FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Connecticut Coalition Against Millstone,  
  Complainant  
  against   Docket #FIC 2005-038

Paul Eccard, First Selectman,

Town of Waterford; and

Commissioner, Department of Public Works,

State of Connecticut,

 
  Respondents December 14, 2005
       

  

            The above-captioned matter was initially consolidated for hearing with Docket #s FIC 2005-049, Connecticut Coalition Against Millstone v. Edward Wilds, Director, Radiation Unit, State of Connecticut, Department of Environmental Protection, and FIC 2005-064, Connecticut Coalition Against Millstone v. Richard Blumenthal, Attorney General, State of Connecticut. The above-captioned matter was heard as a contested case at a consolidated hearing on June 1, 2005, and at a hearing without the companion dockets on June 16, 2005. At both hearings, the complainant and the respondent First Selectman appeared and presented testimony, exhibits and argument on the complaint.

 

At the June 16, 2005 hearing, the respondent First Selectman claimed the exemption at 1-210(b)(19), G.S. Accordingly, in accord with the requirements of 1-210(d), G.S., the respondent Commissioner of Public Works was joined as a party, and the case caption above has been amended and restated. The respondent Commissioner of Public Works and the complainant appeared at a continued hearing on September 13, 2005, and presented further testimony and argument on the complaint. 

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.  The respondents are public agencies within the meaning of 1-200(1)(A), G.S.

 

2.  By letter dated January 17, 2005, the complainant made a request to the respondent First Selectman to “provide” all records maintained by the Town of Waterford “pertaining to the fire at the Millstone Nuclear Power Station on January 14, 2005 and its aftermath”, including but not limited to records addressing nineteen different enumerated subjects (the “requested records” or sometimes “the records”).

 

3.  By letter dated January 18, 2005, counsel to the respondent First Selectman acknowledged the complainant’s request, indicating that the respondent First Selectman would copy all non-exempt requested records and charge the complainant a “reasonable cost”.

 

4.  By letter dated January 25, 2005 and filed with the Freedom of Information Commission (“Commission”) on January 28, 2005, the complainant appealed to the Commission, alleging that the respondent First Selectman had provided only a one page incident report form, and had willfully denied complainant’s request by failing to provide any additional records.

 

5.  It is found that, by letter dated January 25, 2005, counsel for the respondent First Selectman provided to the complainant an item by item discussion of all nineteen subjects enumerated in the January 17, 2005 request (except item three), together with various records, including the CAD Operations Report, the Incident Report Narrative, the Incident Report Form (IRF), and the monthly log sheet of calls from the respondent First Selectman’s office. 

 

 6.  It is found that, initially by a facsimile memorandum dated January 31, 2005 with nineteen pages attached, and then more formally by letter dated February 4, 2005, counsel for the respondent First Selectman notified the respondent Commissioner of Public Works that he had received the complainant’s request. Counsel for the respondent First Selectman also sought a determination from the respondent Commissioner whether the requested records, not yet disclosed, “should or should not be disclosed pursuant to C.G.S. 1-210(b)(19).”  

 

7.  It is found that, following a meeting between counsel for the respondent First Selectman and counsel for the respondent Commissioner of Public Works, by letter dated February 16, 2005, counsel for the respondent Commissioner of Public Works informed counsel for respondent First Selectman that “any reference in the record to the movement or assignment of the police or fire personnel should be redacted before disclosure.”

 

8.  It is further found that, by letter dated February 22, 2005, counsel to the respondent First Selectman provided the complainant with the February 16, 2005 letter he received from counsel to the respondent Commissioner of Public Works, together with an update concerning his efforts to determine which records were exempt from disclosure. Counsel to the respondent First Selectman also provided the complainant with a copy of the fire inspector’s report, which addressed item three of the January 17, 2005 request (see paragraph 5, above). Finally, by letter dated February 28, 2005, counsel to the respondent First Selectman provided the complainant with an explanatory cover letter and, as enclosures, additional records, including a letter, some redacted forms and a policy statement.

 

 9.  At the hearing, the respondent First Selectman submitted twenty-three records for an in camera inspection, which has now been performed. Such records are hereby identified as IC-2005-038-1 through IC-2005-038-23.

 

10.  It is found that the in camera records IC-2005-038-1 through IC-2005-038-23 all contain information concerning  “the movement or assignment of the police or fire personnel”. Moreover, any persons with criminal intent, who knew the size of emergency personnel units, the individuals involved and where the units would muster, would be able to coordinate an attack on the emergency personnel and counter the response in a future emergency. These concerns extend to IC-2005-038-20, described in the public index as “Waterford Police Payroll Record”, and discussed in some detail but not disclosed at the hearing. At the hearing, there was testimony that secondary explosive devices had, in fact, been used to attack emergency personnel where such personnel gathered in response to a preceding attack on an abortion clinic in Birmingham, Alabama.

 

11.  Section 1-210(a), G.S., states in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.

 

12.  Section 1-210(b)(19), G.S., states in relevant part:

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of:

 …..

(19) Records when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, any government-owned or leased institution or facility or any fixture or appurtenance and equipment attached to, or contained in, such institution or facility, except that such records shall be disclosed to a law enforcement agency upon the request of the law enforcement agency.  Such reasonable grounds shall be determined (A) with respect to records concerning any executive branch agency of the state or any municipal, district or regional agency, by the Commissioner of Public Works, after consultation with the chief executive officer of the agency; (B) with respect to records concerning Judicial Department facilities, by the Chief Court Administrator; and (C) with respect to records concerning the Legislative Department, by the executive director of the Joint Committee on Legislative Management.  As used in this section, “government-owned or leased institution or facility includes, but is not limited to, an institution or facility owned or leased by a public service company, as defined in section 16-1, a certified telecommunications provider, as defined in section 16-1, or a municipal utility that furnishes electric, gas or water service, but does not include an institution or facility owned or leased by the federal government, and “chief executive officer” includes, but is not limited to, an agency head, department head, executive director or chief executive officer. Such records include, but are not limited to:

…     

(vii) Logs or other documents that contain information on the movement or assignment of security personnel at government-owned or leased institutions or facilities; and

(viii) Emergency plans and emergency recovery or response plans;  (emphasis added)

13.  Section 1-210(d), G.S., states in relevant part:

 

Whenever a public agency, except the Judicial Department or Legislative Department, receives a request from any person for disclosure of any records described in subdivision (19) of subsection (b) of this section under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Public Works of such request, in the manner prescribed by the commissioner, before complying with the request as required by the Freedom of Information Act.  If the commissioner, after consultation with the chief executive officer of the applicable agency, believes the requested record is exempt from disclosure pursuant to subdivision (19) of subsection (b) of this section, the commissioner may direct the agency to withhold such record from such person. In any appeal brought under the provisions of section 1-206 of the Freedom of Information Act for denial of access to records for any of the reasons described in subdivision (19) of subsection (b) of this section, such appeal shall be against the Commissioner of Public Works, exclusively…. (emphasis added)

 

14.  Based upon the findings in paragraph 6, above, it is concluded that, as required by 1-210(d), G.S., the respondent First Selectman promptly notified the respondent Commissioner of Public Works that he had received a request for “records described” in 1-210(b)(19), G.S.

 

15.  It is further concluded that the respondent First Selectman promptly provided all requested records, except those subject to a claim of exemption pursuant to 1-210(b)(19), G.S. Particularly given the nineteen different subjects of the request, and the additional procedural requirements of 1-210(d), G.S., the series of disclosures and related actions of counsel for the respondent First Selectman constituted a nearly flawless model of Freedom of Information Act compliance.

 

16.  It is also concluded that the General Assembly, in adopting 1-210(d), G.S., intended that the respondent Commissioner of Public Works would be the respondent in appeals to the Commission where an exemption was claimed pursuant to 1-210(b)(19), G.S. Accordingly, the respondent Commissioner of Public Works is the exclusive respondent with reference to the in camera records IC-2005-038-1 through IC-2005-038-23.

 

17.  Based upon review of the in camera documents, it is concluded that such records are exempt from mandatory disclosure pursuant to 1-210(b)(19), G.S., since the respondent commissioner did have reasonable grounds to believe that disclosure of such records “may result in a safety risk, including the risk of harm to any person”. The persons at risk of harm include all persons now or in the future who are: a) police and fire personnel who respond to incidents at the Millstone Nuclear Power Station; b) employees of the Millstone Nuclear Power Station; and c) anyone else in close proximity to the Millstone Nuclear Power Station. Moreover, many of the in camera records IC-2005-038-1 through IC-2005-038-23 disclose aspects of “emergency recovery or response plans” which, at 1-210(b)(19) (viii), G.S. (emphasis added), are included in the enumeration of records that (emphasis added), may be exempt from disclosure pursuant to 1-210(b)(19), G.S.   

      

18.  It is concluded that, because the respondent Commissioner of Public Works did have reasonable grounds to believe that disclosure of the in camera records IC-2005-038-1 through IC-2005-038-23 “may result in a safety risk, including the risk of harm to any person” (emphasis added), it is not necessary to determine the question of specialized state and federal utility law of whether the Millstone Power Station is a “facility owned or leased by a public service company, as defined in section 16-1” (emphasis added), and as that term is used in 1-210(b)(19), G.S. Indeed, a preliminary review of 16-1(4), G.S., and the federal stature it references, 15 U.S.C. 79z-5a, indicate that this question of utility law could not be determined without information concerning determinations by the Federal Energy Regulatory Commission, which are not in the record of this docket.   

 

19.  It is also concluded, however, that, whether or not the Millstone Power Station is “owned or leased by a public service company” as that term is used in 1-210(b)(19), G.S., certainly the General Assembly did express at 1-210(b)(19)(vii), G.S. (emphasis added), specific concern about disclosing the “movement or assignment of security personnel” at certain utility facilities. The directive from counsel to the respondent Commissioner, detailed at paragraph 7, above, closely tracked the language of the General Assembly’s policy concern.

 

20.  It is finally concluded that neither the respondent First Selectman nor the respondent Commissioner of Public Works violated 1-210(a), G.S., as alleged in the complaint.

 

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

 

1.      The complaint is hereby dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2005.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission


PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Connecticut Coalition Against Millstone 

c/o Nancy Burton

147 Cross Highway

Redding Ridge, CT 06876

 

Paul Eccard, First Selectman,

Town of Waterford

c/o Nicholas F. Kepple, Esq.

Box 3A Anguilla Park

20 South Anguilla Road

Pawcatuck, CT 06379

 

Commissioner, Department of Public Works,

State of Connecticut

c/o Jeffrey R. Beckham, Esq.

Department of Public Works

165 Capitol Avenue

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-038FD/paj/12/20/2005