FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Nicholas Novia,

 
  Complainant  
  against   Docket #FIC 2010-098

Adam Heller, Director, Information

Technology Services, City of Bridgeport;

Michael Feeney, Finance Director, City of

Bridgeport; Fleeta Hudson, City Clerk,

City of Bridgeport; Mark Anastasi, City

Attorney, City of Bridgeport; and City of

Bridgeport,

 
  Respondents December 15, 2010
       

 

The above-captioned matter was scheduled to be heard as a contested case on July 20, 2010, at which time the complainant and his counsel appeared, and counsel for the respondents appeared.  After the hearing was convened, counsel for the respondents informed the hearing officer that he was not prepared to go forward with the hearing at that time because his witness was unable to appear.  Accordingly, the hearing was continued to July 29, 2010.

 

On July 29, 2010, the complainant and his counsel appeared, and counsel for the respondents appeared.  Counsel for the respondents again appeared without a witness and represented to the hearing officer that the respondents were not prepared to go forward with the hearing.  In addition, counsel for the respondents stated that, as of that date, he had not had a chance to review the requested records.  Counsel further represented that none of the above-referenced respondents had even begun to process the complainant’s request for records, and, therefore, counsel represented that, while he did not believe that the requested records contained exempt information, he could not be sure that the respondents would not be claiming exemptions to disclosure.  The complainant presented testimony, exhibits and argument on the complaint, despite the respondents’ lack of preparation for the hearing.

 

At the conclusion of the proceedings on July 29, 2010, the hearing was continued to August 13, 2010, at which time the complainant and the respondents appeared with their counsel, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  At the conclusion of the proceedings on August 13, 2010, the hearing was continued to September 17, 2010, at which time the complainant, without counsel, and the respondents, with counsel, 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 respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.   It is found that, by separate letters both dated January 29, 2010, the complainant made two requests for records. 

 

3.   It is found that the complainant’s first request (the “First Request”) was sent to Adam Heller, the Director of Information Technology Services; Fleeta Hudson, the City Clerk; and Mark Anastasi, the City Attorney.  It is further found that, in the First Request, the complainant suggested that the simplest way to provide him with the following records would be on compact discs (“CDs”):

 

a.       All electronic mail sent/received by Fire Chief Brian Rooney from January 1, 2006 through January 31, 2010;

b.      All electronic mail sent/received by Deputy Fire Chief Thomas Connor from January 1, 2006 through January 31, 2010;

c.       All electronic mail sent/received by Secretary Renee Delpercio from January 1, 2006 through January 31, 2010;

d.      All electronic mail sent/received by Fire Administrative Caption Gary Boros from January 1, 2006 until Captain Boros’ retirement;[1]

e.       All electronic mail sent/received by Provisional Caption Charles Dimbo from January 1, 2006 through January 31, 2010; and

f.       All electronic mail sent/received by Provisional Captain Richard Skoog from January [1] 2006 through January 31, 2010. 

 

4.   It is found that the complainant’s second request (the “Second Request”) was sent to Michael Feeney, Office of the Comptroller; Fleeta Hudson, the City Clerk; and Mark Anastasi, the City Attorney.  It is further found that, in the Second Request, the complainant requested access to the following records and an opportunity to request copies of certain records after his review process was concluded:

 

a.       Copies of any and all scope of representation letters, contract documents, and retainer agreement/agreements, or any other type of agreement, between the City of Bridgeport, and its departments, and Attorney John Bohannon, setting the scope of services to be performed, and the objectives of the representation to the Bridgeport Fire Department beginning May 1, 2005, to the present.

b.      Records of payment, whether paid or unpaid, records of billing invoices made to, or from, Attorney John Bohannon related to the following departments, and their members, including, but not limited to, [t]he Bridgeport City Attorney’s Office, and Connecticut State Board of Mediation and Arbitration, specifically pertaining to current, and past, members of the Bridgeport Fire Department, beginning May 1, 2005, to the present date.

c.       Canceled checks, statements, receipts, or any other documents indicating payment, or monies owed, to John Bohannon, for all work performed in connection with the following departments, and their members, including, but not limited to, [t]he Civil Service Commission, Board of Fire Commission, Bridgeport Fire Department, Bridgeport City Attorney’s Office, and Connecticut State Board of Mediation and Arbitration, specifically pertaining to current, and past, members of the Bridgeport Fire Department, beginning May 1, 2005, to the present date.

d.      Itemized documents, invoices, bill[s], notes, indicating the costs, payments, paid or due, billing hours, meetings, hours spent/worked, pertaining to any member of the Bridgeport Fire Department, current and past, including, but not limited to, Chief officers, members who have been subjected to an investigation, or currently being investigated resulting in the following, including, but not limited to, [n]o Discipline, coaching/counseling, verbal warning, written warning, transfer, suspension, demotion, termination.

 

5.   It is found that, by letter dated February 1, 2010, the respondent city clerk acknowledged the complainant’s requests for records, and informed him that her office was forwarding both requests to the Office of the City Attorney for a proper response. 

 

6.   By letter of complaint dated February 10, 2010 and filed February 16, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to respond to his requests for records.  In the complaint, the complainant further indicated that he desired that the Commission fine the respondents.  In an amended statement dated March 20, 2010 and filed March 24, 2010, the complainant clarified that he was seeking that the Commission issue a civil penalty against Adam Heller, the Director of Information Technology Services; Finance Director Michael Feeney[2]; City Clerk Fleeta Hudson; and City Attorney Mark Anastasi. 

 

7.   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.

 

8.   Section 1-210(a), G.S., provides in relevant part that:

 

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, . . . or (3) receive a copy of such records in accordance with section 1-212.

 

9.   Section 1-212(a), G.S., provides in relevant part that:

 

Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.

 

10.  Section 1-212(b), G.S., provides in relevant part that:

 

The fee for any copy provided in accordance with subsection (a) of section 1-211 shall not exceed the cost thereof to the public agency.  In determining such costs for a copy, other than for a printout which exists at the time that the agency responds to the request for such copy, an agency may include only:

. . . .

 

  (2) An amount equal to the cost to the agency of engaging an outside professional electronic copying service to provide such copying services, if such service is necessary to provide the copying as requested. 

 

11. It is found that, to the extent that the respondents maintain the records described in paragraphs 3 and 4, above, the records are “public records” and must be disclosed in accordance with 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

12.  It is found that the respondent city clerk does not maintain any records responsive to either the First or the Second Request in this case.  It is further found that the respondent city clerk promptly acknowledged the complainant’s requests for records, and promptly forwarded both requests to the respondent city attorney and his counsel for a response. 

 

13.  It is found that, on or about May 29, 2010—four months after the complainant had made his requests, the complainant received a package of records from Associate City Attorney Melanie Howlett (the “associate city attorney”).  It is found that the records contained in the package were responsive to subsections 4.b and 4.d of the Second Request, referred to in paragraph 4, above.

 

14.  It is found that, as of the July 29, 2010 hearing, the complainant had not received any records responsive to subsection 4.a or  4.c of the Second Request, referred to in paragraph 4, above, or any records responsive to his First Request, referred to in paragraph 3, above. 

 

15. It is further found that, shortly before the July 29, 2010 hearing, the respondent’s associate city attorney informed the complainant that he would not be receiving any records responsive to the First Request because email records on the respondent city’s computer system were only retained for two or three days and simply could not be provided to the complainant. 

16.  It found that, as of the July 29, 2010 hearing, other than the respondent city clerk and the associate city attorney, none of the named respondents had reviewed either of the requests or inquired into whether it was possible to copy the requested emails and burn them to a CD--despite the fact that the complainant had sent the requests to each of the named respondents by certified mail/return receipt requested (the “certified mail receipts” or the “receipts”).

 

17.  It is found that, other than the certified mail receipt pertaining to the city attorney, the receipts show that the First Request and the Second Request were received and signed for by the city on July 29, 2010.  It is found that the receipt pertaining to the city attorney, for some unknown reason, was not returned to the complainant by the United States Postal Service. 

 

18.  It is found that, rather than permitting the requests in this case to be delivered to the named respondents, the associate city attorney identified in paragraph 13, above, intercepted the requests and took responsibility for seeing that they were complied with promptly and properly. 

 

19.  It is found that the respondent city attorney was aware of, and acquiesced to, the fact that the associate city attorney assumed sole responsibility for responding to the FOI requests served on the public agencies identified above in paragraphs 3 and 4.

 

20. At the conclusion of the July 29, 2010 hearing, the respondents’ counsel represented the following with regard to the complainant’s First Request: “to the extent that the emails exist, we will produce them.” In addition, counsel represented that there were eight additional boxes of records that had to be reviewed to see if they contained records responsive to the complainant’s Second Request.  With regard to the technical issue of copying the emails that the complainant was seeking in the First Request, and burning them onto a CD, the hearing officer requested that the respondents produce Adam Heller, the Director of Information Technology Services, at a continued hearing.  Respondents’ counsel agreed to produce Mr. Heller at the continued hearing.

 

21.   The respondents did not produce Mr. Heller at the August 13, 2010 hearing.  Instead, the associate city attorney identified in paragraph 13, above, testified, as did an executive secretary for the city’s fire chief and an information support specialist.  It is found that the information support specialist first learned of the requests for records in this case on August 12, 2010, when Mr. Heller informed him that he would have to testify at a Commission hearing scheduled for August 13, 2010. 

 

22.  With regard to capturing the emails responsive to the First Request, it is found that between 2006 and the fall of 2009, the respondent city managed its email server with software known as Microsoft Exchange 2000 (the “Previous Software”).  It is further found that, in the fall of 2009, the respondent city updated its email software to Microsoft Exchange 2007, and that this is the software that the city continues to use today (the “Current Software”). 

 

23.  It is found that, with regard to the capabilities of the respondent city’s server and the back-up tapes pertaining to the Current Software, the respondent city, with the assistance of the director of information technology, is capable of retrieving the requested emails from the fall of 2009 through January 29, 2010 from back-up tapes created on the city’s server, using the Current Software.  It is further found that the respondent director of information technology is capable of copying these emails once they are retrieved and burning them onto a CD for production to the complainant.

 

24.  It is therefore found that the associate city attorney’s statement with regard to the retention of the city’s email records, referred to in paragraph 15, above, is inaccurate with respect to emails retained on the respondent city’s back-up tapes, which tapes were created running the Current Software. 

 

25.  It is found that, instead of utilizing the back-up tapes pertaining to the Current Software, the associate city attorney intended instead to approach each of the individuals identified in paragraph 3, above, in order to have them each search for and retrieve the requested emails from their individual computer terminals.  It is found that, as of the time of the first contested case hearing and the second case contested hearing, the associate city attorney had not requested that these individual users gather their email.  It is further found that at the time of the first contested case hearing and the second contested case hearing, the associate city attorney had also not approached the director of information technology to inquire about having him retrieve, copy and burn the requested emails onto CDs for the complainant. 

 

26.  It is found that, at the time of the August 13, 2010 contested case hearing, the associate city attorney had provided those emails to the complainant that the individuals identified in paragraph 3, above, had been able to print from their individual computer terminals.  

 

27.  It is found that, to date, the respondents have not searched any of the back-up tapes which were created using the respondent city’s Current Software.  It is further found, however, that it is likely that a significant number of the requested emails exist on the back-up tapes created by running the Current Software. 

 

28.  With regard to the Previous Software, it is found that the respondent city is not capable of reading the back-up tapes created with such software by means of the city’s current email server.  In this regard, it is further found that, while these back-up tapes remain in the possession of the respondent city, the city no longer has possession of the drivers it requires to retrieve the emails on these back-up tapes into a readable and searchable medium. 

 

29.  Based on the respondents’ testimony, it is found that a data recovery service would be able to work with the back-up tapes pertaining to the Previous Software and restore the data contained on such tapes, so that information on the tapes could be read, and thereafter searched for responsive emails sent by and to the individuals identified in paragraph 3, above, during the time period 2006 through the fall of 2009.

 

30.  It is found that the complainant is agreeable to having the respondent city obtain an estimate from a data recovery service to have the back-up email tapes restored, so that these tapes can be searched by city employees for responsive emails.  It is further found that the respondents are amenable to obtaining such an estimate from a data recovery service and, if the complainant tenders the cost of engaging a data recovery service, employing city personnel to search for responsive emails once the tapes have been restored.[3] 

 

31.  With regard to the retrieval of emails from the back-up tapes for both the Previous and Current Software, the respondents argued that they have no legal obligation to retrieve and provide emails to the complainant that the respondents were permitted to delete under the retention schedules promulgated by the Public Records Administrator.  This legal argument was first raised during the last five minutes of the September 17, 2010 contested case hearing.  The respondents indicated that they would be filing a brief on this issue by October 4, 2010.  To date, no such brief has been submitted. 

 

32.  It is found that, because the respondents maintain the back-up tapes containing requested emails, they are obligated under the FOI Act to produce these records to the complainant, whether or not such records could have been entirely deleted pursuant to a retention schedule or otherwise.  See 1-210(a), G.S.  It is further found that the records retention schedules promulgated by the Public Records Administrator do not create exemptions to disclosure. See Chief of Police v. FOIC, 252 Conn. 377, 399 (2000) (holding that the “except as otherwise provided by any federal law or state statute” language of 1-210(a) of the FOI Act was “intended to refer to other federal and state laws that by their terms shield specific information from disclosure.”); cf. 11-8, G.S. (entitled “Records management program.  Public Records Administrator.”). 

 

33.  With regard to the subsections 4.a and 4.c of the Second Request, referred to in paragraph 4, above, it is found that, at the time of the August 13, 2010 hearing, the respondents had yet to search the eight boxes of records referenced in paragraph 20, above.  When questioned as to why these records had not yet been searched for responsive records, the respondents’ witness stated that these boxes were located in an archive room and that, in terms of organization, this particular room is a “nightmare.”

 

34.  At the August 13, 2010 hearing, the respondents contended for the first time that some of the emails responsive to the First Request constitute a personnel or similar file within the meaning of 1-210(b)(2), G.S.  Specifically, the respondents contended that some of the emails located on Chief Brian Rooney’s computer are “draft letters charging people [that is, three officers] with wrong-doing” and the respondents believed that the release of these emails “may” constitute an invasion of the officers’ privacy. 

 

35.   Section 1-210(b)(2), G.S., provides in relevant part that nothing in the FOI Act shall require disclosure of  “. . . personnel or medical files 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 such information is highly offensive to a reasonable person.  The Commission takes administrative notice of the multitude of court rulings, Commission final decisions (Endnote 1), and instances of advice given by the Commission and staff members (Endnote 2), which have relied upon the Perkins test, since its release in 1993.

 

 37.  Section 1-214, G.S., provides in relevant part that:

 

(b) Whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency shall immediately notify in writing (1) each employee concerned, provided such notice shall not be required to be in writing where impractical due to the large number of employees concerned and (2) the collective bargaining representative, if any, of each employee concerned.  Nothing herein shall require an agency to withhold from disclosure the contents of personnel or medical files and similar files when it does not reasonably believe that such disclosure would legally constitute an invasion of personal privacy.

 

(c) A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given.  Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee’s collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the object is not interposed for delay.  Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206.

 

38.  It is found that the respondents failed to prove that the email records described in paragraph 34, above, are "personnel or medical files and similar files" within the meaning of 1-210(b)(2), G.S.  See Connecticut Alcohol and Drug Abuse Commission v. FOIC, 233 Conn. 28 (1995). 

 

39.  It is further found that the respondents did not timely notify the three officers who they contend are the subjects of the requested emails.  Specifically, it is found that, at the time of the August 13, 2010 contested case hearing, the respondents had not sent written notices to any of the officers who are the subjects of the emails in question.  It is further found that none of the officers, nor their union representatives, filed a written objection to the disclosure of these particular emails, within the meaning of 1-214, G.S.

 

40.  It is found that the respondents failed to prove that disclosure of the emails dealing with officers’ “wrong-doing” do not pertain to a legitimate matter of public concern, or that the disclosure of such records would be highly offensive to a reasonable person.[4] 

 

41. It is concluded that the email records described in paragraph 34, above, are not exempt from mandatory disclosure pursuant to 1-210(b)(2), G.S. 

 

42.  The respondents next contend that these same emails are “drafts” and therefore are exempt from disclosure. 

 

43.  Section 1-210(b)(1), G.S., states that the FOIA shall not require mandatory disclosure of:

 

preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure….

 

44.  It is found that the respondents failed to provide any substantive testimony with regard to the preliminary nature of these emails. It is found that the respondents also failed to clarify the extent to which these emails had been circulated, other than to mention that these emails had been reviewed by at least two persons.  It is further found that the necessary circulation of these emails presumptively negates their preliminary nature.  See Strillacci, Chief of Police v. FOIC, CV084018120S, 2009 Conn. Super. LEXIS 1046, at *4 and *6 (Conn. Super. Ct. Apr. 20, 2009) (finding that “[a] preliminary document is one containing data not required or germane to the eventual purpose for which [it] was undertaken and it was thereafter modified to excise the material that was irrelevant to its. . . purpose” and concluding that the word-processed records at issue were not preliminary, but rather were completed documents to be used by the plaintiff within the course of his public duties), quoting Van Norstrand v. FOIC, 211 Conn. 339, 343 (1989). 

 

45.  It is concluded that the emails described in paragraph 34, above, are not exempt from mandatory disclosure pursuant to 1-210(b)(1), G.S. 

 

46.  Finally, the respondents contend that some of the responsive email records, are exempt from disclosure pursuant to 1-210(b)(3)(C), G.S. 

 

47.  Section 1-210(b)(3)(C), G.S., provides in relevant part that nothing in the FOI Act shall be construed to require the disclosure of:

 

Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of. . . (C)  information to be used in a prospective law enforcement action. . . .

 

48.  The respondents’ burden of proof under 1-210(b)(3)(C), G.S., requires an evidentiary showing that the records are in fact to be used in a prospective law enforcement action, and that the disclosure of the records would be prejudicial to such action.  Department of Public Safety v. FOIC, 51 Conn. App. 100, 1005-06 (1998). 

 

49.  The respondents contend that there is currently a pending investigation by the Bridgeport Police Department as to “whether or not civil work rules and criminal statutes have been violated” by personnel in the Bridgeport Fire Department. 

 

50.  At the September 17, 2010 hearing, the complainant indicated that he would not challenge the respondents’ position with regard to this particular pending investigation if the respondents would represent on the record that the investigation has nothing to do with the complainant himself.  The respondents stated in unequivocal terms that the complainant is not, and never has been, a target of this investigation.

 

51.  Accordingly, it is concluded that the exemption raised by the respondents pursuant to 1-210(b)(3)(C), G.S., with regard to the records described in paragraph 46, above, is moot.

 

52.  The Commission notes that the respondents represented at the August 13, 2010 hearing that, while they were not prepared to make an in camera submission at that time, they would be submitting to the Commission by August 20, 2010 all of the records for which they were asserting an exemption to disclosure.  To date, the Commission has yet to receive an in camera submission from the respondents. 

 

53.  At the conclusion of the August 13, 2010 hearing, the hearing officer continued the hearing to September 17, 2010 so that the issue of the imposition of civil penalties could be considered and each of the respondents against whom the complainant sought a civil penalty could appear and provide testimony.  The respondent city attorney and the respondent director of technology appeared to testify at the September 17, 2010 hearing. 

 

54.  It is found that, in or around June 2010, the respondent city attorney, in an attempt to locate records responsive to subsection 4.a and 4.c of the Second Request referred to in paragraph 4, above, searched through three rooms of boxes containing records.  It is found that the difficulty of locating these records was due to the fact that the boxes containing records pertaining to Attorney John Bohannon were labeled “Outside Counsel.”  Accordingly, it is found that it was necessary for the respondent city attorney to search all of the boxes labeled “Outside Counsel” in order to search for records responsive to the complainant’s request. 

 

55.  It is further found that there were additional boxes of records in the respondent city’s archive room that also needed to be searched for records responsive to subsections 4.a and 4.c of the Second Request referred to in paragraph 4, above.  It is found that these additional boxes were searched by the respondent city attorney in or around September 2010. 

 

56.  Based on the respondent city attorney’s testimony, it is found that, with regard to the Second Request outlined in paragraph 4, above, all of the responsive records in the possession of the respondents have been provided to the complainant. 

 

57.   With regard to the serious delay in providing responsive records in this case to the complainant, the respondent city attorney pointed out that the associate city attorney took an “unexpected and unanticipated” leave of absence from her position, which caused “an interruption in [the respondent city’s] process” of responding to FOI requests. 

 

58.  The complainant requests that civil penalties be imposed against all respondents pursuant to 1-206(b)(2), G.S., which provision provides in relevant part: 

 

. . . upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

59.  It is found that the associate city attorney began her leave of absence on or around March 5, 2010.  It is therefore found that the associate city attorney, on behalf of the respondents, had the complainant’s requests in her possession for over a month before she left her office.  (See 12, 17, and 18, above).

 

60.  It is found that, with the exception of the respondent city clerk, none of the respondents acknowledged the complainant’s requests. 

 

61.  It is further found that, although the complainant did not receive a signed certified mail receipt back with regard to confirm the delivery of his requests to the respondent city attorney, the respondent city attorney should have been on notice of the requests when, on February 1, 2010, the respondent city clerk forwarded him a copy of the requests that she had received.  (See 12, above). 

 

62.  It is further found that the process of responding to the complainant’s requests for records referred to by the respondent city attorney in paragraph 57, above, could only advance when the respondent city attorney himself got involved in the process because certain of the requested records were in his possession or under his control. 

 

63.  It is found that the departure of one associate city attorney was not the downfall of the respondent city’s process.  Rather, it is found that it was the failure of the respondent city attorney to arrange for coverage for the matters being handled by the associate city attorney or, in the alternative, to handle such matters himself, that caused the unacceptable delay in the processing of these requests. 

 

64.  It is finally found that the respondent city attorney was aware of the associate city attorney’s practice to intercept public records requests made to public agencies within the respondent city, without allowing the named agencies to receive, acknowledge and/or process the requests themselves.  It is found that, because the respondent city attorney had knowledge of the associate city attorney’s practice, he should have foreseen the possibility that her absence could cause any number of FOI requests in her possession “to fall through the cracks.”  At the very least, it is found that an inquiry by the respondent city attorney into whether the associate city attorney had any FOI requests unfulfilled in her possession, which requests had never been seen by the named public agencies, was in order.  It is found that this inquiry did not occur. 

 

65.  It is found that the respondent city attorney is the custodian or other official directly responsible for the denial of the complainant’s FOI rights.  It is further found that the respondents city attorney’s violation of the FOI Act was without reasonable grounds within the meaning of 1-206(b)(2), G.S.

 

66.  It is found, however, that the imposition of a civil penalty against the respondent director of information technology and the respondent finance director is neither reasonable nor appropriate due to the actions of the associate city attorney, detailed in paragraph 18, above, which actions prevented these respondents from knowing that these records requests had been made by the complainant until September 2010.[5] 

 

67.  Based on the findings in paragraphs 5 and 12, above, it is concluded that the respondent city clerk did not violate the disclosure provisions of the FOI Act.

 

68.  Based on the findings in paragraphs 18 and 66, above, it is concluded that the respondent director of information technology and the respondent finance director did not violate the disclosure provisions of the FOI Act.

 

69.  Based on the conclusions in paragraphs 41 and 45, above, it is further concluded that the requested records are subject to mandatory disclosure.  It is further concluded that the respondent city attorney violated 1-210(a) and 1-212(a), G.S., when he declined to provide such records 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 complaint is dismissed with respect to the respondent city clerk, the respondent finance director, and the respondent director of information technology services. 

2.      The respondent city attorney, working collaboratively with the director of information technology, shall forthwith provide to the complainant, free of charge, a copy of all emails requested by the complainant in paragraph 3 of the findings, above, which emails are located on the respondent city’s back-up tapes created utilizing the Current Software.  The respondent city attorney shall provide these emails to the complainant on CDs. 

3.      The respondent city attorney shall, within twenty days of the notice of final decision in this matter, present the complainant with an estimate from a data recovery service to restore the back-up tapes created utilizing the Previous Software into a readable, searchable medium.  The respondent city attorney shall search the back-up tapes, free of charge, for emails requested by the complainant in paragraph 3 of the findings, above.  Upon locating the responsive emails, the respondent city attorney shall provide all responsive emails to the complainant, free of charge, on CDs. 

4.      Henceforth, the respondent shall strictly comply with the provisions of 1-210(a), and 1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 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:

 

Nicholas Novia

c/o Mark Dumas, Esq.

Crumbie Law Group, LLC

280 Trumbull Street, 21st Floor

Hartford, CT 06103

 

Adam Heller, Director, Information

Technology Services, City of Bridgeport;

Michael Feeney, Finance Director, City of

Bridgeport; Fleeta Hudson, City Clerk,

City of Bridgeport; Mark Anastasi, City

Attorney, City of Bridgeport; and City of

Bridgeport

c/o Edmund F. Schmidt, Esq.

Assistant City Attorney

Office of the City Attorney

999 Broad Street

Bridgeport, CT 06604

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-098/FD/paj/12/20/2010

 

 

                                                                                   

 

 

 

 

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

 



[1] Based on the respondents’ testimony, it is found that Captain Gary Boros retired in 2007. 

[2] While the original case caption in this matter associates Mr. Feeney with the Comptroller’s Office, based on the respondents’ testimony, it is found that Mr. Feeney’s actual title is Finance Director.  Accordingly, the case caption has been amended to reflect this correction.

[3] In fact, at the time of the September 17, 2010 contested case hearing, the respondents testified that they had already obtained two separate estimates from data recovery services to restore the back-up tapes.  The better of the two estimates put the cost of restoring the data on the back-up tapes pertaining to the Previous Software at less than $500.00.  In addition, the data recovery service agreed not to bill the respondent city for the restoration until it determined that it could actually restore the back-up tapes into a readable, searchable medium. 

[4] The respondents also claimed that an additional email was exempt under 1-210(b)(2), G.S., because it described an employee’s current involvement in a family law dispute.  The complainant is not challenging the respondents’ assertion of the privacy exemption with regard to this email.

[5] For example, Mr. Heller, the respondent director of information technology, testified at the final contested case hearing held on September 17, 2010 that, prior to that day’s hearing, he had never seen the complainant’s First Request referenced in paragraph 3, above.