TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s regular meeting of September 23, 2009
A regular meeting of the Freedom of Information Commission was held on September 23, 2009, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:07 p.m. with the following Commissioners present:
Commissioner Andrew J. O’Keefe, presiding
Commissioner Sherman D. London
Commissioner Dennis O’Connor
Commissioner Norma E. Riess
Commissioner Owen P. Eagan
Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, 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 September 9, 2009.
Docket #FIC 2008-703 Omar Miller v. Chief, Police Department, City of New London; and Police Department, City of New London
Omar Miller participated via speakerphone. Attorney Brian Estep appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2008-704 Jeffrey M. Pierce v. Kenneth Butricks, Administrative Captain, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
Jeffrey Pierce participated via speakerphone. Assistant Attorney General Steven Strom appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Minutes, Regular Meeting, September 23, 2009
Page 2
Docket #FIC 2008-747 E. Gregory Cerritelli v. Chief, Police Department, Town of Derby; and Police Department, Town of Derby
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-018 Paul Wright, Alex Friedmann and the Prison Legal News v. Office of the Corporation Counsel, City of Hartford
Attorney Brett Dignam and Robyn Gallagher appeared on behalf of the complainants. Attorney Melinda Kaufmann appeared on behalf of the respondent. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners voted, 4-1, against a second proposed amendment. Commissioner Eagan voted for the second amendment. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Docket #FIC 2009-076 Bradshaw Smith v. Steven Kosofsky, Assessor, Town of Windsor
Bradshaw Smith appeared on his own behalf. Attorney Vincent Oswecki appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2009-103 William Comerford v. Stephen P. Nere, Executive Director, Housing Authority, Town of Wallingford; Robert Prentice, Chairman, Housing Authority, Town of Wallingford; and Board of Commissioners, Housing Authority, Town of Wallingford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket # FIC 2009-142 Gregory Marsh v. Emily Smith, Freedom of Information Officer, State of Connecticut, Connecticut Innovations, Incorporated; State of Connecticut, Connecticut Innovations, Incorporated; and Connecticut Clean Energy Fund
Attorney Susan Wallace appeared on behalf of the complainant. Attorney Sheila Huddleston appeared on behalf of the respondents. The Commissioners voted to reject the Hearing Officer’s report and reopen the matter. The proceedings were recorded digitally.
Minutes, Regular Meeting, September 23, 2009
Page 3
Docket #FIC 2009-177 Robert Kalechman v. Performing Arts Center Board, Town of Simsbury
The Commissioners postponed action on the matter.
Docket # FIC 2009-270 Wesley S. Lubee, Jr. v. Board of Commissioners, Housing Authority, Town of Wallingford
Wesley Lubee appeared on his own behalf. Attorney E. James Loughlin and Steven Nere appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Victor R. Perpetua, Lisa F. Siegel and Gregory F. Daniels reported on pending appeals.
Colleen M. Murphy reported on legislation.
The meeting was adjourned at 3:43 p.m.
_______________________
Thomas A. Hennick
*SEE ATTACHED FOR AMENDMENT
MINREG meeting 09232009/tah/09242009
Minutes, Regular Meeting, September 23, 2009
Page 4
AMENDMENTS
Docket #FIC 2009-018 Paul Wright, Alex Friedmann and the Prison Legal News v. Office of the Corporation Counsel, City of Hartford
The Hearing Officer’s Report is amended as follows:
[14. It is concluded that the judgment concerning the benefits to the general welfare, and the resulting waiver of fees, pursuant to §1-212(d)(3), G.S., is within the discretion of the respondent. See, e.g., Docket #FIC 1998-067, Joel R. Anderson v. Assessor, Office of the Assessor, Town of Old Saybrook; Office of the Assessor, Town of Old Saybrook; and Town of Old Saybrook; Docket #FIC 1992-331, William Pillarella v. Middletown and City Clerk, and Middletown Charter Revision Committee.]
14. IT IS FOUND, HOWEVER, THAT THE RESPONDENT DID NOT TAKE INTO CONSIDERATION THE PURPOSE FOR WHICH THE INFORMATION WAS SOUGHT OR THE BENEFIT TO THE PUBLIC FROM ITS DISCLOSURE AND PUBLICATION.
15. IT IS ALSO FOUND THAT THE CASE RELIED ON BY THE RESPONDENT TO DENY THE FEE WAIVER, PRISON LEGAL NEWS V. HARLEY G. LAPPIN, 436 F.SUPP.2D 17 (D.D.C. 2006), IN FACT STANDS FOR THE OPPOSITE PROPOSITION: THAT UNDER ANALOGOUS FEDERAL FOI LAW DISSEMINATION OF SIMILAR INFORMATION WAS IN THE PUBLIC INTEREST.
16. IT IS FURTHER FOUND THAT THE GROUNDS ASSERTED BY THE RESPONDENT IN SUPPORT OF ITS DENIAL, THAT THE FEE WAIVER WAS NOT IN THE PUBLIC INTEREST BECAUSE OF THE FINANCIAL BURDEN TO THE CITY OF HARTFORD, WOULD EFFECTIVELY LEAD TO DENIALS OF ALL FEE WAIVERS, EVISCERATING THE STATUTE.
17. IT IS THEREFORE FOUND THAT THE RESPONDENT HAD NO OBJECTIVE, FAIR, OR REASONABLE BASIS FOR DENYING THE COMPLAINANTS’ FEE WAIVER.
18. IT IS THEREFORE CONCLUDED THAT THE RESPONDENT ABUSED ITS DISCRETION WHEN IT DECLINED TO PROVIDE THE REQUESTED RECORDS FREE OF CHARGE.
Minutes, Regular Meeting, September 23, 2009
Page 5
[15.] 19. Accordingly, the respondent [did not violate] VIOLATED §1-212(d)(3), G.S., when it declined to provide the requested records without any charge to the complainants.
[16.] 20. As to the complainants’ claim that the respondent failed to provide them with electronic copies of the requested records, it is found that the respondent does not maintain the requested records in electronic form.
[17.] 21. At the hearing on this matter, the respondent did not contend that it is impossible to scan the requested records or provide the data to the complainants electronically, only that they are not required to do so under the FOI Act.
[18.] 22. It is found that the requested records sought by the complainants were not contained in the electronic storage system or other computer system at the time of the complainants’ request.
[19.] 23. It is concluded that the complainants are not seeking a copy of data maintained in the respondent’s computer system. Rather, the complainants are asking the respondent to convert the requested records to an electronic format by means of scan, fax or by copying the requested records to CD.
[20.] 24. It is concluded that the respondents did not violate §1-211(a), G.S., by declining to provide the requested records to the complainants in electronic form.
[21.] 25. Under the facts and circumstances of this case, the Commission declines to consider the imposition of civil penalties against the respondent.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
[1. The complaint is hereby dismissed.]
1. THE RESPONDENT SHALL FORTHWITH PROVIDE TO THE COMPLAINANTS A COPY OF THE REQUESTED RECORDS FREE OF CHARGE IN EITHER PRINTED OR ELECTRONIC FORMAT.