counsel, City of Hartford; and City of Hartford
Naimah Shabazz appeared on her own behalf. Attorney J. Hanson Guest 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.*
Docket #FIC 2008-409 James Torlai v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, February 11, 2009
Page 3
Docket #FIC 2008-464 Socorro Barron v. Chairman, Housing Authority, Town of Ridgefield; and Housing Authority, Town of Ridgefield
Socorro Barron appeared on her own behalf. Attorney Beverly Rogers appeared on
behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing
Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2008-512 Kevin Brookman v. Office of the Mayor, City of Hartford;
and City of Hartford
The Commissioners voted unanimously to reopen the matter.
Docket #FIC 2008-621 Kevin Brookman v. Human Relations Director, City of Hartford; and City of Hartford
The Commissioners voted unanimously to reopen the matter.
Docket #FIC 2008-536 Karen Osbrey and WINY Radio v. Board of Education, Putnam Public Schools
Karen Osbrey and Gary Osbrey appeared on behalf of the complainants. Attorney Dan
Murphy appeared on behalf of the respondent. The Commissioners unanimously voted to
adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2008-540 Vernette Tyson v. David G. Title, Superintendent of Schools, Bloomfield Public Schools; Irene Zytka, Principal, Bloomfield High School, Bloomfield Public Schools; and Board of Education, Bloomfield Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, February 11, 2009
Page 4
The Commissioners voted unanimously to appoint Commissioner Sherman D. London
to prepare proposed final decisions in the following matters, which were heard by the late
Commissioner Vincent M. Russo: Docket #FIC 2008-460 Tracy Carroll v. Executive Board,
Morningside Association and Docket #FIC 2008-465 Walter Chmurynski v. First Selectman,
Town of Bozrah.
The Commissioners unanimously voted to add the following item to the agenda:
Consideration of withdrawal of the Commission’s appeal of the Superior Court Decision in James Tillman v. Freedom of Information Commission, et al. CV07-4044748 (Aug. 18, 2008). The Commissioners unanimously voted to withdraw the Commission’s appeal of the Superior Court Decision in James Tillman v. Freedom of Information Commission, et al. CV07-4044748 (Aug. 18, 2008).
Victor Perpetua reported on pending appeals
Colleen Murphy reported on legislation.
The meeting adjourned at 4:21 p.m.
_______________________
Thomas A. Hennick
MINREG meeting 02112009/tah/02132009
Minutes, Regular Meeting, February 11, 2009
Page 5
CORRECTIONS and AMENDMENT S
Page 4 of the minutes of the January 29, 2009 meeting is corrected as follows:
Docket #FIC 2008-467 Timothy H. Becker v. Housing Authority, Town of Manchester
Timothy Becker appeared on his own behalf. Attorney Malcolm [Becker] BARLOW appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2008-105 William T. Jones v. Warden, State of Connecticut, Department of Correction, Northern Correctional Institution; and State of Connecticut, Department of Correction
Paragraph 17 of the Hearing Officer’s Report is corrected as follows:
17. It is therefore concluded that the respondents did not violate[d] §§1-210(a) and 1-212(a), G.S., by failing to provide unredacted records to the complainant.
Docket #FIC 2008-121 Zachary Janowski and the Chronicle Printing Company v. Fiscal Policy Board, Town of Columbia
Paragraph 10 of the Hearing Officer’s Report is amended as follows:
10. At the hearing on this matter, the complainant contended that the letter,
described in paragraph [8] 9, above, is a clear indication that the respondent discussed
matters over which it has jurisdiction and control which discussion should have been
held in public at an open meeting and recorded in the respondent’s minutes.
Docket #FIC 2008-122 Zachary Janowski and the Chronicle Printing Company v.
Office of the Town Administrator, Town of Columbia
Paragraph 4 of the Hearing Officer’s Report is amended as follows:
4. It is found that after providing notice to the subjects of the records described in paragraph [3] 2, above, the respondent received written objections to the disclosure of said records from two of the subjects. The third subject indicated in writing that he did not object to the disclosure of the records.
Minutes, Regular Meeting, February 11, 2009
Page 6
Docket #FIC 2008-124 Brian Belanger v. Division Counsel, State of Connecticut,
Office of the State Comptroller, Retirement & Benefit
Services Division; and State of Connecticut, Office of the
State Comptroller, Retirement & Benefit Services Division
The Hearing Officer’s Report is amended as follows:
[13. Section 1-210(b)(4), G.S., provides that disclosure is not required of: Records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled ….
14. It is found that Attachment A is a record pertaining to strategy and negotiation with respect to the seven pending cases to which the Retirement Commission was a party.
15. It is therefore concluded that Attachment A is permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S.
16. Given the conclusion in paragraph 15, above, it is unnecessary to decide the question whether Exhibit A is also permissibly exempt from disclosure under §1-210(b)(10), G.S., as a record privileged by the attorney-client relationship.]
13. The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the privilege. Maxwell v. FOI Commission, 260 Conn. 143 (2002). In Maxwell, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id. at 149.
14. Section 52-146r(2), G.S., defines “confidential communications” as:
all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .
Minutes, Regular Meeting, February 11, 2009
Page 7
15. The Supreme Court has also stated that “both the common-law and statutory privileges protect those communications between a public official or employee and an attorney that are confidential, made in the course of the professional relationship that exists between the attorney and his or her public agency client, and relate to legal advice sought by the agency from the attorney.” Maxwell, supra at 149.
16. It is found that Attachment A is, on its face, privileged by the attorney-client relationship, and therefore exempt from disclosure pursuant to §1-210(b)(10), G.S., unless the privilege was waived.
17. It is found that Attachment A was at all times maintained in confidence, was given only to members of the respondent and key staff, and was never shared with a third party.
18. The complainant maintains that the privilege was waived because (a) Attachment A was “attached” to the minutes of the meeting; and (b) because the memorandum was discussed at a public meeting.
19. While Attachment A was distributed to members of the Retirement Commission at its October 9, 2007 meeting, and was referred to as “Attachment A” in the minutes of that meeting, Attachment A was not attached to the minutes of the meeting, but rather included in a package previously provided to members of the Retirement Commission only.
20. It is also found that the legal opinion contained in Attachment A was not discussed in the public portion of the October 9, 2007 meeting, but only in executive session.
21. It is concluded that the privilege was not waived.
[17] 22. It is therefore concluded that the respondents did not violate §1-210(a), G.S., when it declined to provide the complainant with Attachment A.
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.
Minutes, Regular Meeting, February 11, 2009
Page 8
Docket #FIC 2008-223 Naimah Shabazz v. Corporation Counsel, City of Hartford;
and City of Hartford
The Hearing Officer’s Report is amended as follows:
23. It is found that the intervenors filed an objection to disclosure of their personnel files on July 23, 2008. It is found that the intervenors stated that there was good ground to support their objection and that the objection was not interposed for delay. It is found that the intervenors did [not] sign their statement under the penalties of false statement, as required by §1-214(c), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents forthwith shall conduct a prompt search for all of the records requested by the complainant, described in paragraph 2, above. After a prompt and diligent search, the respondents shall provide the complainant with an affidavit as to the records they do not maintain, and, if applicable, as to the search they performed to try to find such records. The respondents shall promptly provide ACCESS TO AND/OR copies , AT THE DISCRETION OF THE COMPLAINANT, of all other records requested by the complainant, including the intervenors’ personnel files FREE OF CHARGE.
[2.The respondents forthwith shall reimburse complainant for her lost wages or accrued leave, if any, on September 3, 2008 and October 6, 2008. The complainant shall provide to the respondents proof, through affidavit or other competent evidence, of lost wages or accrued leave on September 3, 2008 and October 6, 2008.]
[3.] 2.[Henceforth, the respondents shall strictly comply with the requirements of the FOI Act. The respondents are strongly encouraged to attend a FOI workshop to be conducted by a member of the Commission’s staff. The respondents or their counsel should contact the Commission’s office to arrange such workshop.] FORTHWITH, THE RESPONDENTS, OR THEIR DESIGNEE, SHALL ARRANGE FOR AN FOI ACT TRAINING SESSION TO BE CONDUCTED BY THE STAFF OF THE FOI COMMISSION. THE RESPONDENTS OR THEIR DESIGNEE SHALL FORTHWITH CONTACT THE FOI COMMISSION’S STAFF TO SCHEDULE SUCH TRAINING SESSION.