20091223MSM

TO: Freedom of Information Commission

FROM: Thomas A. Hennick

RE: Minutes of the Commission’s special meeting of December 23, 2009

A special meeting of the Freedom of Information Commission was held on December 23, 2009, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 10:06 a.m. with the following Commissioners present:

Commissioner Andrew J. O’Keefe, presiding

Commissioner Sherman D. London

Commissioner Dennis O’Connor

Commissioner Norma E. Riess (participated via speakerphone)

Commissioner Owen P. Eagan

Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Tracie C. Brown, 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.

Docket #FIC 2009-020 Richard Stevenson v. Joan M. Ellis, Administrator, State of Connecticut, Department of Correction, Freedom of Information Office; and State of Connecticut, Department of Correction

Richard Stevenson participated via speakerphone. Assistant Attorney General Terrence O’Neill and Assistant Attorney General Lynn Wittenbrink appeared on behalf of the respondents. Attorney J. William Gagne appeared on behalf of the intervenor AFSCME Council 4 union. Attorney Robert Krzys appeared on behalf of the intervenor Correctional Supervisors (NP-8 Unit) union. The Commissioners voted, 4-1, to amend (AMENDMENT A ATTACHED) the Hearing Officer’s Report. Chairman O’Keefe voted against adoption. The Commissioners voted unanimously to reconsider their vote on the amendment. The Commissioners voted to recess the meeting to allow staff to draft a new amendment. The Commissioners reconvened and unanimously voted to reject the amendment (AMENDMENT A) under reconsideration. The Commissioners unanimously voted to substitute the version of the Hearing Officer’s Report dated December 21, 2009 for the previous version of the Hearing Officer’s report. The Commissioners unanimously voted to amend (AMENDMENTS B and C ATTACHED) the Hearing Officer’s Report dated December 21, 2009.

Minutes, Special Meeting, December 23, 2009

Page 2

The Commissioners voted, 3-2, to reject the amended Hearing Officer’s Report. Chairman O’Keefe and Commissioner Eagan voted in favor of acceptance. Commissioners O’Connor, London and Riess voted to reject the report. The Commissioners voted to recess the meeting to allow staff to draft amendments to the Hearing Officer’s Report. The Commissioners unanimously voted to reconsider the motion to deny the amended December 21, 2009 Hearing Officer’s Report. The Commissioners unanimously voted to table the matter until a special meeting on January 6, 2010 at 10 a.m.

The meeting was adjourned at 2:25 p.m.

______________________

Thomas A. Hennick

*SEE ATTACHED FOR AMENDMENTS

MINREG meeting 12232009/tah/12232009

Minutes, Special Meeting, December 23, 2009

Page 3

Amendment A

(NEW) 79. The Commission declines to consider the imposition of a civil penalty in this case because the respondents, having refused to comply with the Commission’s Order for Production of In Camera Records, have deprived the Commission of the ability to review evidence that would enable the Commission to make an informed decision whether or not the denial of the complainant’s records request was without reasonable grounds.

Amendment B

I. Delete paragraphs 49 through 53 of the findings and substitute the following:

49. NEW. It is found that the legislature’s approval of the interest arbitration award pertaining to the NP-8 Unit contract deprives the Commission of jurisdiction over the records at issue, to the extent such records pertain to NP-8 Unit employees.

II. Renumber the remaining paragraphs.

III. Delete the order and substitute the following:

1. With the exception of those records that pertain to employees of the NP-8 Unit, the respondents shall forthwith provide to the complainant, free of charge, all records reflecting the names of correction officers who have reported their arrests or summons, the charge, and the disposition of any criminal cases against Department of Correction administrators, staff and employees, dating from January 2005 through December 15, 2008.

2. In providing such records, the respondents may redact any information from the records other than the information described in paragraph 1 of the order, above.

3. With respect to the records not covered by the collective bargaining agreement, the respondents are ordered to provide to the complainant those records that are not subject to erasure pursuant to §54-142c.

4. The respondents shall thereafter provide the Commission with an affidavit, prepared by a person with knowledge of the records at issue, indicating that they have provided all records requested, with the exception of the records that are covered by the NP-8 collective bargaining agreement and those records that are erased pursuant to §54-142c.

Minutes, Special Meeting, December 23, 2009

Page 4

Amendment C

1. With respect to the complainant’s request for the imposition of civil penalties, §1-206(b)(2), G.S., provides in relevant part:

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act. … [U]pon 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.

2. Section 1-205(b)(1), G.S., provides in relevant part:

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal there from to the Freedom of Information Commission, by filing a notice of appeal with said commission.

3. Section 1-205(d), G.S., provides in relevant part:

The [FOI] commission shall, subject to the provisions of the Freedom of Information Act promptly review the alleged violation of said Freedom of Information Act and issue an order pertaining to the same. Said commission shall have the power to investigate all alleged violations of said Freedom of Information Act and may for the purpose of investigating any violation hold a hearing, administer oaths, examine witnesses, receive oral and documentary evidence, have the power to subpoena witnesses under procedural rules adopted by the commission to compel

Minutes, Special Meeting, December 23, 2009

Page 5

attendance and to require the production for examination of any books and papers which the commission deems relevant in any matter under investigation or in question.

4. Section 1-240(b), G.S.. provides: “(b) Any member of any public agency who fails to comply with an order of the Freedom of Information Commission shall be guilty of a class B misdemeanor and each occurrence of failure to comply with such order shall constitute a separate offense.”

5. It is concluded that the complainant has a right to file a complaint with the Commission under §1-206(b)(1), G.S., to have that complaint fully investigated and heard according to the provisions of §1-205(d), G.S., and to rely on the Commission’s powers to issue orders in connection with such investigation and hearing, according to the provisions of §1-205(d), G.S., and §1-240(b), G.S.

6. It is found that the respondents have refused to comply with the Commission’s orders to produce the records at issue for in camera inspection, in defiance of §§1-205(d) and 1-240(b), G.S.

7. It is found that the effect of the respondents’ defiance has been to prevent the Commission from fully investigating the complainant’s appeal to the Commission.

8. It is therefore found that the complainant has been denied the right conferred by the FOI Act to file a complaint and have it fully investigated and heard.

9. The grounds offered by the respondents for refusing to submit the records at issue are that the Commission will not protect the confidentiality of the records, that it would be unduly burdensome to provide the records in camera, and that the Commission lacks jurisdiction to issue an order for in camera inspection.

10. Furthermore, at the October 30, 2009 hearing on this matter, respondents’ counsel stated:

With regard to the other employees, because there is precedent that when those items have been given in the past there have been occasions where there has been a release of the information that—even that was redacted, we will not be providing redacted information to this commission with regard to all of the other employees. That will not be complied with. [Transcript, p. 14]

11. It is found that the respondents’ grounds are without any basis in law or fact.

Minutes, Special Meeting, December 23, 2009

Page 6

12. In considering whether, in its discretion, to impose a civil penalty, and in what amount, the Commission finds that the actions of the respondents were a deliberate and flagrant violation of the Commission’s order to produce the records for an in camera review, which precluded the Commission from considering the content of the records claimed to be exempt.

13. Moreover, the Commission finds that the actions of the respondents are direct challenge to the very powers and jurisdiction of the FOI Commission, a challenge without basis in law or fact. Instead of providing the Commission with the evidence it needs to make a fully informed decision, the respondents have instead essentially asserted that it is entirely within their discretion whether to respond to the Commission’s order and subpoena, and further entirely within their discretion whether to provide the complainant access to the requested records.

14. The Commission therefore concludes that such actions would ordinarily require the imposition of the maximum civil penalty allowed by law.

15. It is found, however, that the respondent Ellis is the only individually named party to the complaint, that she has been given an opportunity to be heard at a hearing conducted in accordance with §§4-176e to 4-184, G.S., and that she is not the official directly responsible for the denial. The Commission therefore declines to impose a civil penalty.

16. Nonetheless, the Commission condemns in most extreme terms the conduct of the respondents in defying the authority of the Commission as an administrative tribunal.