Sec. 1-21j-37. Rules of evidence
The following rules of evidence shall be followed with respect to the admission of evidence in all hearings held under the Freedom of Information Act and chapter 54 of the general statutes:
(a) General. Any oral, documentary or other evidence may be received; but the presiding officer shall, as a matter of policy, exclude irrelevant, immaterial or unduly repetitious evidence. The commission or presiding officer shall give effect to the rules of privilege recognized by law in Connecticut where appropriate to the conduct of the hearing. Subject to these requirements and subject to the right of any party to cross examine, any testimony may be received in written form as herein provided.
(b) Documentary evidence, copies. Documentary evidence may be received at the discretion of the commission or presiding officer in the form of copies or excerpts, if the original is not found readily available. Upon request by any party an opportunity shall be granted to compare the copy with the original, which shall be subject to production by the person offering such copies, within the provisions of section 52-180 of the general statutes.
(c) Cross examination. Cross examination may be conducted as the presiding officer shall find to be required for a full and true disclosure of the facts.
(d) Facts noticed, scope and procedure, commission records. The commission may take administrative notice of judicially cognizable facts, including generally recognized technical or scientific facts within the commission's specialized knowledge and the records, decisions and orders in other commission cases. Parties shall be afforded an opportunity to contest the material so noticed by being notified before or during the hearing, or by an appropriate reference in preliminary reports, proposed final decisions or otherwise of the material noticed. The commission shall nevertheless employ the commission's experience, technical competence, and specialized knowledge in evaluating the evidence presented at the hearing for the purpose of making its finding of facts and arriving at a final decision.
(e) Any testimony or exhibit admitted in evidence in another commission case may be offered as evidence in a subsequent hearing and admitted as an exhibit therein.
(f) In camera inspection. The procedure for an in camera inspection of records shall be as follows:
(1) Any party or intervenor may request an in camera inspection of the records claimed to be exempt from disclosure in a contested case; and the presiding officer or the commission may order such an inspection on request, on such presiding officer's or the commission's own initiative, or on remand by a court.
(2) If an in camera inspection is ordered, the party having custody of the records claimed to be exempt from disclosure shall be required to submit a copy of the records together with an in camera inspection index referencing each record, and each item within each record, claimed to be exempt from disclosure. All parties shall be informed of their rights and obligations under these procedures.
(3) In each case in which an in camera inspection is ordered, the presiding officer, a commissioner or an authorized staff member, shall verify that each record submitted for such inspection has been identified by the party having custody of the record by reference to an individual reference number or numbers prescribed by the commission and included in an accompanying in camera inspection index.
(4) In each case in which an in camera inspection is ordered, an in camera inspection index shall be prepared in triplicate by the party having custody of the records submitted for such inspection on forms which shall be provided or approved by the commission. One part of the form shall be given to the party submitting the records as a receipt, indicating the records and date received and the name of the person authorized to receive and sign for such records on behalf of the commission. The receipt shall also certify that neither the records received for in camera inspection, nor their contents, shall be disclosed to any unauthorized person, except as provided by commission or court order and as provided below. The second part of the form shall be retained by the commission and kept for both inventory and decision-making purposes as part of the secure file in which the subject records themselves are kept. The third part of the form shall be retained by the commission as a public record and kept as part of the public file of the contested case. A copy of the completed index form shall be given to all other parties to the proceedings.
(5) It shall be the responsibility of the party submitting records for in camera inspection to certify that the copies of the records so submitted are true copies of the records at issue in the contested case. It shall also be the responsibility of such party to make available for examination and cross-examination at a commission hearing on the matter the official who issued the certification.
(6) After receiving records submitted for in camera inspection, the authorized person who signed the receipt for them on the index on behalf of the commission shall personally deliver the records for storage in a secure commission file.
(7) Ordinarily only commissioners, the presiding officer, the executive director, the managing director and staff counsel are authorized access to inspect records submitted for in camera inspection. In any particular case, however, the presiding officer or the commission may authorize greater or lesser access to such records and the executive director and managing director may authorize greater or lesser access by commission personnel to such records. All persons having access to the records submitted for in camera inspection shall be identified on the related in camera inspection index.
(8) The copying of records submitted to the commission for in camera inspection shall not be permitted. Likewise, no person authorized access to such records may take any notes making reference to specific information contained in such records and claimed to be exempt from disclosure. References to specific records submitted for in camera inspection, or the contents of such records, in proposed final decisions or final decisions shall be by the assigned reference numbers as endorsed on the records themselves or by reference to generic descriptions or characterizations as set forth in the related in camera inspection index or in other public records.
(9) At commission meetings open to the public, all mention of the specific contents of records submitted for in camera inspection shall be avoided. Mention of specific records submitted for in camera inspection, however, may be made by use of the assigned reference numbers as endorsed on the records themselves or by reference to generic descriptions or characterizations as set forth in the related in camera inspection index or in other public records.
(10) If it proves necessary for the commission to discuss the specific contents of records submitted for in camera inspection at one of its meetings, it shall first convene in executive session, as provided by law. Only commissioners and persons authorized access to the subject records and invited by the commission to present testimony or opinion shall attend the executive session, as provided by law.
(11) Unless a court appeal is filed in a particular contested case, the commission shall disclose on request those records in its possession submitted for in camera inspection and ordered disclosed by the commission in that case (A) after the expiration of forty-five (45) days from the mailing of the notice of final decision, or (B) if a request for reconsideration is received by the commission within such 45-day period, after the expiration of forty-five (45) days from the mailing of the notice denying that request or after the expiration of forty-five (45) days from the mailing of the notice of the final decision issued after reconsideration has been granted, as the case may be. If no court appeal is filed, the records submitted for in camera inspection and ordered disclosed shall be transferred from their secure file to the commission's corresponding public file after the expiration of the applicable time period.
(12) Unless a court appeal is filed, after issuing its final decision in a particular contested case, the commission shall notify the party that submitted records for in camera inspection in writing that it may make appropriate arrangements with the commission staff to take possession of such records after the expiration of the operative time periods set forth in subdivision (11) of this subsection. The party taking possession shall be required to sign a receipt for the records returned. If no arrangements are made for the return of such records, the commission shall cause the records to be destroyed any time after the expiration of the time periods for the retention of contested case evidence in the commission's current schedule for the retention and destruction of records, as approved by the state public records administrator.
(13) If a court appeal is filed in a particular contested case, the commission shall notify in writing all known parties to the appeal that, as part of the commission's record to be delivered to the court, the commission intends to deliver the records submitted for in camera inspection. The notice shall also advise the parties that the commission shall not move the court to seal such records, but that other parties may do so if they desire; and that any party seeking to seal the records should notify the commission of its intent to do so before the date by which the commission must certify the record of its proceedings into court. If notified that a motion to seal shall be made, the commission shall not transfer such records until the court makes its determination on the motion.
(14) Records submitted for in camera inspection which form part of a commission record on appeal shall, until delivered to the reviewing court, continue to be kept in their secure file and separately from the remainder of the record on appeal. When the record on appeal is to be delivered to court, a person authorized access to such records on behalf of the commission shall personally deliver such records to the clerk of the applicable court. If the court has ordered such records sealed, such authorized person shall so notify the clerk on delivery.
(15) Records submitted for in camera inspection, returned to the commission by a court and which records were held by the court to be exempt from disclosure shall be returned to their secure file immediately by a person authorized access to such records on behalf of the commission. Any records submitted for in camera inspection, returned to the commission by a court and held by the court to be disclosable shall be placed in the commission's public files. In either case, the commission shall notify the party that submitted such records for in camera inspection in writing that such party may make appropriate arrangements with the commission staff to take possession of those records or they shall be destroyed as provided in subdivision (12) of this subsection.
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