20110511MRM

TO: Freedom of Information Commission

FROM: Mary E. Schwind

RE: Minutes of the Commission’s regular meeting of May 11, 2011

DATE: May 13, 2011

A regular meeting of the Freedom of Information Commission was held on May 11, 2011, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:06 p.m. with the following Commissioners present:

Commissioner Norma E. Riess, presiding

Commissioner Sherman D. London

Commissioner Owen P. Eagan

Commissioner Amy J. LiVolsi

Commissioner Robert F. Kappes

Also present were staff members, Eric V. Turner, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, 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 upon request.

The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of April 27, 2011.

Docket #FIC 2010-350 Kacey Lewis v. State of Connecticut, Division of Public Defender Services

Kasey Lewis participated via speakerphone. Assistant Attorney General Steven Strom appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2010-497 Kacey Lewis v. Chief, Police Department, City of Waterbury; and Police Department, City of Waterbury

Kasey Lewis participated via speakerphone. Attorney Kevin Daly appeared on behalf of the respondents. The Commissioners unanimously voted to table this matter until the next regular Commission meeting. The proceedings were recorded digitally.

Docket #FIC 2010-391 Jason Casiano v. Seth Mancini, State of Connecticut, Department of Public Safety; Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety

Jason Casiano participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.

Docket #FIC 2010-369 Pamela Walsh v. Chief, Police Department, City of New London; and Police Department, City of New London

Pamela Walsh appeared on her own behalf. Attorney Brian Estep appeared on behalf of the respondents. The Commissioners voted 4-1 to adopt the Hearing Officer’s Report (Commissioner Kappes in opposition). The proceedings were recorded digitally.

Docket #FIC 2010-389 Stephen Singer and the Associated Press v. Commissioner, State of Connecticut, Department of Revenue Services; and State of Connecticut, Department of Revenue Services

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

Docket #FIC 2010-390 Cherlyn Poindexter and Local 3144, New Haven Management and Professional Union v. Civil Service Commission, City of New Haven; and Personnel Director, City of New Haven

The Commissioners unanimously voted to adopt the Hearing Officer’s Report. Subsequently, the complainants appeared. The Commissioners unanimously voted to reopen the matter. From this point, the proceedings were recorded digitally. Cherlyn Poindexter appeared on behalf of the complainants. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners again unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2010-432 Cherlyn Poindexter and Local 3144, New Haven Management and Professional Union v. Director, Department of Human Resources, City of New Haven; and City of New Haven

Cherlyn Poindexter appeared on behalf of the complainants. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners then unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.

Docket #FIC 2010-412 Joseph W. Christiano, III v. Chairman, State of Connecticut, Department of Public Utility Control; Kimberley J. Santopietro, Executive Secretary, State of Connecticut, Department of Public Utility Control; and State of Connecticut, Department of Public Utility Control

Joseph W. Christiano, III appeared on his own behalf. Assistant Attorney General Robert L. Marconi appeared on behalf of the respondents. The Commissioners voted 4-1 to amend the Hearing Officer’s Report (Commissioner Kappes in opposition). The Commissioners then voted 4-1 to adopt the Hearing Officer’s Report as amended (Commissioner Kappes in opposition).* The proceedings were recorded digitally.

Docket #FIC 2010-418 Jon Kores and Kathleen Kores v. Zoning Enforcement Officer, Town of Suffield

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

Docket #FIC 2010-419 Richard Poulton v. Inland Wetlands & Watercourse Commission, Town of East Haven

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

Docket #FIC 2010-420 Derf J. Kleist v. Town Manager, Town of Cheshire; and Town of Cheshire

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

Docket #FIC 2010-444 Matthew A. Reimondo v. Melissa H. Engel, as Member, Town Council, Town of East Hampton; John W. Tuttle, as Member, Town Council, Town of East Hampton; Thomas M. Cordeiro, as Member, Town Council, Town of East Hampton; William G. Devine, as Member, Town Council, Town of East Hampton; Christopher J. Goff, as Member, Town Council, Town of East Hampton; Barbara W. Moore, as Member, Town Council, Town of East Hampton; and Town Council, Town of East Hampton

Attorney Leon Rosenblatt appeared on behalf of the complainant. Attorney Jean D’Aquila appeared on behalf of the respondents. The Commissioners voted 3-2 to amend the Hearing Officer’s Report (Commissioners LiVolsi and Kappes in opposition). The Commissioners then voted 3-2 to adopt the Hearing Officer’s Report as amended (Commissioners LiVolsi and Kappes in opposition).* The proceedings were recorded digitally.

The Commissioners unanimously voted not to schedule a hearing in Docket #FIC 2010-534, Bryant Rollins v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction.

The Commissioners unanimously voted to deny the Motion for Reconsideration dated April 29, 2011 filed by Jose Arcia in Docket #FIC 2010-255, Jose Arcia v. Chief, Police Department, City of Hartford; and Police Department, City of Hartford.

Clifton Leonhardt reported on the Superior Court Memorandum of Decision in Kimberly Albright-Lazzari, et al. v. Colleen Murphy, Connecticut Freedom of Information Commission dated April 21, 2011.

Clifton Leonhardt reported on the Superior Court Memorandum of Decision in Kimberly Albright-Lazzari, et al. v. Colleen Murphy, Connecticut Freedom of Information Commission, et al. dated April 21, 2011.

Eric Turner reported that the Governor has nominated Jay Shaw to the Commission. Mr. Turner and the Commission members thanked Commissioner Kapppes for his service.

Eric Turner reported on legislation.

The meeting was adjourned at 5:10 p.m.

_________________

Mary E. Schwind

*SEE ATTACHED FOR AMENDMENTS

MINREGmeeting 05112011/mes/05132011

AMENDMENTS

Docket #FIC 2010-432 Cherlyn Poindexter and Local 3144, New Haven Management and Professional Union v. Director, Department of Human Resources, City of New Haven; and City of New Haven

Paragraph 9 of the Hearing Officer’s Report is amended as follows:

9. At the hearing in this matter, the respondents informed the hearing officer that they no longer claimed an exemption for the names of the student interns working for the city, and provided the complainants with a list of such names. In addition, at the hearing in this matter, the respondents provided the complainants with a separate list, which included the interns’ names and addresses. However, the respondents continued to maintain that the remainder of the requested information is not entered into their computer database, [such that it could be easily manipulated to create a list fully responsive to the request described in paragraph 2, above.] AND THE RESPONDENTS ARE NOT REQUIRED TO CREATE A LIST RESPONSIVE TO THE REQUEST DESCRIBED IN PARAGRAPH 2, ABOVE.

The Hearing Officer’s Report is amended as follows:

[10. Because the May 25, 2010 request was to the respondent Executive Secretary, the threshold question is whether UI is, to any extent, performing a governmental function, as defined at §1-200(11), G.S.?]

10. [11.] It is found that the General Assembly has mandated that each electric distribution company establish an Energy Conservation and Load Management Fund in order to operate an energy conservation and load management program. Section 16-245m(b), G.S. A statutory assessment on electric utility bills of three mills per kilowatt hour is paid directly into each fund. Section 16-245m(a)(1), G.S. Each electric distribution company proposes a detailed written plan, with different programs and expenditures for different classes of customers. The Department of Public Utility Control (“DPUC”) each year conducts an uncontested docket to audit past performance, and to review and approve a new plan. The DPUC sets the amount of co-payments for various classes of customers. The DPUC appoints the Energy Conservation Management Board to advise the DPUC. Section 16-245m(c) and (d), G.S. Each electric distribution company has its own dedicated staff to supervise the contractors or providers who perform specific energy conservation services. The DPUC authorizes the funds to pay these staffs supervising contractors and providers. The DPUC is in regular, appropriate communication with the electric distribution companies concerning the administration of energy conservation programs.

11. [12.] It is found that UI administers and manages an energy conservation program created by the General Assembly, which program has been authorized by law to be administered or managed by UI.

[13. It is concluded that the General Assembly and the DPUC are each a “public agency”, as defined by §1-200(1), G.S. With reference to the introductory phrase of the definition of “governmental function” at §1-200(11), G.S., it is concluded that UI is engaged in the administration or management of a program of a public agency, which program has been authorized by law to be administered or managed by UI.]

[14. With reference to subsection (A) in the definition of “governmental function” at §1-200(11), G.S., it is concluded that UI receives funding as a result of action by the General Assembly for administering or managing a program. The General Assembly’s occasional diversion of assessment receipts to the state’s general fund underscores the extent to which the funds at issue are similar to tax receipts. Additional monies from other governmental sources, such as federal TARP funds, have been funneled into the Energy Conservation and Load Management Funds.]

[15. With reference to subsection (B) in the definition of “governmental function” at §1-200(11), G.S., it is concluded that the General Assembly delegated its power to regulate the energy conservation and load management programs to the DPUC and that DPUC is involved in and regulates to a significant extent UI’s administration and management of its program. The DPUC’s utilization of an uncontested docket, where the DPUC and UI are authorized to interact informally, demonstrates the necessary “hand in glove” nature of their relationship on behalf of energy conservation.]

[16. With reference to subsection (C) in the definition of “governmental function” at §1-200(11), G.S., it is concluded that UI participates in the formulation of governmental policies or decisions in connection with the administration or management of the program. However, in this case, there was no evidence as to whether or not such policies or decisions of UI bind the DPUC.]

[17. With reference to the last exclusionary sentence in the definition of “governmental function” at §1-200(11), G.S., it is concluded that UI is not engaged in “the mere provision of goods or services to a public agency without the delegated responsibility to administer or manage a program of a public agency”.]

[18. Considering the entire definition of “governmental function” at §1-200(11), G.S., it is concluded that, to the extent UI is operating an energy conservation program, UI is performing a governmental function. No evidence or argument has been presented herein that the FOIA applies to UI in its traditional utility function of providing electric service.]

12. [19.] It is further found that there is no written contract between the General Assembly or the DPUC as the agent for the General Assembly, and UI, as described in §1-218, G.S. It is evident that the statute envisions a written contract: the statute requires that the contract include certain provisions and by its terms indicate that records are subject to the FOIA. Nor is there evidence in the present case of an implied contract or the elements of contract: offer, acceptance and consideration. UI is simply carrying out obligations imposed by law and consideration cannot consist of performing existing legal obligations. In contrast to a contractual setting, the relationship between the DPUC and UI is based upon the model of utility regulation, though with important differences from rate regulation (which utilizes formal contested cases). The regulatory relationship between the DPUC and UI is therefore fundamentally different from the written contracts between DSS and the managed care organizations that were at issue in Docket #FIC 2005-025; Kari A. Hartwig v. Commissioner, State of Connecticut, Department of Social Services; and Docket #FIC 2005-284; Barbara Hunt and Marisol Pratts v. Commissioner, State of Connecticut, Department of Social Services.

13. [20.] It is concluded that UI is not subject to the requirements of §1-218, G.S.

14. [21.] It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., when they failed to provide the requested records to the complainant or to seek to receive the requested records from UI. As a result of this conclusion, no consideration of civil penalties is warranted.

15. [22.] The complainant has ably demonstrated that at present the individual person has little ability to inquire into the details of annual energy conservation expenditures of over $100,000,000, despite the fact that the funds are collected and spent pursuant to state statute and DPUC directive. At present, these expenditures are only subject to such transparency as the DPUC chooses to require. [Because the complainant’s April 5, 2010 complaint was attached to the complaint in this matter, the Commission feels at liberty to note that a renewed records request directly to UI and a new complaint with the Commission would frame the issue of whether UI, to the extent it is operating an energy conservation program, is the “functional equivalent” of a public agency.]

Docket #FIC 2010-419 Richard Poulton v. Inland Wetlands & Watercourse Commission, Town of East Haven

The Hearing Officer’s Report is amended as follows:

[12. It is found that the complainant did not present evidence sufficient to prove that the respondent’s members discussed the order during the recess.]

12. [13.] It is found that the respondent did not discuss a matter over which it has supervision, control, jurisdiction or advisory power during the recess, within the meaning of §1-200(2), G.S., during the recess at issue.

13. [14.] Accordingly, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint.

The findings in the Hearing Officer’s Report are amended as follows:

23. The complainant seeks civil penalties and an order from the Commission declaring the actions of the respondent town council taken at the special meeting null and void. With regard to the complainant’s request for civil penalties, THE COMMISSION DECLINES TO IMPOSE A CIVIL PENALTY. [§1-206(b)(2), G.S., provides in relevant part that:

… 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.]

[24. It is found that the respondents Engel, Tuttle, Cordeiro, Goff, and Moore are the individuals who improperly discussed the complainant’s termination in executive session, as described in paragraph 12, above, over the objection of Ms. Weintraub, and that therefore, the respondents Engel, Tuttle, Cordeiro, Goff, and Moore are the officials directly responsible for the denial of the complainant’s right, created by §§1-200(6) and 1-225(a), G.S, to receive notice of the meeting at which his termination was to be discussed, to request that such meeting be held in public, and to attend and participate in such meeting. It is further found that such denial was without reasonable grounds.]

24. [25.] With regard to the complainant’s request that the Commission declare the actions of the respondent town council null and void, the Commission notes that the action taken by the respondent town council, as it pertains to the complainant, was the vote to authorize the town manager to offer the severance package to the complainant. Because this action benefitted the complainant, and because, as of the date of the hearing in this matter, the complainant had been reinstated to his position as chief of police, the Commission declines to declare the action of the respondent town council null and void.

The orders in the Hearing Officer’s Report are amended as follows:

[1. The respondents Engel, Tuttle, Cordeiro, Goff, and Moore shall forthwith each remit a civil penalty in the amount of $50.00 (fifty dollars) to the Commission.]

1.[2.] Henceforth, the respondents shall strictly comply with §§1-225(a) and 1-231, G.S.

2. THE MEMBERS OF THE RESPONDENT TOWN COUNCIL ARE ORDERED TO CONTACT THE COMMISSION TO SET UP A TRAINING SESSION ON EXECUTIVE SESSION PROCEDURES WITHIN THREE MONTHS OF THE NOTICE OF FINAL DECISION.