20100922MRM

TO: Freedom of Information Commission

FROM: Thomas A. Hennick

RE: Minutes of the Commission’s regular meeting of September 22, 2010

A regular meeting of the Freedom of Information Commission was held on September 22, 2010, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:08 p.m. with the following Commissioners present:

Commissioner Andrew J. O’Keefe, presiding

Commissioner Sherman D. London

Commissioner Norma E. Riess (participated via speakerphone)

Commissioner Owen P. Eagan

Commissioner Amy J. LiVolsi

Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, Lisa F. Siegel, Kathleen K. Ross, 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 8, 2010 and the minutes of the Commission’s special meeting of September 14, 2010.

Docket #FIC 2010-030 Bryant Rollins v. Freedom of Information Officer, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction

Bryant Rollins participated via speakerphone. Attorney Nicole Anker appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2010-283 Bryant K. Rollins v. Joan Ellis, Freedom of Information Officer, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction

Minutes, Regular Meeting, September 22, 2010

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Docket #FIC 2009-564 David Cummings v. Director, Human Resources Management Unit, State of Connecticut, Judicial Branch; and State of Connecticut, Judicial Branch

David Cummings appeared on his own behalf. Attorney Martin Libbin 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 2009-572 Alexander Wood and the Manchester Journal Inquirer v. State of Connecticut, Citizens Ethics Advisory Board, Office of State Ethics

Alexander Wood appeared on behalf of the complainants. Attorney Barbara Housen appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2009-647 Priscilla Dickman v. Director, State of Connecticut, Office of State Ethics; and State of Connecticut, Office of State Ethics

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-743 Priscilla Dickman v. Director, State of Connecticut, Office of State Ethics; and State of Connecticut, Office of State Ethics

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2009-751 Matthew Kauffman and the Hartford Courant; and Jeffrey B. Cohen and WNPR/Connecticut Public Broadcasting, Inc. v. Daryl K. Roberts, Chief, Police Department, City of Hartford; Police Department, City of Hartford; John Rose, Corporation Counsel, City of Hartford; and City of Hartford

Matthew Kauffman and Jeffrey Cohen appeared on their own behalf. Attorney Henri Alexandre 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.

Minutes, Regular Meeting, September 22, 2010

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Docket #FIC 2009-779 Bradshaw Smith v. Milo Peck, President, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools

Bradshaw Smith appeared on his own behalf. Attorney Gary Brochu appeared on behalf of the respondents. The Hearing Officer’s Report was withdrawn. The proceedings were recorded digitally.

Docket #FIC 2010-241 Steven Edelman v. Jon Berk, Gordon Muir & Foley, Special Counsel to the Town of Windham; and Russell Jarem, Gordon Muir & Foley, Special Counsel to the Town of Windham

Steven Edelman appeared on his own behalf. Attorney Russell Jarem appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2010-274 Michael A. Winkler and the Administrative and Residual Employees Union Local 4200 v. Commissioner, State of Connecticut, Department of Administrative Services; State of Connecticut, Department of Administrative Services; Paul Bilodeau, State of Connecticut, Department of Information Technology, and State of Connecticut, Department of Information Technology

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

The Commissioners voted, 4-0, not to schedule a hearing in Franz Pielmeier v. Chairman, Parks and Recreation Commission, Town of Southbury; and Parks and Recreation Commission, Town of Southbury, Docket #FIC 2010-101. Commissioner LiVolsi recused herself from participating in the matter.

The meeting was adjourned at 4:43 p.m.

______________________

Thomas A. Hennick

*SEE ATTACHED FOR AMENDMENTS

MINREG meeting 09222010/tah/09232010

Minutes, Regular Meeting, September 22, 2010

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AMENDMENTS

Docket #FIC 2009-564 David Cummings v. Director, Human Resources ManagementUnit, State of Connecticut, Judicial Branch; and State of Connecticut, Judicial Branch

The case caption in the matter was amended as follows:

Docket #FIC 2009-564 David Cummings v. [Director, Human Resources ManagementUnit, State of Connecticut, Judicial Branch; and State of Connecticut, Judicial Branch] STATE OF CONNECTICUTJUDICIAL BRANCH, ADMINISTRATIVE SERVICE DIVISION DIRECTOR ROBERT COFFEY, HUMAN RESOURCE MANAGEMENT UNIT

The Hearing Officer’s Report is amended as follows:

16. With regard to the respondents §1-210(b)(3)[(C)](D),G.S., claim of exemption, it is found that the in camera records are records of law enforcement agencies not otherwise available to the public compiled in connection with the detection or investigation of crime.

[17. The respondents argue that disclosure of the information contained in the in camera records, such as the name and/or location of the school where gang activity is taking place, the names of individuals believed to be involved in gang activity and their suspected gang affiliations, and the particular activities taking place at such school, would be detrimental and prejudicial to ongoing efforts to monitor, control and suppress gang activity within the schools and within the city generally, and ultimately, prejudicial to future prosecutions of gang members involved in criminal activity.]

[18. The complainants counter that the respondents may not rely on §1-210(b)(3)(C), G.S., as a basis on which to withhold the records, or portions thereof, because they have not identified a particular prospective law enforcement action to which disclosure of the records at

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issue would be prejudicial. However, based upon the facts and circumstances of this case, it is found that, to the extent that the respondents can demonstrate that disclosure of the records, or portions thereof, would be prejudicial to future, although as yet to be specifically identified, prosecutions of gang members, §1-210(b)(3), G.S., may apply to exempt such records from disclosure.]

[19. With regard to the in camera records, the respondents testified, and it is found that, for example, some gang members do not realize that the police know they are gang affiliated and are being monitored; and that for example, gang members do not know what websites the police monitor for information pertaining to gang related activities and gang membership.]

[20. After careful review of the in camera records, and based upon the particular facts of this case, it is found that disclosure of the portions of the in camera records, identified by the respondents on the index to the in camera records, would interfere with, and be prejudicial to, the respondents’ ongoing efforts to monitor and suppress gang activity within the schools, and within the city generally, and ultimately prejudicial to efforts to prosecute gang members involved criminal activity.]

17. BASED UPON CAREFUL REVIEW OF THE IN CAMERA RECORDS, IT IS FOUND THAT SUCH RECORDS CONSTITUTE INVESTIGATORY TECHNIQUES NOT OTHERWISE KNOWN TO THE GENERAL PUBLIC, WITHIN THE MEANING OF §1-210(B)(3)(D), G.S.

18.[ 21.] Based upon the foregoing, it is found that the following records, or portions thereof, are exempt from disclosure: IC 2009-751-001 through IC 2009-751-036 (all proposed redactions). [1]

19.[22.] It is therefore concluded that the respondents did not violate the FOI Act when they withheld from the complainants the redacted portions of the in camera records, as described in paragraph 18[21], above.

20.[23.] At the hearing in this matter, the complainants asserted that the respondents’ response to their request, described in paragraph 2, above, was not prompt, and, in fact, was intentionally delayed, and that this conduct on the part of the respondents is part of a pattern designed to avoid the government transparency required by the FOI Act. According to the complainants, the respondents could and should have reviewed the requested records at the time they were requested, determined which portions were not exempt from disclosure, and provided them with redacted copies of such records in a more timely fashion.

21.[24.] With regard to such assertions, it is found that the request, described in paragraph 2, above, was received by the respondent Roberts, and that Roberts forwarded such

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request to the respondent Rose, for the purpose of obtaining legal advice with regard to whether the records responsive to such request were exempt from disclosure under the FOI Act.

22.[25.] It is found that the respondent Roberts “had discussions with” the respondent Rose concerning the records. At the hearing in this matter, the respondent Rose testified, and it is also found that the respondent Rose did not personally review, at any time prior to the denial of the request, any of the records responsive to the request, described in paragraph 2, above. However, it is also found that, in an email dated December 7, 2009 to the complainant Cohen, the respondent Rose stated that “I am satisfied that the documents you seek are sensitive police intelligence and/or relate to ongoing investigations and/or are otherwise protected from disclosure by law.”

23.[26.] It is found that, after the discussions described in paragraph 21[24], above, the respondent Roberts made the decision to deny the request, described in paragraph 2, above.

24.[27.] Based upon the foregoing, it is found that the motion to dismiss Corporation Counsel John Rose as a respondent in this matter, previously denied, is hereby granted.

25[28.] With regard to the issue of promptness, the Commission has held that the meaning of the word “promptly” is a particularly fact-based question. In Advisory Opinion #51, In the Matter of a Request for Declaratory Ruling, Third Taxing District of the City of Norwalk, Applicant (Notice of Final Decision dated January 11, 1982), the Commission advised that the word “promptly,” as used in §1-210(a), G.S., means quickly and without undue delay, taking into consideration all of the factors presented by a particular request. The Commission also gave the following guidance:

The Commission believes that timely access to public records by persons seeking them is a fundamental right conferred by the Freedom of Information Act. Providing such access is therefore as much a part of their mission as their other major functions. Although each agency must determine its own set of priorities in dealing with its responsibilities within its limited resources, providing access to public records should be considered as one such priority. Thus, it should take precedence over routine work that has no immediate or pressing deadline.

26.[29.] The advisory opinion goes on to describe some of the factors that should be considered in weighing a request for records against other priorities: the volume of records requested; the time and personnel required to comply with a request; the time by which the person requesting records needs them; the time constraints under which the agency must complete its other work; the importance of the records to the requester, if ascertainable; and the

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importance to the public of completing the other agency business without the loss of the personnel time involved in complying with the request.

27.[30.] It is found that the respondents offered no explanation at the hearing as to why it took them approximately six weeks to respond to the complainants’ request, described in paragraph 2, above, with a blanket denial. It is found that the failure to review the records to determine whether such records could have been redacted and provided to the complainants at the time such records were requested, resulted in an additional four month delay in access to those portions of such records for which no exemption was claimed.

28.[31.] It is found that, based upon the foregoing, the respondents violated the promptness provisions of §§1-212(a) and 1-210(a), G.S.

29.[32.] With regard to the complainants’ request for civil penalties against the only remaining individual respondent, Roberts, the Commission declines to impose civil penalties, based upon the facts and circumstances of this case.

[1]Because of the finding that the in camera records, or portions thereof, are exempt pursuant to §1-210(b)(3), G.S., the Commission need not consider the respondents’ remaining claims of exemption.