TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s special meeting of April 8, 2009
A special meeting of the Freedom of Information Commission was held on April 8, 2009, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 1:05 p.m. with the following Commissioners present:
Commissioner Andrew J. O’Keefe, presiding
Commissioner Sherman D. London
Commissioner Norma Riess (participated via speakerphone)
Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, 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 March 25, 2009.
Docket #FIC 2008-318 Eddie Schmidt v. Chief, Police Department, City of Meriden; Internal Affairs Unit, Police Department, City of Meriden; and Police Department, City of Meriden
Eddie Schmidt participated via speakerphone. The Commissioners unanimously
voted to adopt the Hearing Officer’s Report.
Docket #FIC 2008-327 Ryshon Wells v. Chief, Police Department, City of Bridgeport
Ryshon Wells participated via speakerphone. Attorney Melanie Howlett appeared
on behalf of the respondent. The Commissioners tabled the matter. The proceedings were
recorded digitally.
Minutes, Special Meeting, April 8, 2009
Page 2
Docket #FIC 2008-374 Ryshon Wells v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
Ryshon Wells participated via speakerphone. Attorney Nancy O’Brasky appeared
on behalf of the respondents. The Commissioners tabled the matter. The proceedings were
recorded digitally.
Docket #FIC 2007-136 Rashad El Badrawi v. Commissioner, State of Connecticut,
Department of Correction
Attorney Michael Wishnie, Attorney Bram Elias, Christine Kyu and Saurabh Sanghvi
appeared on behalf of the complainant. Assistant Attorney General Henri Alexandre appeared
on behalf of the respondents. Attorney Marcia Sowles appeared on behalf of the intervenor,
the United States. The Commissioners unanimously voted to adopt the Hearing Officer’s
Report. The proceedings were recorded digitally.
Docket #FIC 2008-300 Edward A. Peruta v. Connecticut Network
Attorney Katherine Scanlon appeared on behalf of the respondent. The
Commissioners unanimously voted to adopt the Hearing Officer’s Report.
The proceedings were recorded digitally.
Docket #FIC 2008-402 Dawn Massey v. Assessor, Town of Branford; and Office of the Assessor, Town of Branford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2008-431 Dawn Massey v. Assessor, Town of Branford; and Office of the Assessor, Town of Branford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Special Meeting, April 8, 2009
Page 3
Docket #FIC 2008-460 Tracy Carroll v. Executive Board, Morningside Association
Tracy Carroll appeared on his own behalf. The Commissioners unanimously voted to
adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2008-465 Walter Chmurynski v. First Selectman, Town of Bozrah
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2008-619 Earle Walker v. Elaine Bonfiglio, Insurance Specialist, Hartford Public Schools; and Hartford Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2008-663 Jon Papaioannou and Marie Papaioannou v. Marilyn
Muratori, Animal Control Officer, Town of Southbury; and
Town of Southbury
Jon Papaioannou appeared on his own behalf. Attorney Robert Nastri Jr. appeared on
behalf of the respondents. The Commissioners unanimously voted twice 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.
Kathleen R. Ross reported on the New Britain Superior Court Memorandum of Decision in State of Connecticut, Department of Public Safety v. Freedom of Information Commission, Heather Nann Collins, Alexander Wood and the Manchester Journal Inquirer dated March 24, 2009.
Victor R. Perpetua reported on pending appeals.
Colleen M. Murphy reported on legislation.
The meeting was adjourned at 3 p.m.
_______________________
Thomas A. Hennick
*SEE ATTACHED FOR AMENDMENT
MINSPEC meeting 04082009/tah/04132009
Minutes, Special Meeting, April 8, 2009
Page 5
AMENDMENT
Docket #FIC 2008-663 Jon Papaioannou and Marie Papaioannou v. Marilyn
Muratori, Animal Control Officer, Town of Southbury; and
Town of Southbury
The Hearing Officer’s Report is amended as follows:
13. Finally, it is found that the requests of the complainants were the first FOIA requests for records received by the respondent Animal Control Officer. It is found that the pending [law enforcement] INFRACTION action, combined with inexperience with the FOIA, caused the respondents to be cautious concerning the disclosure of records to the complainants.
14. At the hearing, the counsel for the respondents underscored that [criminal] infraction charges were pending at all times relevant to the FOIA complaint.
[16. The respondents’ burden of proof under §1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action. Department of Public Safety v. FOIC, 51 Conn. App. 100, 104-105 (1998).
17. It is concluded that, based upon her function of producing evidentiary reports for the enforcement of criminal infractions, the respondent Animal Control Officer is a law enforcement agency.
18. It is concluded that disclosure of:
a) one of the six photographs, a photograph depicting one of the complainants’ dogs, might have been prejudicial to the prospective law enforcement action, but in any case, all the photographs were disclosed to the insurer of the complainants on August 26, 2008, before the law enforcement action was resolved;
b) the additional records disclosed on December 12, 2008 would not have been prejudicial to a prospective law enforcement action, and in any case, were provided before the law enforcement action was resolved; and
Minutes, Special Meeting, April 8, 2009
Page 6
c) the handwritten notes would not have been prejudicial to a prospective law enforcement action, and were provided to the complainants only on the day the law enforcement action was resolved.
19. It is concluded that any claim of exemption for the photograph of the dog discussed at paragraph 18. a, above, was waived by disclosure on August 26, 2008, and therefore that none of the records withheld after June 17, 2008 were exempt from disclosure pursuant to §1-210(b)(3)(C), G.S.
20. It is concluded that the respondents did not provide the complainants promptly with the records described at paragraph 18.
21. It is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide the records described at paragraph 18 promptly.]
16. THE RESPONDENTS’ BURDEN OF PROOF UNDER §1-210(B)(3)(C), G.S., REQUIRES AN EVIDENTIARY SHOWING THAT THE RECORDS WERE COMPILED IN CONNECTION WITH THE DETECTION OR INVESTIGATION OF CRIME.
17. IT IS CONCLUDED THAT THAT THE RECORDS WERE COMPILED IN CONNECTION WITH THE DETECTION OR INVESTIGATION OF AN INFRACTION, AND NOT IN CONNECTION WITH THE DETECTION OR INVESTIGATION OF CRIME.
18. IT IS CONCLUDED THAT THE RESPONDENTS VIOLATED §§1-210(A) AND 1-212(A), G.S., BY FAILING TO PROVIDE THE FOLLOWING RECORDS PROMPTLY:
A. THE SIX PHOTOGRAPHS DESCRIBED IN PARAGRAPH 10, ABOVE;
B. THE RECORDS DESCRIBED IN PARAGRAPH 9, ABOVE; AND
C. THE HANDWRITTEN NOTES DESCRIBED IN PARAGRAPH 12, ABOVE.
Minutes, Special Meeting, April 8, 2009
Page 7
[22. ] 19. With respect to the complainants’ request for the imposition of a civil penalty, §1-206(b)(2), G.S. provides, in relevant part:
…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
[23.] 20. Based on the findings in paragraph 13, the Commission finds that that the respondents’ failure to comply with the FOIA was not without reasonable grounds, and therefore that a civil penalty is not warranted.