FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Thomas May,  
  Complainant  
  against   Docket #FIC 2009-394

State of Connecticut,

Division of Public Defender Services,

 
  Respondent June 9, 2010
       

           

The above-captioned matter was heard as a contested case on May 7 and May 17, 2010, at which times the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant, who is incarcerated, appeared via teleconference, pursuant to the January 2004 memorandum of understanding between the Commission and the Department of Correction.  See  Docket No. CV 03-0826293, Anthony Sinchak v. FOIC et al, Superior Court, J.D. of Hartford at Hartford,  Corrected Order dated January 27, 2004 (Sheldon, J.).  The motion of Public Defender Dennis McDonough, the party who is the subject of the files at issue in this matter, to intervene as an interested party, was granted.

 

At the hearing, the respondent and intervenor declined to voluntarily produce for in camera inspection the records at issue in this case.  The parties took the position that they chose to prove their claims of exemption through testimony and other non-exempt exhibits, and therefore the hearing officer did not order them to produce the records at issue.

 

            The respondent did comply with the hearing officer’s order to produce for an in camera inspection its own responses to Mr. May’s complaints about the intervenor public defender, after Mr. May explicitly waived any privilege that attached to those records.  The decision by the hearing officer to accept these records for an in camera, rather than public, inspection should not be inferred to mean that the Commission has made any decision or ruling on whether such records are exempt from disclosure.  The decision by the hearing officer was made purely as an accommodation to the parties in order to expedite his ability to gather evidence and render a timely proposed decision, is confined solely to the facts and circumstances of this case, and is not to be considered a procedural precedent in any way.

 

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

 

1.  The respondent and the intervenor maintain that the respondent is not a public agency for purposes of the Freedom of Information (“FOI”) Act, because, they argue, the respondent is part of the judicial branch and the requested records do not pertain to an administrative function. 

 

2.  Section 1-200(1)(A), G.S., defines “public agency” to mean, in relevant part:  “… any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions.”

 

3.  Section 51-1a(a), G.S., provides in relevant part: “The Judicial Department of the state shall consist of … the Public Defender Services Commission.”

 

4.  It is found that the respondent is not an executive or legislative body.

 

5.  It is found that the budget for the Public Defender Services commission is contained within the Judicial Branch budget appropriation.

 

6.  It is found that union employees of the respondent, such as social workers or clerical workers, are in the same unions as judicial branch employees and have a representative to negotiate with the judicial branch regarding collective bargaining and conditions of employment.

 

7.  The Commission takes administrative notice of the fact that the respondent is contained in the section captioned “Judicial” in the State “Blue Book,” Register and Manual for 2009, and that the email addresses of all public defenders end with the domain “jud.ct.gov,” a domain administered by the judicial branch.

 

8.  It is therefore concluded that the respondent is a body of the judicial branch, and is therefore a public agency only with respect to its administrative functions.

 

9.  By letter dated May 13, 2009, the complainant requested from the respondent, among other records no longer at issue, “Any and all complaints filed against Attorney Dennis McDonough, special public defender.”

 

10.  By letter dated June 22, 2009, the respondent denied the complainant’s request for complaints against Attorney McDonough, except the complaint that the complainant had himself filed with the respondent.   (Numerous other records were provided to the complainant, and the respondent was at all times cooperative with and helpful to the complainants’ requests, except for denying access to records it believed to be clearly exempt from disclosure.)

 

11.  By letter of complaint filed July 7, 2009, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying his request for public records.

 

            12.  It is found that the respondent maintains an undisclosed number of complaints against Attorney McDonough, including one made by the complainant.  The respondent refused to provide those records to the Commission for an in camera inspection, except for the complainant’s own complaint.  The respondent also refused to disclose the number of complaints against Attorney McDonough. 

 

13.  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.

 

14.  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 … receive a copy of such records in accordance with section 1-212. 

 

15.  It is found that the requested complaints, in addition to being contained in the client’s file that is maintained by the intervenor, are also separately kept on file by the Office of the Chief Public Defender, and are used, received and retained by the respondent.

 

16.  It is also found that the requested complaints pertain to the conduct of the public’s business, both because the respondent conducts the public’s business in reviewing complaints about the attorneys assigned to public defenders, and because, as described in paragraphs 23 -39 of the findings, below, the records are used by the respondent in decisions to assign, re-assign, and employ individuals as public defenders.

 

17. It is therefore concluded that the requested records are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

18.  The Commission notes that its  findings and conclusion about the actual contents of the requested letters has been limited by the respondent’s unwillingness to provide the records for an in camera inspection, and by the fact that the respondent and intervenor offered only testimony about letters of complaint generally, not about the actual records at issue.  No witness had reviewed the actual contents of the requested records, at least not since initially receiving them in the ordinary course of business from the clients, and no witness recalled or could testify as to the actual content of the requested records.  However, the Commission is obligated to decide this matter based on the record presented by the parties.

 

19.  The only complaints against Attorney McDonough offered by the respondent into evidence were the complainant’s own September 14 and October 11, 2007 complaints concerning Attorney McDonough.  These two letters, and additional letters from Mr. May submitted together with the Division’s responses to them for an in camera inspection, are the only complaints in evidence, and there is no evidence about the specific contents of any of the other complaints.

 

20.  The September 14, 2007 letter complained about Mr. May’s lack of representation by Attorney McDonough, referred to Mr. May’s previous complaints with the respondent’s Habeas Unit, asked who was responsible to see that indigent individuals got proper representation, asked for copies of complaints filed by other indigent prisoners for not getting proper representation, and asked for records about his own case, including evidentiary records, interview notes, and motions filed on his behalf.

 

21.  The October 11, 2007 letter asked to whom Attorney McDonough was accountable, alleged misconduct by Attorney McDonough in his representation of the complainant, asked what the respondent does for clients like the complainant, and made a FOI request for his previous attorney’s job description and title, evidentiary records pertaining to his arrest, and copies of the respondent’s policy on indigence.

 

22.  The respondent and the intervenor contend that the records of complaint by other clients requested by Mr. May do not reflect the respondent’s administrative function within the meaning of 1-200(1)(A), that they are exempt from disclosure pursuant to Rule 1.6 of the Rules of Professional Conduct, that they are exempt from disclosure pursuant to 1-210(b)(10), G.S.,  as privileged communications, and that they are exempt from disclosure under 1-210(b)(2), G.S., because disclosure would constitute an invasion of personal privacy.

 

23.  In Clerk v. FOIC, 278 Conn. 28 (2005), our Supreme Court concluded that, for purposes of the FOI Act, “the judicial branch’s administrative functions consist of activities relating to its budget, personnel, facilities and physical operations and that records unrelated to those activities are exempt.”  [Emphasis added.]  Id. at 53.

 

24.  The intervenor does not contest that the requested records are “personnel or … similar files” within the meaning of 1-210(b)(2), G.S., which permits an agency to withhold such files if disclosure would constitute an invasion of privacy.  In this regard, the intervenor’s position is consistent with Connecticut Alcohol and Drug Abuse Com'n v. Freedom of Information Com'n, 233 Conn. 28, 40-41 (1995):

   This case presents the question of when a file is "similar in nature" to personnel or medical files. We conclude that such a determination requires a functional review of the documents at issue. Just as a "medical" file of an individual has as one of its principal purposes the furnishing of information for making medical decisions regarding that individual, a "personnel" file has as one of its principal purposes the furnishing of information for making personnel decisions regarding the individual involved. If a document or file contains material, therefore, that under ordinary circumstances would be pertinent to traditional personnel decisions, it is "similar" to a personnel file. Thus, a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should, for example, be promoted, demoted, given a raise, transferred, reassigned, dismissed or subject to other such traditional personnel actions, should be considered "similar" to a personnel file for the purposes of 1-19(b)(2) [now 1-210(b)].

 

25.  It is concluded that, because the requested records are similar to a personnel file for purposes of 1-210(b)(2), G.S., there is a rebuttable presumption, that the requested complaints reflect that portion of the respondent’s activities that relate to its personnel.

 

26.  The Commission also takes administrative notice of the fact that written complaints about public officers and employees are a common occurrence that regularly relate to an agency’s personnel operations and decisions.  Testimony by the respondent’s witness confirmed that it selects and retains special public defenders based in part on complaints by clients, and that it considered these actions to be personnel decisions, with the difference that special public defenders are considered to be independent contractors, and that the respondent has more control over its regular hourly employees.

 

27.  Consistent with this general observation, it is found that the respondent replies to complaints about public defenders in its ordinary course of business.  In general (but not necessarily with respect to the actual requested records concerning Attorney McDonough), that response might range from speaking to the public defender about his or her conduct of the case and agreeing with the public defender that another lawyer should come in on the case; to deciding to immediately not give any more cases to that lawyer; to bringing to the Standing Committee on Special Public Defenders the decision whether or not the lawyer should be receiving any new contracts or new off-contract hourly work; to referring the attorney for disciplinary action by the Statewide Grievance Committee.  Although the intervenor may not be an “employee” of the respondent, but rather an independent contractor, the respondent itself characterized these actions broadly as personnel decisions, and potentially disciplinary decisions, albeit with the term “discipline” taken in a broad sense, that it uses to try to establish the very best pool of public defenders that it can. 

 

28.  The intervenor nonetheless contends that the requested complaints are not in the nature of personnel or similar files, because, he argues, they are protected by the attorney-client privilege. However, whether or not the records are privileged and therefore exempt from disclosure under 1-210(b)(10), G.S., which issue is addressed below, it is found that the requested complaints have as one of their principal purposes the furnishing of information for making personnel decisions regarding the public defender involved within the meaning of Connecticut Alcohol v. FOIC, above, and that the respondent’s activities in response to complaints about public defenders are not unrelated to its personnel function within the meaning of Clerk v. FOIC, above.

 

29.  It is therefore concluded that the requested complaints relate to an administrative function of the respondent, and that therefore the respondent is a public agency for the purpose of determining whether the records are disclosable under the FOI Act.

 

30.  The respondent also claims that because public defenders and lawyers appointed as special public defenders do not act under color of state law for purposes of an action in federal court under 42 U.S.C. 1983, Polk County v. Dodson, 454 U.S. 312, 325 (1981), that the requested records are private records of the client and are not within the jurisdiction of this Commission.  Although the Commission believes the jurisdictional question is conclusively controlled by Clerk, above, it will address the respondent’s concerns.

31.  In Dodson, the Court concluded that because public defenders do not act under the administrative direction of the state in the representation of their clients, since it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages, and because public defenders in fact act adversely to the state in defending their clients, that public defenders are not state actors in the context of 42 U.S.C. 1983 when they act on behalf of their clients.

32.  However, the question whether an action may be brought under 42 U.S.C. 1983 alleging inadequate representation is not governed by the same law or judged by the same standard as whether records admittedly in the custody and control of the respondent are public records within the meaning of 1-200(5) and 1-210(a), G.S.  The  question of whether the public defender in Dodson was a state actor is different from the question of whether the respondent Division of Public Defender Services (not the intervenor), in regard to the specific complaint records it maintains in connection with its employment of the intervenor, is itself a public agency subject to the Commission’s jurisdiction. Therefore, it is concluded that Dodson is not material to the issue of whether the requested records are public records, or whether the Commission’s jurisdiction extends to the respondent and these limited records.

 

33.  Moreover, even if Dodson were material, the Court itself in that case explicitly narrowed its holding not to include the kind of records now maintained and used by the respondent:  

 

   In concluding that [the public defender] did not act under color of state law in exercising her independent professional judgment in a criminal proceeding, we do not suggest that a public defender never acts in that role. In Branti v. Finkel, 445 U.S. 507 (1980), for example, we found that a public defender so acted when making hiring and firing decisions on behalf of the State. It may be -- although the question is not present in this case -- that a public defender also would act under color of state law while performing certain administrative and possibly investigative functions. Cf. Imbler v. Pachtman, 424 U.S. 409, 430-431, and n. 33 (1976).

 

Dodson, 324-324.

 

34.  Since the respondent makes hiring and firing decisions on behalf of the state when it engages public defenders, and since the respondent is performing administrative and investigative functions when it follows up on such letters, it is concluded that the Court in Dodson carefully did not extend its holding to the records at issue in this case. 

 

35.  Next, the intervenor contends that the requested complaints are exempt from disclosure pursuant to 1-210(b)(2), G.S., which provides that disclosure is not required of “[p]ersonnel or medical and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

36.  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 decisions1, and instances of advice given by the Commission staff members2, which have relied upon the Perkins test, since its release in 1993.

 

37.  It is found that disclosures relating to the employees of public agencies are presumptively legitimate matters of public concern.  Perkins, above, at 174.  “[W]hen a person accepts public employment, he or she becomes a servant of and accountable to the public.  As a result, that person’s reasonable expectation of privacy is diminished ….”  Id. at 177.  “The public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.”  Id.  

 

38.  The general rule under the FOI Act is disclosure, exceptions to this rule must be narrowly construed, and the burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.  New Haven v. FOIC, 205 Conn. 767, 775 (1988); Superintendent of Police v. FOIC, 222 Conn. 621 (1992); Ottochian v. FOIC, 221 Conn. 393 (1992).

 

39.  In the absence of any testimony about the actual contents of the requested records, or an offer of in camera inspection, it is found that the intervenor and the respondent failed to prove that the information sought does not pertain to legitimate matters of public concern, or that the disclosure of such information would be highly offensive to a reasonable person.

 

            40.  Although the requested records may or may not relate to the actual imposition of discipline against the intervenor (since no testimony was offered on this subject), the Commission presumes that complaints about public officers and employees are principally relevant to potential discipline, and that disciplinary records concerning public employees are presumptively open to the public.  See, Department of Public Safety v. FOI Commission, 242 Conn. 79 (1997) (report of even unsubstantiated claim of use of excessive force by state trooper not exempt from disclosure under 1-19(b)(2));  Department of Children and Families v. FOI Commission, 48 Conn. App. 467 (1998) (records of employees disciplined as a result of death of infant not exempt from disclosure under 1-19(b)(2)).

 

            41.  Thus, while there is no evidence whether discipline was or was not imposed against the intervenor, the fact that complaints were filed about the intervenor’s professional conduct, creating a rebuttable presumption of legitimate public interest, together with the fact that no evidence was presented of lack of legitimate public interest or that disclosure would be highly offensive to a reasonable person, leads reasonably, if not inexorably, to the conclusion that the requested records are not exempt from disclosure pursuant to 1-210(b)(2), G.S.

 

            42.  The respondent and the intervenor next claim that disclosure of the requested letters of complaint is barred by 1.6 of the Rules of Professional Responsibility, which provides in relevant part:

 

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by subsection (b), (c), or (d).

(c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to:

            (4) Comply with other law or a court order.

 

43.  This argument fails on a number of grounds.  First, the Rules of Professional Responsibility are not a state statute that provides for nondisclosure within the meaning of 1-210(a), G.S.

 

44.  Second, even if Rule 1.6 applied, subsection (c)(4) permits disclosure to “comply with other law,” and the FOI Act is such a law.

 

45.  The commentary to Rule 1.6 explains: 

 

The principle of client-lawyer confidentiality is given effect by related bodies of law, the attorney-client privilege, the work product doctrine and the Rule of confidentiality established in professional ethics.   The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.  The Rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.    The confidentiality Rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.  A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. [Emphasis added.]

 

46.  It is clear from the commentary quoted above that different rules of client-lawyer confidentiality apply in different settings, and are governed by different standards in their separate arenas of application.  Unlike the common law evidentiary privilege, Rule 1.6, an ethics prohibition, broadly extends to all information relating to the representation of a client, whether or not communicated in confidence and, apparently, whether or not in the context of seeking legal advice.  However, the applicable rule in an evidentiary proceeding is the attorney-client privilege, and this is the confidentiality rule recognized by 1-210(b)(10), G.S., and thus applicable in FOI proceedings, which provides that disclosure is not required of “communications privileged by the attorney-client relationship.”  See also, Maxwell v. Freedom of Info. Com'n, 260 Conn. 143, 794 A.2d 535 (Conn. 2002) (the legislature constitutionally delegated to the FOI Commission, the authority to determine the applicability of the attorney-client privilege for purposes of 1-210(b)(10)).

 

47. The exemption for attorney-client privileged communications contained in  1-210(b)(10), G.S., is limited to the following circumstances in accordance with established Connecticut law:

 

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived.

 

Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert. denied, 194 Conn. 801 (1984).

 

48. The attorney-client privilege thus protects communications between client and attorney, when made in confidence for the purpose of seeking or giving legal advice. Ullmann v. State, 230 Conn. 698, 711 (1994). It is strictly construed because it "tends to prevent a full disclosure of the truth…." Id. at 710. The privilege is waived when statements of the communication are made to third parties. Id. at 711; See LaFaive v. DiLoreto, supra.

 

49.  The respondent and intervenor contend that the privilege should be broadly construed to include communications where legal advice is neither sought nor given.

50.  However, it is well-established that not all communications between a lawyer and client are exempt from disclosure under the FOI Act.  See, e.g., Maxwell v. FOIC, 260 Conn. 143 (2002) (The commission correctly applied the common-law attorney-client privilege in concluding that the invoices were not exempt from disclosure).

51.  Indeed, the Court in Ullmann, above, made clear that the privilege does not extend to all communications:

"Since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures--necessary to obtain informed legal advice--which might not have been made absent the privilege." (Emphasis added.) Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976); see also United States v. DeFazio, 899 F.2d 626, 635 (7th Cir. 1990) (attorney-client communications are privileged only if they constitute legal advice or client confidences); In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036 (2d Cir. 1984); State v. Cascone, supra, 195 Conn. 186 (privilege protects only communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice). Not every communication between attorney and client falls within the privilege. A communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked to the giving of legal advice. See Turner’s Appeal, supra, 72 Conn. 318 ("such a request by a client to his attorney, made for the purpose of obtaining information for the former's benefit, upon a matter of fact, and not for the purpose of asking the  attorney's advice, ought not to be regarded as a privileged communication"); C. Tait & J. LaPlante, supra, 12.5.2.

 

Ullmann at 713.

 

52.  Because the respondent declined to produce the requested records for in camera inspection, and instead sought to establish the applicability of the privilege upon testimony concerning complaints generally, and testimony concerning the complainant’s own complaint about the intervenor and the respondent’s responses thereto, the following findings of fact and conclusions of law are necessarily based upon that evidence.

 

53.  It is found that the complainant’s own complaints to the respondent about his representation do not seek legal advice.  They simply express concerns about his representation by the intervenor, largely complaining about the level of communication from his public defender. 

 

54.  Indeed, when asked by the hearing officer to point to the portion of Mr. May’s complaints against the intervenor on September 14 and October 11, 2007 that sought legal advice, the respondent’s witness was unable to do so.

 

55.  It is also found that the respondent and intervenor offered no evidence to prove that any of the requested complaints by other clients are different from the complainant’s in terms of whether they contain a request for legal advice.

 

56.  It is additionally found after an in camera review of the letters written by the respondent back to the complainant regarding his complaints about the intervenor, that the respondent’s letters  do not contain legal advice, and largely urge the complainant to communicate with his public defender.  The complainant’s response to this urging (contained in his own records request, which is a public, not in camera, exhibit) was: “If you recall, I have already filed several complaints with the Habeas Unit because he will not communicate with me.”  [Emphasis added.]  The complainant goes on to say:

 

Who is directly responsible to see that indigent individuals get proper representation in the court system by so-called “Special Public Defenders” appointed to them?  I need a name.  There is a huge problem here as this is the second attorney who has … not communicated with me.

 

Where can I get copies of complaints filed by indigent prisoners for not getting proper representation or communication by these hired attorneys?  Who is responsible for investigating these complaints?  I don’t want doubletalk, but a direct answer.

57.  It is also found that Mr. May made at least one similar complaint to the Statewide Grievance Committee.

 

58.  It is therefore found that Mr. May’s complaints about his public defender were not for the purpose of seeking legal advice, but to establish accountability for what he believed to be his public defender’s shortcomings.  It is clear from the text of his letters that he wanted a new attorney, not legal advice about his case.

59.  Neither the respondent nor the intervenor argued or presented evidence that the requested records, that is, complaints by other clients about the intervenor, differed in any material way from Mr. May’s own complaints.

 

60.  It is therefore found, by reasonable inference from the facts on the record, that the communications contained in the requested records were not made for the purpose of seeking legal advice.

 

61.  It is also found, based on Mr. May’s own undisputed testimony, that he did not intend his complaints about the intervenor to be confidential.  Indeed, at least one of his complaints was copied to several other governmental entities.

 

62.  The respondent presented testimony that it kept the requested records in confidence, but no testimony about whether the clients had delivered the records to it in confidence.

 

63.  It is therefore found, by reasonable inference from the facts on the record, that the communications contained in requested records were not made in confidence by the clients.

 

64.  It is therefore concluded that the requested records are not exempt from disclosure pursuant to 1-210(b)(10), G.S., because they are not communications protected by the common law attorney-client privilege.

 

65.  At the hearing, the respondent sought to introduce evidence concerning the applicability of 1-210(b)(18), G.S., which provides that disclosure is not required of:

 

    (18)  Records, the disclosure of which the Commissioner of Correction, or as it applies to Whiting Forensic Division facilities of the Connecticut Valley Hospital, the Commissioner of Mental Health and Addiction Services, has reasonable grounds to believe may result in a safety risk, including the risk of harm to any person or the risk of an escape from, or a disorder in, a correctional institution or facility under the supervision of the Department of Correction or Whiting Forensic Division facilities. Such records shall include, but are not limited to:

(A)  Security manuals, including emergency plans contained or referred to in such security manuals;

(B)  Engineering and architectural drawings of correctional institutions or facilities or Whiting Forensic Division facilities;

(C)  Operational specifications of security systems utilized by the Department of Correction at any correctional institution or facility or Whiting Forensic Division facilities, except that a general description of any such security system and the cost and quality of such system may be disclosed;

(D)  Training manuals prepared for correctional institutions and facilities or Whiting Forensic Division facilities that describe, in any manner, security procedures, emergency plans or security equipment;

(E)  Internal security audits of correctional institutions and facilities or Whiting Forensic Division facilities;

(F)  Minutes or recordings of staff meetings of the Department of Correction or Whiting Forensic Division facilities, or portions of such minutes or recordings, that contain or reveal information relating to security or other records otherwise exempt from disclosure under this subdivision;

(G)  Logs or other documents that contain information on the movement or assignment of inmates or staff at correctional institutions or facilities; and

(H)  Records that contain information on contacts between inmates, as defined in section 18-84, and law enforcement officers;

 

66.  Section 1-210(c), G.S., also provides:

   (c)  Whenever a public agency receives a request from any person confined in a correctional institution or facility or a Whiting Forensic Division facility, for disclosure of any public record under the Freedom of Information Act, the public agency shall promptly notify the Commissioner of Correction or the Commissioner of Mental Health and Addiction Services in the case of a person confined in a Whiting Forensic Division facility 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 believes the requested record is exempt from disclosure pursuant to subdivision (18) of subsection (b) of this section, the commissioner may withhold such record from such person when the record is delivered to the person's correctional institution or facility or Whiting Forensic Division facility.

 

67.  It is found that the Commissioner of Correction has not been notified by the respondent of any request by Mr. May for disclosure of any public record under the Freedom of Information Act.  It is also found that the Commissioner of Correction is not and has not sought to be made a party to this case.  In the event that the respondent complies with Mr. May’s request, either voluntarily or by order of this Commission, then it is obligated by 1-210(c), G.S., to give the required notification to the Commissioner of Correction before it does so.  If the Commissioner of Correction then believes that the requested record is exempt from disclosure pursuant to 1-210(b)(18), G.S., it may withhold the record when it is delivered.  If it withholds the record Mr. May may then appeal to this Commission.  Should he do so, the Commissioner of Correction may then assert the applicability of 1-210(b)(18), G.S.  Until such time, the applicability of that section is not at issue, and may be asserted only by the Commissioner of Correction, not the respondent Division of Public Defender Services, which lacks standing to do so. 

 

68.  The respondent’s proffer of evidence concerning the applicability of 1-210(b)(18), G.S., is therefore denied.

 

69.  It is concluded that the respondent violated 1-210(a) and 1-212(a), G.S., by failing to provide copies of the requested complaint letters to the complainant.

 

 

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

 

            1.  The respondent shall forthwith provide the requested records to the complainant at no charge.

 

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of June 9, 2010.

 

 

____________________________

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:

 

Thomas May, #96118

Downeast Correctional Facility

64 Base Road

Machiasport, Maine 04655

 

State of Connecticut,

Division of Public Defender Services

c/o Steven R. Strom, Esq.

Assistant Attorney General and

Terrence M. O’Neill, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

Dennis McDonough

c/o Raymond J. Plouffe, Jr., Esq.

Bai, Pollock, Blueweiss & Mulcahey, P.C.

One Corporate Drive

Shelton, CT 06484

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2009-394FD/paj/6/16/2010

 

 

 

 

 

 

 

 

 

 

 

1.  ENDNOTES

 

Court cases

 

Payne v. City of Danbury, 267 Conn. 669 (2004); Director, Retirement & Benefits Services Div. v. FOIC, 256 Conn. 764 (2001); Rocque v. FOIC, 255 Conn. 651 (2001); Dept. of Public Safety v FOIC, 242 Conn. 79 (1997); Conn. Alcohol & Drug Abuse Commission v. FOIC, 233 Conn.28 (1995); Kurecza v. FOIC, 228 Conn. 271 (1994); First Selectman v. FOIC, 60 Conn. App. 64 (2000); Dept. of Children & Families v. FOIC, 48 Conn. App. 467 (1998); Almeida v. FOIC, 39 Conn. App. 154 (1995); Town of Enfield v. Freedom of Information Commission,  Super Ct JD NB CV 06 4012219 S (Cohn, J. 2007); Chairman, Board of Ethics, Town of Greenwich and Board of Ethics, Town of Greenwich v. Freedom of Information Commission and Michael Aurelia, Super Ct JD NB CV 05 400 7004 S (Owens, J. 2006); Dept. of Transportation v. FOIC, Super Ct JD NB CV 01-0508810 (Schuman, J. 2001); City Treasurer, City of Hartford v. FOIC, Super Ct JD NB CV 99 0496222 (Cohn, J. 2000); Rocque, Commissioner of Environmental Protection v. FOIC, Super Ct JD NB CV 98 0492734 (Hartmere, J. 1999); Director, Retirement & Benefits Services Div. v. FOIC, Super Ct JD NB CV 98 0492692 (Hartmere, J. 1999); First Selectman, Town of Ridgefield v. FOIC, Super Ct JD NB CV 99‑0493041 (McWeeny, J. 1999); Chairman, Bd. of Education Town of Darien v. FOIC, Super Ct JD Htfd NB CV 97 0575674 (McWeeny, J. 1998); Waters, Commissioner of State of Conn. Dept. of Administrative Services v. FOIC, Super Ct JD Htfd/NB CV 96 0565853 (McWeeny, J. 1997); Armstrong, Commissioner of State of Conn. Dept. Of Correction v. FOIC, Super Ct JD Htfd/NB CV 96 0563608 (McWeeny, J. 1997); Dept. of Children & Families v. FOIC, Super Ct JD Htfd NB CV 96 0562546 (McWeeny, J. 1997); State of Conn. Office of Protection and Advocacy for Persons with Disabilities v. FOIC, Super Ct JD Htfd/NB CV 95 0554467 (McWeeny, J. 1997); Youngquist v. FOIC, Super Ct JD Htfd/NB, CV 95 0554601 (McWeeny, J. 1996 and 1997); Cracco v. FOIC, Super Ct JD Htfd/NB, CV 94 0705371 (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 93 0705370, (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 94 0705369, (Dunnell, J. 1995); Simonds v. FOIC, Super Ct JD Htfd/NB, CV 93 070 41 39 (Maloney, J. 1994); Gallagher v. FOIC, Super Ct JD Htfd/NB, CV 93 0531514 (Maloney, J. 1994).

 

 

FOIC Decisions

 

Docket #FIC 2007-580; Town of Putnam and Putnam Board of Education v. Commissioner, State of Connecticut, Department of Public Safety; and

State of Connecticut, Department of Public Safety (May 28, 2008); Docket #FIC 2007-447; Daniel Mathena v. Chief, Police Department, Town of Simsbury (April 23, 2008);

Docket #FIC 2007-560; Kenneth D. Goldberg v. Executive Director, Greater Hartford

Transit District; and Greater Hartford Transit District (April 9, 2008); Docket #FIC 2007-513; Elizabeth Benton and the New Haven Register v. Chairman, Board of Commissioners, Housing Authority, Town of Derby (April 9, 2008); Docket #FIC 2007-317; James Baker v. Warden, State of Connecticut, Department of Correction, Osborn Correctional Institution (April 9, 2008); Docket #FIC 2007-221; Jon Lender and The Hartford Courant v. Executive Director, State of Connecticut, Office of State Ethics; General Counsel, State of Connecticut Office of State Ethics; Citizen’s Ethics Advisory Board, State of Connecticut, Office of State Ethics; and State of Connecticut, Office of State Ethics (March 26, 2008); Docket #FIC 2007-469; Lawrence C. Sherman v. Board of Education, West Hartford Public Schools (March 12, 2008); Docket #FIC 2007-315; Dawne Westbrook v. Commissioner, State of Connecticut, Department of Correction (January 23, 2008); Docket #FIC 2007-298; Josh Kovner and the Hartford Courant v. Chief, Police Department, City of Middletown (November 14, 2007); Docket #FIC 2007-416; Junta for Progressive Action, Inc.; Unidad Latina en Accion; and The Jerome N. Frank Legal Services Organization v. John A. Danaher III, Commissioner, State of Connecticut, Department of Public Safety (November 8, 2007); Docket #FIC 2006-502; David P. Taylor v. Commissioner, State of Connecticut, Department of Correction (September 12, 2007); Docket #FIC 2007-123; Jessica Crowley and Isabella O’Malley v. Commissioner, State of Connecticut, Department of Public Health (August 8, 2007);

Docket #FIC 2006-467; Charlie Santiago Zapata v. Commissioner, State of Connecticut, Department of Correction (August 8, 2007); Docket #FIC 2006-374; Burton Weinstein v. Commissioner, State of Connecticut, Department of Public Safety (July 11, 2007); Docket # 2006-343; Stephanie Reitz and the Associated Press v. Commissioner, State of Connecticut, Department of Correction (June 27, 2007); Docket #FIC 2006-098; Louis J. Russo v. Director, State of Connecticut, University of Connecticut Health Center, Office of Health Affairs Policy Planning; and Dr. Jacob Zamstein (February 28, 2007); Docket #FIC 2006-258; John Orr v. First Selectman, Town of Essex (January 24, 2007); Docket #FIC 2006-242; Ismael Hernandez III v. Director of Labor Relations, Labor Relations Office, City of Bridgeport (January 24, 2007); Docket #FIC 2006-292; Mary Ellen Fillo and The Hartford Courant v. Chief, Volunteer Fire Department, Town of Newington (January 10, 2007); Docket #FIC 2006-121; John Bolton v. Personnel Director, Civil Service Commission, City of Bridgeport; and Civil Service Commission, City of Bridgeport (December 13, 2006); Docket #FIC 2005-571; Alexander Wood and the Manchester Journal Inquirer v. Director, Human Resources Department, Town of Windsor (October 25, 2006); Docket #FIC 2005-535; Alexander Wood and The Manchester Journal-Inquirer v. Director of Human Resources, Town of Windsor (October 25, 2006); Docket #FIC 2005-511; Don Stacom and the Hartford Courant v. John Divenere, Chief, Police Department, City of Bristol (October 11, 2006); Docket #FIC 2005-508; Connecticut State Conference of NAACP Branches v. Chief, Police Department, City of Bristol (October 11, 2006); Docket #FIC 2005-478; Doreen Guarino and the Manchester Journal-Inquirer v. Chief, Police Department, Town of Enfield (September 13, 2006); Docket #FIC 2005-473; Alexander Wood, Heather Nann Collins, and the Manchester; Journal-Inquirer v. Executive Director, State of Connecticut, Board of Education; and Services for the Blind (September 13, 2006); Docket #FIC 2005-448; Susan Raff and WFSB TV v. Mayor, City of Middletown (September 13, 2006); Docket #FIC 2005-615; James E. Simpson v. Chief, Police Department, Town of Seymour (August 23, 2006); Docket #FIC 2005-436; Suzanne Risley and the Waterbury Republican-American v. Chief, Police Department, City of Torrington (August 23, 2006); Docket #FIC 2005-242; Michelle Tuccitto and The New Haven Register v. Chief, Police Department, City of New Haven (May 10, 2006); Docket #FIC 2005-096; Richard Fontana, Jr. v. Board of Fire Commissioners, West Shore Fire District (February 8, 2006); Docket #FIC 2005-058; Glenn C. Morron and William Hertler, Jr. v. J. Edward Brymer, Chief, Police Department, City of Middletown; Phillip Pessina, Deputy Chief, Police Department, City of Middletown; and Lyn Baldoni, Deputy Chief, Police Department, City of Middletown (January 25, 2006);  Docket #FIC 2005-081; Megan Bard and the New London Day v. Superintendent of Schools, Canterbury Public Schools; and Board of Education, Canterbury Public Schools (October 26, 2005); Docket #FIC 2004-289; Lisa A. Coleman v. Chief, Police Department, Town of New Milford (June 22, 2005); Docket #FIC 2004-408; Michael Aurelia v. Chairman, Board of Ethics, Town of Greenwich; and Board of Ethics, Town of Greenwich (May 11, 2005); Docket #FIC 2004-197; Maria McKeon v. Town Manager, Town of Hebron (March 23, 2005); Docket #FIC 2004-159; Jason L. McCoy v. Town Manager, Town of Rocky Hill (March 23, 2005); Docket #FIC 2004-119; Dawne Westbrook v. Chief, Police Department, Town of Rocky Hill; and Robert Catania (February 9, 2005); Docket #FIC 2004-092; Dan Levine v. Public Information Officer, Police Department, City of Hartford (February 9, 2005);

Docket #FIC 2004-005; Ralph W. Williams Jr. and The Manchester Journal Inquirer v. State Connecticut, Office of the Governor (Oct. 13, 2004); Docket #FIC 2003-456; Thomas O’Brien v. Chief, Police Department, Town of Waterford (Oct. 13, 2004); Docket #FIC 2003-454; Michael C. Bingham and Business New Haven v. Commissioner, State of Connecticut, Department of Banking (Sept. 22, 2004); Docket #FIC 2003-382; Michael J. McMullen v. Town Administrator, Town of Vernon (Sep. 22, 2004); Docket #FIC 2004-100; Jerry Romaniello and the Greenwich Firefighters Association v. First Selectman, Town of Greenwich (Sept. 8, 2004); Docket #FIC 2003-348; Alexander Wood and the Journal Inquirer, v. Town Manager, Town of South Windsor (Sep. 8, 2004); Docket #FIC 2003-386; Mathew L. Brown and the Willimantic Chronicle, v. President and Chief Executive Officer, Windham Mills Development Corp. (Aug. 11, 2004); Docket #FIC 2003-285; Frank C. Violissi, Jr. v. First Selectman, Town of Chester (May 26, 2004); Docket #FIC 2003-074; Heather M. Henderson v. State of Connecticut, Department of Public Safety, Legal Affairs Department (Dec. 10, 2003); Docket #FIC 2003-020; Hugh Curran v. Mayor, City of Waterbury (Sept. 10, 2003); Docket #FIC 2002-580; Ken Byron and The Hartford Courant v. First Selectman, Town of Westbrook (Sept. 10, 2003); Docket #FIC 2003-038 Chris Dehnel and The Journal Inquirer v.  First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2002-531Chris Dehnel and Journal Inquirer First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2003-055; Robert Mack v. Director, State of Connecticut, Department of Correction, Labor Relations (July 23, 2003); Docket #FIC 2002-345; Josh Kovner, Chris Keating, and The Hartford Courant v. Chief, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-338; Amy L. Zitka and The Middletown Press v. Chief, Police Department, City of Middletown; and Professional Standards Unit Supervisor, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-465; Fred Radford v. Chairman, Police Commission, Town of Trumbull; and Chief, Police Department, Town of Trumbull (July 9, 2003); Docket #FIC 2002-118; Kimberly W. Moy and the Hartford Courant v. Superintendent of Schools, Southington Public Schools (Feb. 26, 2003); Docket #FIC 2002-020; Maurice Timothy Reidy and The Hartford Courant v. Chief, Police Department, Town of Newington and Brendan Fitzgerald (Oct. 23, 2002); Docket #FIC 2001-489 Jonathan Kellogg, Trip Jennings and Waterbury Republican-American Chief, Police Department, Borough of Naugatuck and Rick Smolicz (Sept. 25, 2002); Docket #FIC 2002-173; Carrie J. Campion v. Director, Department of Human Resources, Town of Fairfield (Aug. 28, 2002); Docket #FIC 2001-425 Joseph Mincewicz, Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Aug. 28, 2002); Docket #FIC 2001-421 Jean M. Morningstar and University Health Professionals Local 3837, AFT-CFEPE, AFL-CIO v. Executive Vice President for Health Affairs, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center; and Justin Radolf, M.D., Director, Center for Microbial Pathogenesis, School of Medicine, University of Connecticut Health Center (Aug. 28, 2002); Docket #FIC 2002-093 Sean P. Turpin v. Director, Department of Human Resources, Town of Greenwich and Steve Demetri (July 24, 2002); Docket #FIC 2002-034; MariAn Gail Brown, Michael P. Mayko and Connecticut Post Michael Lupkas, Comptroller, City of Bridgeport; Christopher Duby, Chief of Staff, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport; and Gregory Conte, Deputy Chief of Staff, City of Bridgeport (June 26, 2002); Docket #FIC 2001-364; Karen Guzman and The Hartford Courant v. City of New Britain Docket (June 26, 2002); Docket #FIC 2001-180 James H. Smith and The Record Journal Publishing Company v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Feb. 13, 2002); Docket #FIC 2001-129; Kimberly W. Moy and The Hartford Courant v. Police Commission, Town of Southington (Feb. 13, 2002); Docket #FIC 2001-251 Fred Radford v. Chief, Police Department, Town of Trumbull (Jan. 23, 2002); Docket #FIC 2000-624; Eric Gustavson v. Board of Education, Brookfield Public Schools (June 13, 2001); Docket #FIC 2000-557; Wendy John v. Richard Blumenthal, Attorney General, State of Connecticut, Office of the Attorney General; Wil Gundling, William McCullough, Phillip Schulz, Margaret Chapple, Assistant Attorneys General, State of Connecticut, Office of the Attorney General; and State of Connecticut, Office of the Attorney General (June 13, 2001); Docket #FIC 2000-268; Michael Costanza and The Day v. Director of Utilities, Utilities Department, City of Groton; and Mayor, City of Groton (April 25, 2001); Docket #FIC 2000-198; William J. Stone v. Personnel Administrator, State of Connecticut, Department of Transportation, Bureau of Finance and Administration; and State of Connecticut, Department of Transportation (April 20, 2001); Docket #FIC 2000-537; James Leonard, Jr. v. Chief, Police Department, City of New Britain (March 28, 2001); Docket #FIC 2000-348; Bradshaw Smith v. Office of the Vice Chancellor for Information Services, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut (February 28, 2001); Docket #FIC 2000-474; Robert H. Boone and Journal Inquirer v. Chief, Police Department, Town of Windsor Locks (Jan. 24, 2001); Docket #FIC 2000-265; Lisa Goldberg and The Hartford Courant v. Superintendent of Schools, Vernon Public Schools (Jan. 24, 2001); Docket #FIC 2000-569; Mary Hyde v. Chief, Police Department, Town of Seymour (Dec. 13, 2000); Docket #FIC 2000-049; Nicholas B. Wynnick v. Board of Directors, Ansonia Public Library, Town of Ansonia (Dec. 13, 2000); Docket #FIC 2000-136; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC 2000-135; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC2000-086; Mitchell D. Poudrier v. Superintendent of Schools, Killingly Public Schools (Sept. 13, 2000); Docket #FIC 2000-173; Robert H. Boone and the Journal Inquirer v. Anthony Milano, District Manager, Metropolitan District Commission; and Metropolitan District Commission (Aug. 23, 2000); Docket #FIC 2000-094; James D. Goodwin v. Communications Specialist, State of Connecticut, Department of Social Services, Public and Government Relations Unit (Aug. 9, 2000); Docket #FIC 2000-022; Thedress Campbell v. City Treasurer, City of Hartford (Aug. 9, 2000); Docket #FIC 2000-137; Robert H. Boone and Journal Inquirer v. Metropolitan District Commission (July 12, 2000); Docket #FIC 1999-560; Leo F. Smith v. Robert H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town of Suffield (July 12, 2000); Docket #FIC 1999-556; Delores Annicelli v. Director, New Haven Housing Authority, City of New Haven; and New Haven Housing Authority, City of New Haven (July 12, 2000); Docket #FIC 1999-548; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-547; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-525; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 2000-118; Elizabeth Ganga and Connecticut Post v. Police Department, Town of Stratford (June 28, 2000); Docket #FIC 2000-095; Ron Robillard and the Chronicle v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 2000-093; Megan J. Bard and The Norwich Bulletin v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 1999-575; Bruce Kaz v. Robert Skinner, First Selectman, Town of Suffield; and Ted Flanders, Building Inspector, Town of Suffield (June 28, 2000); Docket #FIC 1999-519; Robert J. Fortier v. Personnel Director, Town of East Hartford; and Mayor, Town of East Hartford (June 14, 2000); Docket #FIC1999-550; James and Susanne Milewski v. Deputy Chief, Police Department, Town of Clinton; and Police Department, Town of Clinton (May 24, 2000); Docket #FIC 2000-005; Fred B. Feins v. President and Chief Executive Officer, Granby Ambulance Association, Inc., Town of Granby (May 10, 2000); Docket #FIC1999-606; Robert L. Corraro and IBEW Local 90 v. Town Attorney, Town of Hamden; and Electrical Contractors, Inc. (May 10, 2000); Docket #FIC 1999-533; Donald J. Lanouette, Jr. v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (April 26, 2000); Docket #FIC 1999-502; Christopher Hoffman and New Haven Register v. Director of Personnel, State of Connecticut, Southern Connecticut State University; and Personnel Office, State of Connecticut, Southern Connecticut State University (April 26, 2000); Docket #FIC1999-440; Anne Hamilton and The Hartford Courant James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant, Police Department, Town of Avon; and Police Department, Town of Avon (March 8, 2000); Docket #FIC1999-333; Lynn Fredricksen and New Haven Register v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (March 8, 2000); Docket #FIC 1999-289; Thomas Moran v. Director, Human Resources, Town of Simsbury; and Department of Human Resources, Town of Simsbury (Feb. 9, 2000); Docket #FIC 1999-328; Victor Zigmund v. Director, State of Connecticut, Department of Mental Health and Addiction Services, Human Resources Operations, Connecticut Valley Hospital, Whiting Forensic Division (Jan. 26, 2000); Docket #FIC 1999-100; Janice D’Arcy and The Hartford Courant v. Chief, Police Department, Town of Cheshire; Police Department, Town of Cheshire; Town Manager, Town of Cheshire; and Town of Cheshire (Jan. 26, 2000); Docket #FIC 1999-355; Wayne Mercier v. Patricia C. Washington, Director of Personnel, City of Hartford; and Department of Personnel, City of Hartford (Nov. 10, 1999); Docket #FIC 1998-391; Jonathan F. Kellogg and The Republican American v. Department of Education, City of Waterbury (Oct. 13, 1999); Docket #FIC 1999-161; Michael W. Cahill v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden (Sept. 22, 1999); Docket #FIC 1998-294; Robert J. Bourne v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1998-293; Joseph J. Cassidy v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1999-040; Judith F. Machuga and State of Connecticut, Division of Public Defender Services, Superior Court, G.A. 13 v. Chief, Police Department, Town of East Windsor; and Police Department, Town of East Windsor (Aug. 25, 1999); Docket #FIC 1999-144; Robert H. Boone and Journal Inquirer v. William Gifford, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Windsor Locks Police Commission (July 28, 1999); Docket #FIC 1999-096; Paul Marks and The Hartford Courant v. Chief, Police Department, Town of Windsor Locks; and Police Department, Town of Windsor Locks (July 28, 1999); Docket #FIC 1999-064; Joan Coe v. First Selectman, Town of Simsbury; Director, Human Resources Department, Town of Simsbury; and Town of Simsbury (July 28, 1999); Docket #FIC 1999-150; Andrew Nargi v. Office of Corporation Counsel, City of Torrington; and City of Torrington (July 14, 1999); Docket #FIC 1999-135; Warren Woodberry, Jr. and The Hartford Courant v. Acting Town Manager, Town of Rocky Hill and Town of Rocky Hill (July 14, 1999); Docket #FIC 1999-015; Richard Manuel Rivera v. Superintendent of Schools, Torrington Public Schools; and Board of Education, Torrington Public Schools (June 9, 1999); Docket #FIC 1998-372; William C. Kaempffer and New Haven Register v. Police Department, City of New Haven; City of New Haven; and James Sorrentino (June 9, 1999); Docket #FIC 1997-361; Docket #FIC 1999-019; David K. Jaffe v. State of Connecticut, Connecticut Lottery Corporation, Human Resources; State of Connecticut, Connecticut Lottery Corporation, Security Division; and State of Connecticut, Connecticut Lottery Corporation (April 28, 1999); Docket #FIC1998-325; Virginia Groark and The Day v. Freedom of Information Officer, State of Connecticut, Department of Public Health, Office of Special Services, Communications Division; and Agency Personnel Administrator, State of Connecticut, Department of Public Health, Human Resources Division (April 28, 1999); Docket #FIC 1998-208; Thedress Campbell v. City Treasurer, City of Hartford; and City of Hartford (April 14, 1999); Docket #FIC 1998-265; Benjamin M. Wenograd and Service Employees International Union Local 760 v. John Roughan, Executive Director, East Hartford Housing Authority; and East Hartford Housing Authority, Town of East Hartford (March 24, 1999); Docket #FIC 1997-361; Dominick L. Santarsiero v. Director, Human Resources, City of Stamford (June 10, 1998); Docket #FIC 1997-363; Diana R. Raczkowski v. Mayor, Town of Naugatuck (March 11, 1998); Docket #FIC 1997-307; Krystin Bratina v. Chief, Hartford Fire Department, City of Hartford (March 11, 1998); Docket #FIC 1998-288; Christian Miller and the New Haven Register v. Superintendent, Branford Public Schools; and Board of Education, Branford Public Schools (Feb. 24, 1999); Docket #FIC 1998-255; Joan O’Rourke v. Chief, Police Department, City of Torrington; and Police Department, City of Torrington (Jan. 27, 1999); Docket #FIC 1998-251; John Ward v. Beverly L. Durante, Personnel Administrator, Housatonic Area Regional Transit; and Housatonic Area Regional Transit (Jan. 27, 1999); Docket #FIC 1998-163; Lawrence A. Butts v. Director, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-162; Lawrence A. Butts Chairperson, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-232; Scott Clark, Amy Kertesz, Michael Gates and the Ridgefield Police Union v. First Selectman, Town of Ridgefield; and Town of Ridgefield (Nov. 18, 1998); Docket #FIC 1998-193; Daniel P. Jones and The Hartford Courant v. Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection (Nov. 18, 1998); Docket #FIC 1998-121; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown and Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998-120; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998‑094; Janice D'Arcy and The Hartford Courant v. Chief, Meriden Police Department, City of Meriden and Meriden Police Department (Oct. 14, 1998); Docket #FIC 1997-422; Joseph A. Johnson, Jr. and Greenwich Time v. Chief, Greenwich Police Department, Town of Greenwich; and Greenwich Police Department, Town of Greenwich (Sept. 9, 1998); Docket #FIC 1998-023; Deborah Maynard v. Superintendent, Voluntown School District; and Principal, Voluntown Elementary School, Voluntown School District (Aug. 12, 1998); Docket #FIC 1997-298; Allan Drury and The New Haven Register v. Chief, East Haven Police Department, Town of East Haven; and Town of East Haven (June 10, 1998); Jonathan Lucas and Greenwich Times v. Director, Department of Human Resources, Town of Greenwich; and Town of Greenwich (May 27, 1998); John C. Rettman v. Meriden Police Department, Internal Affairs Division; and Paul Rowen (May 13, 1998); Docket #FIC 1997-318; Dennis Carnot v. Chief, Meriden Police Department, City of Meriden; Internal Affairs Division, Meriden Police Department, City of Meriden; Meriden Police Department, City of Meriden; and Paul Rowen (May 13, 1998); Docket #FIC 1997-175; Matthew Brown, Ken Byron and The Hartford Courant v. Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth (February 18, 1998); Docket #FIC 1997-123; John Christoffersen and The Advocate v. Superintendent of Schools, Stamford Public Schools and Director of Personnel, Stamford Public Schools (Feb. 11, 1998); Docket #FIC 1997-088; John B. Harkins v. Acting Town Manager, Town of Tolland (Jan. 28, 1998); Docket #FIC 1997-085; Joe Johnson and Greenwich Time v. Chief of Police, Greenwich Police Department (Jan. 28, 1998); Docket #FIC 1997-142; Laura Amon v. Program Manager, Affirmative Action Division, State of Connecticut, Department of Transportation (Dec. 3, 1997); Docket #FIC 1996-572; Ken Byron and The Hartford Courant v. Chief of Police, Town of Wethersfield (Nov. 12, 1997); Docket #FIC 1997-238; Kimberley A. Thomsen and the Republican-American v. Acting Superintendent, Waterbury Police Department (Oct. 29, 1997); Docket #FIC 1997-089; Steven Edelman v. Commissioner, State of Connecticut, Department of Mental Retardation; and State of Connecticut, Department of Mental Retardation (Oct. 22, 1997); Docket #FIC 1996-551; Judith A. Amato v. Executive Director, New Britain Housing Authority; and New Britain Housing Authority (Aug. 27, 1997); Docket # FIC 1996-539; Ann Marie Derwin v. Legal Advisor, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety (Aug. 27, 1997); Docket #FIC 1996-592; Francine Karp v. Mayor, City of Bristol; Director of Personnel, City of Bristol; and Dennis Daigneault (July 23, 1997); Docket #FIC 1996-243; Joanne C. Tashjian v. Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission (June 4, 1997); Docket #FIC 1996-322;Carolyn Moreau and The Hartford Courant v. Chief of Police, Southington Police Department; and Susan Williams (May 28, 1997); Docket #FIC 1996-465; John Gauger, Jr., Joseph Cadrain and Richard Westervelt v. Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police (April 9, 1997); Docket #FIC 1996-315; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-521; Carol Butterworth v. Town Council, Town of Tolland (March 26, 1997); Docket #FIC 1996-421; John B. Harkins v. Chairman, Tolland Town Council (March 26, 1997); Docket #FIC 1996-314; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-119; David W. Cummings v. Jesse M. Frankl, Chairman, State of Connecticut, Workers’ Compensation Commission (March 26, 1997); Docket #FIC 1996-215; Alice M. Gray v. Chief of Police, Manchester Police Department, and Assistant Town Attorney, Town of Manchester (Feb. 26, 1997); Docket #FIC 1996-159; Carolyn Moreau and The Hartford Courant v. Police Chief, Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-124; Donald H. Schiller, Michael Kelley and The Record-Journal Publishing Company v. Police Chief, Town of Southington Police Department, and Town of Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-134; Betty Halibozek v. Superintendent of Schools, Middletown Public Schools; and Supervisor of Maintenance and Transportation, Board of Education, City of Middletown (Dec. 11, 1996); Docket #FIC1996-006; Joseph Cadrain and Richard Westervelt v. Gerald Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety, Division of State Police (Dec. 11, 1996); Docket #FIC 1996-153; Tracey Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety (Nov. 20, 1996); Docket #FIC1995-419; Robie Irizarry v. Warden, Willard Correctional Institution, State of Connecticut, Department of Correction (Oct. 23, 1996); Docket #FIC 1995-368; Thomas Lally v. Executive Director, State of Connecticut Board of Education and Services for the Blind, and Special Projects Coordinator, State of Connecticut, Board of Education and Services for the Blind (Oct. 9, 1996); Docket #FIC 1995-403; Jesse C. Leavenworth and The Hartford Courant v. Superintendent of Schools, Regional School District #7 (Sept. 25, 1996); Docket #FIC 1995-361; Christopher Hoffman and the New Haven Register v. James J. McGrath, Chief of Police, Ansonia Police Department and Eugene K. Baron, Brian Phipps, and Howard Tinney as members of the Ansonia Board of Police Commissioners (Sept. 25, 1996); Docket #FIC1995-358; Lyn Bixby and The Hartford Courant v. State of Connecticut, Department of Administrative Services (Sept. 25, 1996); Docket #FIC 1996-056; Francine Cimino v. Chief of Police, Glastonbury Police Department; Town Manager, Town of Glastonbury; and Town of Glastonbury (Sept. 25, 1996); Docket #FIC 1995-343; John J. Woodcock, III v. Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 1995-324; John J. Woodcock, III and Kathryn A. Hale v. Dana Whitman, Jr., Acting Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 95-251; Lyn Bixby & The Hartford Courant v. Commissioner, State of Connecticut, Department of Correction (July 10, 1996); Docket #FIC 1995-252; Valerie Finholm and The Hartford Courant v. Commissioner, State of Connecticut, Department of Children and Families (May 22, 1996); Docket #FIC 1995-193; Terence P. Sexton v. Chief of Police, Hartford Police Department (May 8, 1996); Docket #FIC 1995-125; Chris Powell and Journal Inquirer v. Commissioner, State of Connecticut, Department of Social Services (March 13, 1996); Docket #FIC 1995-081; Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison v. State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities, Sharon Story and Marlene Fein (March 13, 1996); Docket #FIC 1995-074; Jeffrey C. Cole and WFSB/TV 3 v. James Strillacci, Chief of Police, West Hartford Police Department (Jan. 24, 1996); Docket #FIC 1995-026; Curtis R. Wood v. Director of Affirmative Action, State of Connecticut, Department of Correction (Jan. 24, 1996); Docket #FIC 1995-132; Michael A. Ingrassia v. Warden, Walker Special Management Unit, State of Connecticut Department of Correction (Dec. 27, 1995); Docket #FIC 1995-048; Jane Holfelder v. Canton Police Department (June 14, 1995); Docket #FIC 1994-351; Edward A. Peruta v. O. Paul Shew, Rocky Hill Town Manager and Director of Public Safety; Donald Unwin, Mayor of Rocky Hill, William Pacelia, Deputy Mayor of Rocky Hill; and Curt Roggi, Rocky Hill Town Attorney (May 28, 1995); Docket #FIC 1994-160; John Springer and The Bristol Press v. Chief of Police, Bristol Police Department (April 5, 1995); Docket #FIC 1994-077; Kathryn Kranhold and The Hartford Courant v. Director, New Haven Health Department (Feb. 8, 1995); Docket #FIC 1994-099; Frank Faraci, Jr. v. Middletown Police Department, Mayor of Middletown, and Middletown City Attorney (Feb. 2, 1995); Docket #FIC 1994-011; Robert Grabar, Edward Frede and The News-Times v. Superintendent of Schools, Brookfield Public Schools and Brookfield Board of Education (Aug. 24, 1994); Docket #FIC 1993-279; Jay Lewin v. New Milford Director of Finance (March 23, 1994).


 

2.  ENDNOTES

 

 

AFFIDAVIT OF ERIC V. TURNER

 

Eric V. Turner, having been duly sworn, does hereby depose as follows:

 

1.  I am over the age of eighteen (18) years and understand the obligation of an affirmation.

 

2.  I am a member of the Connecticut Bar and am currently employed as Director of Public Education for the Connecticut Freedom of Information Commission, having first been employed by said commission in 1996.

 

3.  I am providing this affidavit in light of the Supreme Court decision in Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764 (2001), in which the court apparently invites a reconsideration of Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).  See, Director, supra at 782, fn 13, 785 (Zarella, J. concurring).

 

4.  As part of my responsibilities as Director of Public Education for said commission, I have developed, organized and scheduled speaking engagements, seminars and programs explaining the duties and rights established under the Connecticut Freedom of Information Act.

 

5.  Since I assumed my current position in 1996, there have been approximately 290 such speaking engagements, seminars and programs in Connecticut and I have personally lectured in approximately 80 such speaking engagements, seminars and programs.

 

6.  As part of the presentation I have prepared for such speaking engagements, seminars and programs, the subject of the Connecticut General Statues Section 1-210(b)(2) exemption for personnel, medical and similar files the disclosure of which would constitute an invasion of personal privacy is stressed because of the great interest in that exemption and the confusion generated by a series of inconsistent and contradictory court decisions prior to Perkins, supra.  See, e.g., Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991) (establishing “reasonable expectation of privacy” test; query whether subjectively or objectively applied) and Board of Education v. Freedom of Information Commission, 210 Conn. 590 (1989) (confirming a “balancing” test), which was overruled by the Chairman case.

 

7.  Since the Supreme Court ruling in Perkins, supra, all Freedom of Information Commission staff members who conduct such speaking engagements, seminars and programs discuss in detail the rulings in that case and its progeny.

 

8.  As part of my responsibilities as Director of Public Education, I also answer telephone and other inquiries from public officials and the public.  Since my employment with said commission, I have answered thousands of such inquiries, including hundreds of inquiries concerning the Connecticut General Statutes Section 1-210(b)(2) exemption.  In responding to such inquiries I discuss in detail the Perkins case and its progeny.

 

9.  Based on the foregoing experiences, it is my opinion that the Perkins decision, and its progeny, have had a beneficial effect on public officials and the public itself because they can rely on a now long-standing and clear test with respect to the Connecticut General Statutes Section 1-210(b)(2) exemption, which helps them determine whether that exemption is applicable to the practical problems they encounter with respect to personnel, medical and similar information.  Indeed, the many court and Freedom of Information Commission decisions applying the Perkins test have given public officials and the public a now consistent body of law concerning that statutory exemption.

 

 

Eric V. Turner

 

 

 

COUNTY OF HARTFORD

                                                            ss:  Hartford

STATE OF CONNECTICUT

 

Subscribed and attested to before me this 9th day of January, 2002.

 

 

 

Mitchell W. Pearlman

Commissioner of the Superior Court