OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|Rebecca L. Johnson,|
|against||Docket #FIC 2006-664|
State of Connecticut,
Department of Correction,
|Respondent||November 14, 2007|
The above-captioned matter was heard as a contested case on April 16, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. It is found that, by letter dated December 4, 2006, the complainant requested from the respondent copies of seven categories of the following records:
“Any and all documents and/or records” in any form “pertaining to any disciplinary, employment, employments benefits, or other personnel issue concerning or referencing Rebecca L. Johnson individually or” … “as one of the so called ‘CHRO 3’ as it relates to her employment with State of Connecticut Commission on Human Rights & Opportunities.”
3. It is also found that in the complainant’s December 4, 2006 letter, described in paragraph 2, above, she requested that the respondent provide her or her counsel with timely notice as to when the respondent was planning on discussing matters concerning the complainant or litigation involving the complainant, and whether such discussions were intended to take place in the public portion of the respondent’s meetings or during the executive session portion of such meetings.
4. By letter dated December 13, 2006 and filed December 14, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide copies of the records described in paragraph 2, above. The complainant also alleged that the respondent has denied her access to portions of the Commission on Human Rights and Opportunities’ (“CHRO”) regular meetings, at which the complainant’s “employment situation and related disciplinary issues” were discussed in executive session. The complaint did not specify the dates of any such meetings.
5. Section §1-200(5), G.S., provides in relevant part that:
“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
6. 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 … receive a copy of such records in accordance with section 1-212.
7. Section 1-212(a), G.S., states in relevant part:
Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.
8. It is found that, to the extent the respondent maintains records that contain the requested information described in paragraph 2, above, such records are public records within the meaning of §1-210(a), G.S.
9. At the hearing on this matter, the complainant indicated she had not received any of the documents she believes would be responsive to her request described in paragraph 2, above, including documents concerning the performance evaluation of R. Hamisi Ingram.
10. Before the hearing on this matter, the respondent claimed that the requested records were exempt from disclosure pursuant to §§1-210(b)(4), G.S. However, at the hearing on this matter, the respondent agreed to disclose all records related to the complainant except documents concerning the performance evaluation of R. Hamisi Ingram.
11. Section 1-210(b)(4), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:
records pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled . . . .
12. Section 1-200(8), G.S., defines a pending claim as:
a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
13. Section 1-200(9), G.S., defines pending litigation as:
(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency's consideration of action to enforce or implement legal relief or a legal right.
14. It is found that the respondent failed to prove that the evaluation described in paragraph 10, above, constituted “strategy and negotiations with respect to pending claims or pending litigation . . . .” within the meaning of §1-210(b)(4), G.S.
15. It is further found that the respondent failed to prove that any of the requested records are exempt from mandatory disclosure pursuant to §1-210(b)(4), G.S.
16. It is concluded, therefore, that the respondent violated §§1-210(a) and 1-212(a), G.S., when he failed to promptly provide the complainant with a copy of the requested records, including the record described in paragraph 10, above, as alleged in the complaint.
17. With respect to the complainant’s allegation related to meetings, as described in paragraph 4, above, the complainant alleged at the hearing on this matter that the respondent and commissioners of the respondent met in executive session during regular meetings of the respondent and discussed employment matters concerning the complainant or litigation involving the complainant, without giving the complainant timely notice of such discussions. The complainant did not testify about specific dates of such alleged discussions.
18. Section 1-206(b)(1), G. S., provides in relevant part that:
[a]ny 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 [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held….
19. At the hearing in this matter, the complainant contended that she did not became aware of the alleged discussions in executive session described in paragraph 4, above, until about December 2006. Specifically, the complainant contended that she did not have notice of the alleged discussions in executive session until reading the transcript of a May 23, 2006 legislative hearing in which two CHRO commissioners testified. The complainant contended that, after reading such testimony, she conducted subsequent research into the agendas and the minutes of the respondent’s meetings.
20. It is found, however, that the complainant was in attendance at the May 23, 2006 legislative hearing described in paragraph 19, above, and indeed presented testimony at such hearing.
21. It is found that the complainant received notice in fact of the alleged meetings described in paragraph 4, above, on May 23, 2006, which was the date of the public legislative hearing, described in paragraphs 19 and 20, above.
22. It is found that the complaint in this matter was filed more than thirty days after the complainant received notice in fact of the alleged secret and unnoticed meetings, within the meaning of §1-206(b)(1), G.S. Accordingly, it is concluded that the Commission lacks subject matter jurisdiction over the meeting allegation set forth in the complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. If he has not already done so, the respondent shall forthwith provide the complainant with a copy of the requested records described in paragraph 2 of the findings, above, at no cost.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 2007.
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:
Director, State of Connecticut,
Commission on Human Rights
c/o Robert J. Brothers, Jr., Esq.
Commission on Human Rights
21 Grand Street
Hartford, CT 06106
Petrea A. Jones
Acting Clerk of the Commission