20110713MRM

TO: Freedom of Information Commission

FROM: Thomas A. Hennick

RE: Minutes of the Commission’s regular meeting of July 13, 2011

A regular meeting of the Freedom of Information Commission was held on July 13, 2011, 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 Norma E. Riess, presiding

Commissioner Sherman D. London

Commissioner Owen P. Eagan

Commissioner Amy J. LiVolsi

Commissioner Jay Shaw

Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Victor R. Perpetua, Tracie C. Brown, Gregory F. Daniels, Kathleen R. Ross, Lisa F. Siegel, Valicia D. Harmon, Paula S. Pearlman, 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 June 22, 2011.

Executive Director Colleen M. Murphy administered the oath of office to new commissioner Jay Shaw.

Docket #FIC 2010-508 Robin Elliott v. Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Carey

Robin Elliott participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2010-510 Omar J. Miller v. Rikel Lightner, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

Omar Miller participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Minutes, Regular Meeting, July 13, 2011

Page 2

Docket #FIC 2010-511 Omar J. Miller v. Rikel Lightner, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

Omar Miller participated via speakerphone. 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 2008-163 Bill Kaempffer and the New Haven Register v. Chief, Police Department, City of New Haven

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

Docket #FIC 2010-529 Meg Casasanta v. Superintendent of Schools, Newington Public Schools

Attorney Robert Mihalik appeared on behalf of the complainant. Attorney Thomas Mooney appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2010-549 Joe Wojtas and the New London Day v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety

Joe Wojtas appeared on his own behalf. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2010-608 Wendy Rubin v. Christopher Banach, Tony Boni, John Bottalico, Thomas Bowen, Myra Cohen, Michael Lenares, David Nagel, Kristine Nasinnyk, and Jeff Wright, as members, Town Council, Town of Newington; and Town Council, Town of Newington

The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*

Minutes, Regular Meeting, July 13, 2011

Page 3

Docket #FIC 2010-611 Christian Lund v. Police Commission, Town of Wilton

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

Docket #FIC 2010-625 Angela Sarahina v. Town Manager, Town of Hebron; and Town of Hebron

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

Docket #FIC 2010-630 Carol Lambiase and the Connecticut Independent Labor Union Local 222 v. City Manager, City of Norwich; and City of Norwich

Peter Nolton appeared on behalf of the complainants. Attorney Michael Rose appeared on behalf of the intervenor Jennifer Gottlieb. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners voted, 4-1, to adopt the Hearing Officer’s Report as amended.* Commissioner Riess voted against adoption. The proceedings were recorded digitally.

Docket #FIC 2010-696 Wesley S. Lubee, Jr. v. Town Council, Town of Wallingford

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

Docket #FIC 2010-748 Mark Cugini v. Commissioner, State of Connecticut, Department of Public Safety; Seth Mancini, Commissioner's Staff, 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, July 13, 2011

Page 4

Docket #FIC 2010-766 Mary C. O'Reilly v. Chairman, Board of Education, Regional School District 1; Personnel Committee, Board of Education, Regional School District 1; and Board of Education, Regional School District 1

Mary C. O’Reilly appeared on her own behalf. Attorney Gary Brochu 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.*

Valicia D. Harmon reported on the Superior Court Memorandum of Decision in University of Connecticut Health Center v. Freedom of Information Commission et al. dated June 28, 2011.

Victor R. Perpetua reported on the Superior Court Memorandum of Decision in Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, dated June 24, 2011.

Lisa F. Siegel reported on the Supreme Court Supreme Court decision in Commissioner of Public Safety et al. v. Freedom of Information Commission et al, Officially released June 28, 2011.

Victor R. Perpetua reported on pending appeals.

Colleen M. Murphy reported on legislation.

The meeting was adjourned at 4:30 p.m.

_________________

Thomas A. Hennick

*SEE ATTACHED FOR AMENDMENTS

MINREGmeeting 07132011/tah/07142011

Minutes, Regular Meeting, July 13, 2011

Page 5

AMENDMENTS

The Hearing Officer’s Report is amended as follows:

The body of the Hearing Officer’s Report is deleted and the following is inserted:

DURING THE COMMISSION’S REGULAR MEETING ON JULY 13, 2011, THE COMPLAINANT DECLARED THAT HE WAS WITHDRAWING HIS COMPLAINT IN THIS MATTER.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. BASED ON THE WITHDRAWAL OF THE COMPLAINT, THE COMPLAINT IS HEREBY DISMISSED. [1. The complaint is hereby dismissed.]

The Hearing Officer’s Report is amended as follows:

The body of the Hearing Officer’s Report is deleted and the following is inserted:

ON JUNE 13, 2011, THE COMPLAINANT FILED WITH THE COMMISSION A WITHDRAWAL OF THE COMPLAINT IN THIS MATTER. THE COMMISSION TAKES ADMINISTRATIVE NOTICE OF SUCH WITHDRAWAL.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. [Henceforth, the respondents shall strictly comply with §§1-225(a) and 1-200(6), G.S.] BASED UPON THE WITHDRAWAL OF THE COMPLAINT, THE CASE IS HEREBY DISMISSED.

Minutes, Regular Meeting, July 13, 2011

Page 6

Docket #FIC 2010-630 Carol Lambiase and the Connecticut Independent Labor Union Local 222 v. City Manager, City of Norwich; and City of Norwich

The Hearing Officer’s Report is amended as follows:

[23. Assuming without finding that the records requested by the complainants satisfy the requirements of §52-146q, G.S., and trigger the social worker’s duty to maintain confidentiality, it is concluded that the statute does not create a similar duty for the respondents, who are neither social workers nor agents of a social worker.

[24. It is concluded, therefore, that §52-146q, G.S., does not prevent the respondents from disclosing the records requested by the complainants.]

23. IT IS FOUND THAT THE INTERVENOR COMMUNICATED WITH THE SOCIAL WORKER BECAUSE HER EMPLOYER REQUIRED HER PARTICIPATION. IT IS FOUND THAT THE INTERVENOR DID NOT CONSULT THE SOCIAL WORKER FOR PURPOSES OF EVALUATION OR TREATMENT FOR MENTAL HEALTH ISSUES, WITHIN THE MEANING OF §52-146Q(A), G.S. IT IS FOUND, ALSO, THAT THE RECORDS REQUESTED BY THE COMPLAINANTS REFLECT RECOMMENDATIONS AS TO RESOLUTION OF THE RESPONDENTS’ EMPLOYEE RELATIONS DIFFICULTIES, AND DO NOT REFLECT INTIMATE DETAILS OF THE INTERVENOR’S LIFE AS MAY BE EXPECTED FROM A CONSULTATION FOR EVALUATION OR TREATMENT FOR MENTAL HEALTH ISSUES.

24. IT IS FOUND, THEREFORE, THAT THE RECORDS REQUESTED BY THE COMPLAINANTS ARE NOT “COMMUNICATIONS AND RECORDS … RELATING TO THE EVALUATION OR TREATMENT OF A PERSON,” WITHIN THE MEANING OF §52-146Q, G.S.

25. IT IS CONCLUDED, ACCORDINGLY, THAT SUCH RECORDS ARE NOT CONFIDENTIAL PURSUANT TO §52-146Q(B), G.S., AND THE STATUTE DOES NOT PROVIDE A BASIS FOR THE RESPONDENTS TO WITHHOLD THE RECORDS FROM THE COMPLAINANTS.

[25.] 26. The respondents claim that §1-210(b)(2), G.S., exempts the records from mandatory disclosure.

[26.] 27. Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy. . . .”

Minutes, Regular Meeting, July 13, 2011

Page 7

[27.] 28. The Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993). The claimant must first establish that the files in question are personnel, medical or similar files. Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy. In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that the disclosure of such information is highly offensive to a reasonable person. The Commission takes administrative notice of the multitude of court rulings, commission final decisions,1 and instances of advice given by the Commission staff members,2 which have relied upon the Perkins test, since its release in 1993.

[28.] 29. Upon careful inspection of IC-2010-630-1 through IC-2010-630-5, it is found that disclosure of the records requested by the complainants – i.e., the preliminary and final recommendations – are personnel records, within the meaning of §1-210(b)(2), G.S.

[29.] 30. It is found that such records pertain to legitimate matters of public concern, such as the efficacy of the private consulting group who performed the intervention services for the respondents and the steps recommended to the respondents to avoid workplace problems in the future.

[30.] 31. It is also found that disclosure of such records would not be highly offensive to a reasonable person. As indicated in paragraph 15, above, the records neither identify any employee by name nor do they reveal intimate or non-work-related matters.

[31.] 32. It is concluded that disclosure of the records requested by the complainants would not constitute an invasion of personal privacy, within the meaning of §1-210(b)(2), G.S.

[32.] 33. Accordingly, it is concluded that the respondents violated the FOI Act by withholding the records from the complainants.

36. It is found that such meeting failed to comply with the access requirements of §1-225(a), G.S., in that it was not open to the public and the vote of each member of the respondent committee was not reduced to writing and available to the public within 48 hours. (It is found that although the respondents stated in open session that the vote was 3 to 1, the vote of each member was not reduced to writing and available to the public. [, nor was the identity of the minority voter disclosed.)]