FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
Docket #FIC 2008-546
Town of Old Saybrook,
|Respondent||August 12, 2009|
The above-captioned matter was heard as a contested case on January 20, 2009, 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. By letter of complaint filed August 19, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide “a reasonable explanation or rationale” as to why it dismissed her complaint against a member of the Old Saybrook Police Commission alleging a conflict of interest.
3. It is found that the complainant filed a complaint with the respondent on July 10, 2008, alleging that a member of the Old Saybrook Police Commission violated the conflict of interest provisions of the Old Saybrook Code of Ethics by failing to recuse herself from a vote on the promotion of a police lieutenant that she had previously represented in an application for sub-development in the town of Old Saybrook in 2007.
4. It is found that the respondent met on August 12, 2008 and determined that there was no probable cause that a violation had occurred, and dismissed the complaint.
5. It is found that the respondent notified the complainant of its decision by letter dated August 14, 2008.
6. Section 1-200(5), G.S., provides:
“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.
7. Section 1-210(a), G.S., provides 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. …
8. It is concluded that the records of the respondent’s investigation are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
9. Section 1-82a, G.S., provides in relevant part
(a) Unless the [state ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent….
(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.
(c) Not later than three business days after the termination of the investigation, the commission shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The commission shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.
(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its finding and a summary of its reasons therefor. [Emphasis added.]
10. Section 7-148h, G.S., provides in relevant part:
(a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause…. [Emphasis added.]
11. It is found that §§1-82a(d) and 7-148h, G.S., apply by their express terms to exempt from disclosure the record of the respondent’s investigation.
12. The complainant did not allege that she requested, and was refused, records of the respondent’s investigation into her complaint. Rather, her allegation is that the August 14, 2008 letter from the respondent to her informing her that the complaint was dismissed was a single piece of paper that did not explain the decision or the evidence on which it was based.
13. The Commission understands how the complainant might be frustrated by the confidentiality surrounding the investigation of ethics complaints that result in a finding of no probable cause. The statutory scheme does not provide much satisfaction to the complainant, who cannot see the evidence on which the respondent reached its decision, or know if there was any such evidence, or see the analysis that the respondent used to reach its conclusion. However, this lack of transparency reflects the will of the legislature, and its decision that the privacy and reputational interests of the person against whom an ethics complaint is made outweigh the interest of the public and the complainant in knowing how an ethics commission reaches its conclusions, in the event a complaint is dismissed for lack of reasonable cause.
14. Applying the law to the facts of this case, it is concluded that the respondent did not violate the FOI Act as alleged.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 12, 2009.
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:
2 Tudor Court West
Old Saybrook, CT 06475
Town of Old Saybrook
c/o Michael E. Cronin, Jr., Esq.
201 Main Street
PO Box 454
Old Saybrook, CT 06475
Petrea A. Jones
Acting Clerk of the Commission