TO:                  Freedom of Information Commission

 

FROM:            Mary E. Schwind

 

RE:                  Minutes of the Commission’s regular meeting of February 23, 2011

           

 

A regular meeting of the Freedom of Information Commission was held on February 23, 2011, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:04 p.m. with the following Commissioners present:

            

             Commissioner Norma E. Riess, presiding

             Commissioner Sherman D. London

             Commissioner Owen P. Eagan

             Commissioner Amy J. LiVolsi      

                                                                                  

Also present were staff members Eric V. Turner, Clifton A. Leonhardt, Tracie C. Brown, Lisa F. Siegel, Kathleen K. Ross, Paula S. Pearlman, Valicia D. Harmon, Cindy Cannata and, Mary E. Schwind.

                    

 

            Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.

 

 

            The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of February 9, 2011.  

                                   

            

Docket #FIC 2010-169        Raymond Cerilli v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; State of Connecticut, Department of Correction; Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

                                            

              Raymond Cerilli participated via speakerphone.  Attorney Nicole Anker appeared on behalf of the Department of Correction respondents.  Assistant Attorney General Donald Green appeared on behalf of the University of Connecticut Health Center respondents.  The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then unanimously voted to adopt the Hearing Officer’s Report as amended.*  The proceedings were recorded digitally.

 

 

Docket #FIC 2010-256        Raymond Cerilli v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; State of Connecticut, Department of Correction; Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

                                            

              Raymond Cerilli participated via speakerphone.  Attorney Nicole Anker appeared on behalf of the Department of Correction respondents.  Assistant Attorney General Donald Green appeared on behalf of the University of Connecticut Health Center respondents.  The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then unanimously voted to adopt the Hearing Officer’s Report as amended.*  The proceedings were recorded digitally.

 

 

Docket #FIC 2010-399        Raymond Cerilli v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; and State of Connecticut, Department of Correction

                                            

              Raymond Cerilli participated via speakerphone.  Attorney Nicole Anker appeared on behalf of the respondents.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.  The proceedings were recorded digitally.

 

Docket #FIC 2010-179        Carnell Hunnicutt, Sr. v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction

                                            

              Carnell Hunnicutt, Sr., participated via speakerphone.  Assistant Attorney General Steven Strom appeared on behalf of the respondents.  The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then voted 3-1 to adopt the Hearing Officer’s Report as amended (Commissioner LiVolsi in opposition).*  The proceedings were recorded digitally.

 

 

Docket #FIC 2010-182        Norman Gaines v. Joseph Gaudett, Acting Chief, Police Department, City of Bridgeport; and Police Department, City of Bridgeport

                                            

              Norman Gaines participated via speakerphone.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

 

 

Docket #FIC 2010-132        Jim Moore and the Waterbury Republican American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education

 

              Attorney Tara Shaw appeared on behalf of the complainants.  Attorney Martin  Gould appeared on his own behalf as a member of the respondent panel.  Assistant Attorney General Jane Comerford appeared on behalf of the respondent department.  The Commissioners unanimously voted to amend the Hearing Officer’s Report and then unanimously voted to adopt the Hearing Officer’s Report as amended and corrected.*

 

 

Docket #FIC 2010-133        Michelle Tuccitto Sullo and the New Haven Register v. Mayor, Town of Shelton; and Town of Shelton

                                            

             Attorney Ramon Sous appeared on behalf of the respondents.  The Commissioners unanimously voted to amend the Hearing Officer’s Report and then unanimously voted to adopt the Hearing Officer’s Report as amended.* 

 

 

Docket #FIC 2010-166        Daniel R. Hedges v. Chief Police Department, Town of Madison; and Police Department, Town of Madison

                                            

             Attorney Edmond Clark appeared on behalf of the complainant.  Attorney Michelle Devlin-Long appeared on behalf of the respondents.  The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*

 

 

Docket #FIC 2010-171           Diane Krahm v. First Selectman, Town of Fairfield; Chief, Police Department, Town of Fairfield; Police Department, Town of Fairfield; and Town of Fairfield

                                            

               The Commissioners unanimously voted to adopt the Hearing Officer’s Report, and subsequently unanimously voted to reopen the matter.  Attorney Charles Kurmay appeared on behalf of the complainant.  The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then unanimously voted to adopt the Hearing Officer’s Report as amended and corrected.* 

 

 

Docket #FIC 2010-174        Joao Godoy v. Dianna Mann, Chairperson, Ledyard Fire Board; Ledyard Fire Board; Jeffrey Gaccione, Deputy Chief, Ledyard Fire Company; and Ledyard Fire Company

                                            

                The Commissioners unanimously voted to adopt the Hearing Officer’s Report as corrected.* 

 

 

Docket #FIC 2010-180        Alaine Griffin and the Hartford Courant v. Brian Murphy, Commissioner, State of Connecticut, Department of Correction; Joan Ellis, Administrator, State of Connecticut, Department of Correction, Freedom of Information Office; and State of Connecticut, Department of Correction

                                            

             Attorney Amy Markham appeared on behalf of the complainants.  Assistant Attorney General Steven Strom appeared on behalf of the respondents.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

 

 

Docket #FIC 2010-245        Kathryn Fetchick v. Board of Education, Newtown Public Schools

                                            

             Kathryn Fetchick appeared on her own behalf.  The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then unanimously voted to adopt the Hearing Officer’s Report as amended and corrected.*  The proceedings were recorded digitally. 

 

 

Docket #FIC 2010-282        David N. Rosen v. Department of Human Resources, City of New Haven; and City of New Haven

 

                The Commissioners unanimously voted to amend the Hearing Officer’s Report, and then unanimously voted to adopt the Hearing Officer’s Report as amended.* 

 

 

         Mary E. Schwind reported on pending appeals.

 

         Eric V. Turner reported on legislation.

 

 

                The meeting was adjourned at 5:06 p.m.

 

 

 

_________________

Mary E. Schwind

 

 

 

 

 

*SEE ATTACHED FOR AMENDMENTS AND CORRECTIONS

MINREGmeeting 02232011/MES/02252011

 

 

 

 

 

 

 

AMENDMENTS AND CORRECTIONS

 

 

Docket #FIC 2010-169        Raymond Cerilli v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; State of Connecticut, Department of Correction; Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

                                            

             The Hearing Officer’s Report is amended by deleting paragraphs 9 through 18 of the findings and adding a new paragraph 9, as follows:

 

            [9. The respondents claim that without the complainant’s signed authorization, the Health Insurance Portability and Accountability Act (“HIPAA”), 42 USC 201 et seq., did not permit them to provide the complainant with copies of his medical records.]

 

            [10.  Federal regulation 45 C.F.R. 164.524(a), pertaining to HIPAA, provides in relevant part:

 

Except as otherwise provided in paragraph (a)(2) or (a)(3) of

this section, an individual has a right of access to inspect and obtain a copy of protected health information about the individual[.]]

 

            [11 “Protected health information” is defined as “individually identifiable health information … [t]ransmitted or maintained in any … form or medium.”  45 C.F.R. 160.103. ]

 

            [12. It is found that the complainant’s medical records are “protected health information” within the meaning of HIPAA. ]

 

            [13. Paragraph (a)(2) and (a)(3) of 45 C.F.R. 164.524(a), provides:

 

(2) A covered entity may deny an individual access without providing the individual an opportunity for review, in the following circumstances…
    
    (ii) A covered entity that is a correctional institution or a covered health care provider acting under the direction of the correctional institution may deny, in whole or in part, an inmate's request to obtain a copy of protected health information, if obtaining such copy would jeopardize the health, safety, security, custody, or rehabilitation of the individual or of other inmates, or the safety of any officer, employee, or other person at the correctional institution or responsible for the transporting of the inmate.

 

(3) A covered entity may deny an individual access, provided that the individual is given a right to have such denials reviewed, as required by paragraph (a)(4) of this section, in the following circumstances:
 
   (i) A licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person;
 
    (ii) The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person; or
 
    (iii) The request for access is made by the individual's personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person. ]

 

            [14.  Covered entity “means … a health care provider.”  45 C.F.R. 160.103. ]   

 

            [15.  It is found that the respondents are a covered entity or a covered health care provider acting under the direction of a correctional institution, within the meaning of HIPAA, 45 C.F.R. 164.524(a). ] 

 

            [16.  It is found that the respondents did not claim that paragraph (a)(2) and (a)(3) of 45 C.F.R. 164.524(a) excused them from their duty to provide the complainant with access to his medical records.  It is further found that an individual’s refusal to sign a proscribed form is not one of the exceptions, described in paragraph (a)(2) or (a)(3) of 45 C.F.R. 164.524, that permits a health care provider to deny an individual access to his or her medical records. ]

 

            [17.  It is concluded that the complainant’s refusal to sign the respondents’ form did not relieve the respondents of their obligation to provide the complainant with access to his medical records. ]

 

            [18.  It is concluded, therefore, that the respondents violated the FOI Act by failing to provide the complainant with access to his medical records.]

 

9.  IT IS FOUND THAT, FOLLOWING THE HEARING IN THIS MATTER, THE COMPLAINANT SIGNED A WRITTEN AUTHORIZATION FOR DISCLOSURE OF HIS MEDICAL RECORDS TO HIMSELF AND, CONSEQUENTLY, THE RESPONDENTS PROVIDED SUCH COPIES TO THE COMPLAINANT.

 

 

            The order in the Hearing Officer’s Report is amended as follows:

 

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

 

[1. Forthwith, the respondents shall provide the complainant with access to his medical records. ]

 

            [2. Henceforth, the respondents shall strictly comply with the requirements of 1-210(a) and 1-212(a), G.S.]

 

1.       THE COMPLAINT IS DISMISSED.

 

                                                                       

Docket #FIC 2010-256        Raymond Cerilli v. Warden, State of Connecticut, Department of Correction, MacDougall-Walker Correctional Institution; State of Connecticut, Department of Correction; Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care

 

            The Hearing Officer’s Report is amended by deleting paragraphs 14 through 23 of the findings and adding a new paragraph 14, as follows:

 

[14. CMHC claims that without the complainant’s signed authorization, the Health Insurance Portability and Accountability Act (“HIPAA”), 42 USC 201 et seq., did not permit them to provide the complainant with copies of his medical records. ]

 

            [15.  Federal regulation 45 C.F.R. 164.524(a), pertaining to HIPAA, provides in relevant part:

 

Except as otherwise provided in paragraph (a)(2) or (a)(3) of this section, an individual has a right of access to inspect and obtain a copy of protected health information about the individual[.]]

 

            [16. “Protected health information” is defined as “individually identifiable health information … [t]ransmitted or maintained in any … form or medium.”  45 C.F.R. 160.103. ]

 

            [17.  It is found that the complainant’s medical records are “protected health information” within the meaning of HIPAA. ]

 

            [18.  Paragraph (a)(2) and (a)(3) of 45 C.F.R. 164.524(a), provides:

 

(2) A covered entity may deny an individual access without providing the individual an opportunity for review, in the following circumstances…
    
    (ii) A covered entity that is a correctional institution or a covered health care provider acting under the direction of the correctional institution may deny, in whole or in part, an inmate's request to obtain a copy of protected health information, if obtaining such copy would jeopardize the health, safety, security, custody, or rehabilitation of the individual or of other inmates, or the safety of any officer, employee, or other person at the correctional institution or responsible for the transporting of the inmate.

 

(3) A covered entity may deny an individual access, provided that the individual is given a right to have such denials reviewed, as required by paragraph (a)(4) of this section, in the following circumstances:
 
   (i) A licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person;
 
    (ii) The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person; or
 
    (iii) The request for access is made by the individual's personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person. ]

 

            [19.  Covered entity “means … a health care provider.”  45 C.F.R. 160.103. ] 

 

            [20.  It is found that CMHC  is a covered entity or a covered health care provider acting under the direction of a correctional institution, within the meaning of HIPAA, 45 C.F.R. 164.524(a). ] 

 

            [21.  It is found that CMHC did not claim that paragraph (a)(2) and (a)(3) of 45 C.F.R. 164.524(a) excused them from their duty to provide the complainant with access to his medical records.  It is further found that an individual’s refusal to sign a proscribed form is not one of the exceptions, described in paragraph (a)(2) or (a)(3) of 45 C.F.R. 164.524, that permits a health care provider to deny an individual access to his or her medical records. ]

 

            [22.  It is concluded that the complainant’s refusal to sign CMHC’s form did not relieve CMHC of its obligation to provide the complainant with access to his medical records. ]

 

            [23.  It is concluded, therefore, that CMHC violated the FOI Act by failing to provide the complainant with access to his medical records.]

 

14.  IT IS FOUND THAT, FOLLOWING THE HEARING IN THIS MATTER, THE COMPLAINANT SIGNED A WRITTEN AUTHORIZATION FOR DISCLOSURE OF HIS MEDICAL RECORDS TO HIMSELF AND, CONSEQUENTLY, THE RESPONDENTS PROVIDED SUCH COPIES TO THE COMPLAINANT.

 

 

            The order in the Hearing Officer’s Report is amended as follows:

 

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

 

1.      The complaint [against DOC] is dismissed.

 

            [2. Forthwith, the respondent CHMC shall provide the complainant with access to his medical records, if it has not already done so.]

 

 

Docket #FIC 2010-179        Carnell Hunnicutt, Sr. v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction

 

The Hearing Officer’s Report is amended as follows:

 

            [19. It is concluded, therefore, that the respondents violated the disclosure requirements of the FOI Act by relying on AD 10.7 in refusing to provide to the complainant the records that DAS sent to him at Northern Correctional Institution.]

 

            19. [20.] Although the respondents did not claim any exemption pursuant to the FOI Act, 1-210(b)(18), G.S., provides in relevant part that nothing in the FOI Act shall require the disclosure of:

 

Records, the disclosure of which the Commissioner of Correction . . . 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 . . .

 

            20. [21.] It is found that the respondents rejected the records sent by DAS only because such records contained the first names of correctional officers. 

 

            21. [22.] It is found that the respondents believe that disclosure of the first names of correctional officers would make it easier to contact officers outside of the workplace, thus endangering the safety of staff and their families.

 

            22. [23.] The respondents cite Curt Rivard v. Lauren Powers, Freedom of Information Officer and Deputy Warden, State of Connecticut, Northern Correctional Institution, Department of Correction; and State of Connecticut, Department of Correction; Docket #FIC2009-[446] 466, which found that the first names of correctional officers were exempt from mandatory disclosure to inmates.

 

            23. [24.] The complainant contends, credibly, that he requested the first names solely to accurately identify certain correctional officers in order to file grievances and other legal proceedings against specific staff members. 

 

            24. [25.] It is found that on November 12, 2009, the respondents’ deputy warden for Northern Correctional Institution provided the first names of five other correctional officers, in response to a different request by the complainant pursuant to the FOI Act on September 11, 2009.  It is found that on at least one other occasion, the respondents provided the first names of correctional officers in response to a request by an inmate pursuant to the FOI Act.

 

            [26. Under the facts of this case, it is found that the respondents failed to prove that 1-210(b)(18), G.S., exempted the first names from disclosure.]

 

            25.  NEVERTHELESS, IT IS FOUND THAT THE COMMISSIONER OF CORRECTION HAD REASONABLE GROUNDS TO BELIEVE THAT DISCLOSURE OF THE FIRST NAMES OF THE EMPLOYEES, AS REQUESTED BY THE COMPLAINANT, MAY RESULT IN A SAFETY RISK, WITHIN THE MEANING OF 1-210(b)(18), G.S.

 

            26. [27.]  It is further found that the respondents provided no evidence that they believed disclosure of the remainder of the information in the records requested by the complainant (i.e., the positions held and job sites of correctional officers at Northern Correctional Institution) may create a safety risk.  IT IS FURTHER FOUND THAT THE RESPONDENTS DO NOT OBJECT TO DISCLOSURE OF SUCH INFORMATION.

 

            [28. It is found, therefore, that the respondents failed to prove that 1-210(b)(18), G.S., exempted such information from disclosure. ]

 

            [29.  Accordingly, it is concluded that the respondent violated the FOI Act by failing to provide the records sent by DAS to the complainant in a prompt manner.]

 

27.  ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENTS VIOLATED THE FOI ACT BY FAILING TO PROVIDE THE RECORDS DESCRIBED IN PARAGRAPH 26, ABOVE, TO THE COMPLAINANT IN A PROMPT MANNER.

 

            28. [30.] At the hearing in this matter, the complainant requested the imposition of a civil penalty against the respondents.  Section 1-206(b)(2), G.S., 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.

 

            29. [31.] It is found that the respondents denied the complainant’s rights under the FOI Act without reasonable grounds.  Nevertheless, it is found that the custodian or other official directly responsible for the denial has not been given an opportunity to be heard concerning the imposition of a civil penalty, and the Commission declines to hold such hearing. 

 

            30. [32.] The Commission in its discretion declines to impose a civil penalty in this matter.

 

Paragraph 2 of the order in the Hearing Officer’s Report is amended as follows:

 

2.       Upon receipt of such records from DAS, the respondents shall forthwith [provide them] REDACT THE FIRST NAMES OF CORRECTIONAL OFFICERS AND PROVIDE THE REMAINDER without redaction to the complainant, pursuant to their obligations under the FOI Act.

 

 

Docket #FIC 2010-132        Jim Moore and the Waterbury Republican American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education

 

                  The opening paragraph of the Hearing Officer’s Report is corrected as follows:

 

The above-captioned matter was heard as a contested case on June 1, 2010, at which time the hearing was continued until the Department of Education was added as a party. The matter was then heard as a contested case on November 23, 201[1]0, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            Paragraphs 19 and 20 of the findings in the Hearing Officer’s Report are deleted and subsequent paragraphs are renumbered accordingly, as follows:

 

            [19.  The respondent Department of Education moved to dismiss the complaint on the grounds that the January 30, 2010 arbitration proceeding is not a meeting of the Department of Education, citing Williams v. State of Connecticut Office of labor Relations, Docket #FIC 2004-178.  The Commission has been unable to find any case with that docket number or that name.]

 

            [20.  However, because the respondent arbitration panel is a committee of the respondent Department of Education, it is concluded that the Department of Education is a proper party.  If the Department of Education believes it has not interest in this dispute, it will not be affected by the decision, and its designation as a party cannot prejudice or harm it. ]

 

19. [21.]  The respondent Department of Education maintains that the January 30, 2010 hearing is not a “meeting” because the arbitrators are chosen by the parties, because the fees of the arbitrators are paid for by the parties to the arbitration; and because the arbitrators are not agents of the Department of Education.

 

20. [22.]  However, it is concluded that the January 30, 2010 hearing is a “hearing or other proceeding” of the respondent arbitration panel, and the fact that the panel has some independence from the Department of Education does not take its hearings outside of 1-200(2), G.S.

 

21. [23.]  Both respondents maintain that the January 30, 2010 hearing of the arbitration panel constitutes “strategy and negotiation with respect to collective bargaining,” and therefore is an exception to the definition of “meeting” in 1-200(2), G.S.

 

22. [24.] In Glastonbury Education Association, above, our Supreme Court construed the “strategy and negotiation with respect to collective bargaining” language in 1-200(2), G.S.,  to exclude from the term “meeting” only those parts of collective bargaining sessions that relate specifically to “strategy or negotiations,” rather than to collective bargaining proceedings in their entirety.  Because the Commission in that case had concluded that the entirety of an arbitration hearing should have been open to the public, including those parts that related specifically to “strategy and negotiations,” the Court “postpone[d] to another day questions concerning the validity of a more narrowly tailored FOIC order that requires open hearings only with respect to evidentiary presentations and permits executive sessions for discussion and argument about the contents of the parties’ last best offers.”  Id. at 718

 

            23. [25.]  The Glastonbury court did provide some guidance in distinguishing between discussion and argument about last best offers, which it concluded constituted “strategy and negotiations,” and the evidentiary portions of the proceedings, which it concluded did not fall within that meeting exclusion.

 

            24. [26.]  First, the Glastonbury court concluded that the actual presentation of last best offers by the parties sufficiently resembles negotiations, despite the fact that they occur during a proceeding denominated as “arbitration,” to be excluded from the “meeting” requirements of the FOI Act.  Id. at 717.           

 

25. [27.]  Second, the Glastonbury court  at 717-718 observed that the Teacher Negotiations Act “permits each party, in its presentations to the arbitral board, ‘to submit all relevant evidence, to introduce relevant documents and written material, and argue on behalf of its last best offer.’ [Citation omitted.] In aid of this evidentiary process, the arbitrators have the ‘power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses.’ [Citation omitted.]  Thus, the arbitration hearing also provides an opportunity for the parties to create an evidentiary record on which the arbitrators can rely in making their final determination of any issues left unresolved.” [Emphasis added.]

 

            26. [28.]  Third, the Glastonbury court noted that the TNA “specifically contemplates the presentation of certain financial data.  General Statutes 10-153fc)(2) provides in relevant part: ‘At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority.” Id., n. 9.  This financial data would be contained in the evidentiary record.

 

27. [29.]  Finally, the Commission is guided by the Glastonbury court’s analysis of the policy underlying its conclusion that only the “strategy and negotiations” portions of an arbitration hearing fall within the statutory exclusion contained in 1-200(2):

 

 Inquiry into the scope of the statutory exclusion for collective bargaining contained in 1-18a(b) [now 1-200(2)] must commence with the recognition of the legislature's general commitment to open governmental proceedings. "The overarching legislative policy of the FOIA is one that favors 'the open conduct of government and free public access to government records.' " [Citations omitted.]  The sponsors of the FOIA understood the legislation to express the people's sovereignty over "the agencies which serve them"; [citations omitted] and this court consistently has interpreted that expression to require diligent protection of the public's right of access to agency proceedings. "Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed." [Citations omitted.]

In light of these principles, the statutory definition of public meetings contained in 1-18a(b) must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings. Accordingly, the language providing that public meetings "shall not include ... strategy or negotiations with respect to collective bargaining" means, as the FOIC maintains, that what is excluded from the term "meeting" is not all collective bargaining, but only "strategy or negotiations" sessions that relate to collective bargaining. This interpretation accords proper respect for the manifest legislative policy expressed in the FOIA. It also comports with its legislative history, which suggests that the collective bargaining exception was understood to provide privacy for "the give-and-take in negotiating sessions of collective bargaining...." (Emphasis added.) 18 H.R.Proc., supra, p. 3896. Had the legislature intended a broader exclusion, it could have excluded "collective bargaining" without limitation, or it could have excluded "collective bargaining, including but not limited to strategy and negotiations relating thereto." See Bloomfield Education Assn. v. Frahm, 35 Conn.App. 384, 389, 646 A.2d 247, cert. denied, 231 Conn. 926, 648 A.2d 161 (1994). It chose neither of these options.

Our interpretation of 1-18a(b) finds further support in related provisions of the FOIA that provide limited exceptions to the public disclosure requirement for those portions of proceedings that relate to strategy or negotiations. In 1-18a(e)(2) [now 1-200(6)], for example, the legislature authorized a public agency to adjourn a meeting into executive session for "strategy and negotiations with respect to pending claims and litigation" to which the agency itself is a party. Pointedly, the legislature did not adopt a more sweeping approach, such as closing the entire meeting, to achieve its purpose of sheltering specified components of the proceedings from public scrutiny. See Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984) (agency's authority under 1-18a[e] to adjourn into executive session for deliberations during proceedings about public employee's job performance does not include authority to conduct evidentiary portion of proceedings in private). Similarly, the legislature has exempted from public disclosure not all documents relating to collective bargaining, but only "records, reports and statements of strategy or negotiations with respect to collective bargaining." General Statutes 1-19(b)(9). Although the legislature's narrowly tailored approach to the FOIA exclusions and exemptions may add a layer of complexity to agency administration, the legislature implicitly has decided that the associated costs are outweighed by the benefits derived from open government.

 

28. [30.]  Guided by the Supreme Court’s analysis, the Commission makes the following findings.

 

29. [31.]  It is found that evidence was presented at the January 30 hearing as to all the statutory factors that the arbitrators are required to consider : the financial capability of the town; the history of the negotiations between the parties prior to arbitration, including the offers and the range of discussion of the issues; the interests and welfare of the employee group; changes in the cost of living; the existing conditions of employment of the employee group and similar groups; and the salaries, fringe benefits and other conditions of employment prevailing in the state labor market.  See 10-153f(c)(4)(A) through (E), G.S. 

 

30. [32.]  It is found that evidence in support of the statutory factors set forth in 10-153f(c)(4), G.S., included tax collections, debt, capital improvement plans, state aid or grants received by the city, what the city was providing as salary increases if any to its municipal employees, what salary increases if any the board of education was presenting to other board of education employees, what was in the interest and welfare of the Torrington teachers in terms of the ability of the board of education to recruit and retain teachers, the cost of living, and what other settlements had been reached in other school districts.

 

31. [33.]  It is found that the evidence presented at the January 30, 2010 hearing was recorded stenographically.

 

32. [34.]  It is found that the parties at the arbitration hearing at issue in this case also presented several “last best offers,” beginning with an “initial last best offer” and concluding with “final last best offers,” and possibly with “interim last best offers” between the two.

 

33. [35.]  It is found that the evidence described in paragraphs [32 and 33] 30 AND 31, above, was in support of the parties’ “last best offers,” but that the evidence was not itself a “last best offer.”

 

34. [36.]  It is also found that negotiation was conducted by the parties out of the presence of the panel chair or the panel as a whole, although each party “caucused” separately with its “own” arbitrator.

 

35. [37.]  It is found that negotiations conducted by the parties out of the presence of the panel chair or the panel as a whole were not stenographically recorded.

 

36. [38.]  It is concluded that the negotiations portion of the January 30, 2010 hearing, conducted off the record away from the panel, and the evidentiary portion of that hearing, conducted on the record in the presence of the panel, were separate.

 

37. [39.]  It is concluded that the evidentiary portion of the January 30, 2010 hearing that was recorded stenographically was not “strategy or negotiations with respect to collective bargaining,” and therefore was a “meeting” within the meaning of 1-200(2), G.S., that was required to be open to the public.

 

38. [40.]  It is therefore concluded that the respondents violated 1-225(a), G.S., by conducting the evidentiary portion of its hearing in private.

 

Docket #FIC 2010-133        Michelle Tuccitto Sullo and the New Haven Register v. Mayor, Town of Shelton; and Town of Shelton

 

Paragraph 2 of the order in the Hearing Officer’s Report is amended as follows:

 

2. Forthwith, the respondents shall provide to the complainants, free of charge, unredacted copies of the requested public records, WITH THE EXCEPTION OF REDACTING THE NAME OF AN EMPLOYEE WHO IS NOT WILLIAM MOONEY

 

 

 

Docket #FIC 2010-166        Daniel R. Hedges v. Chief Police Department, Town of Madison; and Police Department, Town of Madison

                                            

The Hearing Officer’s Report is amended as follows:

 

[14.  It is found that the respondents offered no evidence to prove that the requested witness statements are signed.]

 

14. [15.]  It is also found that a record of a dispatch conversation, while it may contain a recording of an allegation, is not a signed witness statement.

 

15. [16.]  It is concluded that the [requested witness statements and] recorded dispatch conversation [are] IS not exempt from disclosure as  “signed witness statements” within the meaning of 1-210(b)(3)(B), G.S.

 

16. [17.]  The respondents maintain that the allegations against Fox were not corroborated or prosecuted, and that therefore all of the records are exempt from disclosure pursuant to 1-210(b)(3)(G), G.S.

 

17. [18.]  The respondents additionally maintain that allegations can be deemed uncorroborated even where there exist multiple witness statements, citing Peruta v. Chief, Police Department, Town of Wethersfield, Docket #FIC 1999-493. 

 

18. [19.]  The respondents also maintain that if there is no probable cause to prosecute, then the allegations are uncorroborated.

 

19. [20.]  It is found, however, that the number of witness statements itself has little bearing on whether the allegations are corroborated or not.  It is the content of the statements, and any other evidence, that matters, not the number.

 

20. [21. ] It is also found that the statements corroborate the allegation. One witness said that she saw Fox “punching” the passenger, and that the action was “repeated several times.” According to another witness, Fox shoved the passenger’s head violently.

 

21. [22.]  It is also that other evidence tended to contradict the statements of the witnesses.

 

22. [23.]  The Commission has previously observed that “corroborate” means "to strengthen, to add weight or credibility to a thing by additional and confirming facts or evidence,"  "to state facts tending to produce confidence in the truth of a statement made by another,"  "to give increased support to; make more sure or evident."  Hartford Courant et al. v. Department of Public Safety, Docket #FIC 1994-291.  See also State v. McClendon, 199 Conn. 5, 9 (1985) (corroborating evidence is “evidence supplementary to that already given and tending to strengthen or confirm it”).

 

23. [24.]  It is concluded that, while the presence of exculpatory evidence was apparently sufficient to create a lack of probable cause, the allegation was nonetheless strengthened and given some increased support by the two witnesses, even if that corroboration was subsequently considered insufficient.

 

24. [25.]  It is also concluded that the standard of probable cause and the standard of lack of corroboration are different, and that an allegation may be corroborated even if there is not probable cause to believe the allegation.  See, e.g., Cerritelli v. City of Derby, Docket #FIC2008-747.

 

25. [26.]  It is also concluded that the Commission’s construction of 1-210(b)(3)(G), G.S., to take into account corroborating evidence that has been discounted or disregarded by the respondents, is consistent with the policy of our Supreme Court to narrowly construe exceptions to the Freedom of Information Act. Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 188 (1984).

 

26. [27.]  It is therefore concluded that the requested records do not contain uncorroborated allegations, and that the respondents violated 1-210(a), G.S., when they withheld the requested records.

 

 

Docket #FIC 2010-171        Diane Krahm v. First Selectman, Town of Fairfield; Chief, Police Department, Town of Fairfield; Police Department, Town of Fairfield; and Town of Fairfield

 

Paragraph 10 of the findings in the Hearing Officer’s Report is corrected as follows:

 

10.  It is found the complainant, on February 22, 2010, requested that the respondents provide [were] HER with any records from the FOI Commission ordering disclosure, any records indicating her withdrawal of her objection, any records advising the town that it was exempt from the provisions of 1-214(c), G.S., and the oath taken by the chief of police.

 

Paragraph 17 of the findings in the Hearing Officer’s Report is deleted as follows:

 

[17.  In this case, however, the complainant suffered no harm beyond that which would have resulted from the disclosure after an initial timely review of the requested records by the police department.]

 

 

Docket #FIC 2010-174        Joao Godoy v. Dianna Mann, Chairperson, Ledyard Fire Board; Ledyard Fire Board; Jeffrey Gaccione, Deputy Chief, Ledyard Fire Company; and Ledyard Fire Company

 

Paragraph 26 of the findings in the Hearing Officer’s Report is corrected as follows:

 

26.  The Commission takes administrative notice of its record and final decision in Docket #FIC 2009-339, Godoy v. Ledyard Fire Board et al., in which members of the Ledyard Fire Board and Fire Company were also found to HAVE violated the FOI Act by conducting a meeting in a building from which the public was locked out and by requiring the complainant to furnish information about himself as a condition to attending the meeting.

 

 

Docket #FIC 2010-245        Kathryn Fetchick v. Board of Education, Newtown Public Schools

                                            

 

Paragraph 12 of the findings in the Hearing Officer’s Report is corrected as follows:

 

            12.  The complainant claims that what was called “Board Self-Evaluation” on the agenda was instead a criticism of her performance as a member of the respondent BOARD mostly by two of her fellow board members.  It is found that the complainant was surprised by the discussion, having anticipated from the agenda that the executive session would pertain to the board in its entirety.

 

Paragraph 3 of the order in the Hearing Officer’s Report is amended as follows:

 

3.  The respondents are [strongly encouraged] ORDERED to contact Commission staff to schedule an FOI workshop. 

 

 

Docket #FIC 2010-282        David N. Rosen v. Department of Human Resources, City of New Haven; and City of New Haven

 

 

Paragraphs 1 through 38 of the findings of the Hearing Officer’s Report are deleted, and the following paragraph is added after the introductory paragraph:

 

FOLLOWING THE HEARING IN THIS MATTER, THE COMPLAINANT WITHDREW HIS COMPLAINT BY LETTER DATED FEBRUARY 22, 2011.  THE FREEDOM OF INFORMATION COMMISSION TAKES ADMINISTRATIVE NOTICE OF SUCH LETTER.

 

The order in the Hearing Officer’s Report is amended as follows:

 

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

 

            [1. Forthwith, the respondents shall provide the complainant with copies of candidate feedback summaries for all individuals with passing scores on the 2003 Fire Lieutenant and Captain’s Exam, except for redactions as indicated in paragraphs 23, 28 and 34 of the findings of fact.]

 

            [2. Henceforth, the respondent shall strictly comply with the disclosure provisions of 1-210(b), G.S.]

 

1.      BASED ON THE WITHDRAWAL OF THE COMPLAINT, THE COMPLAINT IS DISMISSED.