FOI: Minutes11162016


TO:                 Freedom of Information Commission
FROM:            Thomas A. Hennick
RE:                 Minutes of the Commission’s regular meeting of
November 16, 2016

DATE:             November 16, 2016


A regular meeting of the Freedom of Information Commission was held on November 16, 2016, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:24 p.m. with the following Commissioners present:
                        
         Commissioner Owen P. Eagan, presiding
         Commissioner Jay Shaw (participated via speakerphone)
         Commissioner Jonathan J. Einhorn
         Commissioner Christopher P. Hankins
         Commissioner Lenny T. Winkler                                            
                                                                                                                                                                                                                      Also present were staff members, Colleen M. Murphy Mary E. Schwind, Victor R. Perpetua, Tracie C. Brown, Lisa F. Siegel, Kathleen K. Ross, Cindy Cannata, and Thomas A. Hennick.

The Commissioners voted, 4-0, to amend the minutes of the Commission’s regular meeting of October 26, 2016. The Commissioners unanimously voted, 4-0, to approve the minutes as amended. Commissioner Einhorn did not participate in this matter.

Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
               
Docket #FIC 2016-0147         Anthony Saia v. Scott Semple, Commissioner, State of

                                            Connecticut, Department of Correction; and State of

                                            Connecticut, Department of Correction
 
The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
 Einhorn did not participate in this matter.


 Docket #FIC 2016-0151         Luis Diaz v. Chief, Police Department, City of Bridgeport; and Police

                                             Department, City of Bridgeport

                  

 The Commissioners voted, 4-0, to approve the Hearing Officer’s Report.
 Commissioner Einhorn did not participate in this matter.


Docket #FIC 2016-0186         Ira Alston v. Scott Semple, Commissioner, State of 
                                            Connecticut, Department of Correction; and State of 
                                            Connecticut, Department of Correction


The Commissioners voted, 4-0, to approve the Hearing Officer’s Report.
 Commissioner Einhorn did not participate in this matter. 

              

Docket #FIC 2016-0270         Ira Alston v. Scott Semple, Commissioner, State of Connecticut,

                                            Department of Correction; and State of Connecticut, Department of

                                            Correction


The Commissioners voted, 4-0, to amend the Hearing Officer’s Report. The
Commissioners voted, 4-0, to approve the Hearing Officer’s Report as amended.* Commissioner
Einhorn did not participate in this matter.


Docket #FIC 2015-794             Andrew Matthews v. Commissioner, State of Connecticut,

                                              Department of Emergency Services and Public Protection; and

                                              State of Connecticut, Department of Emergency Services and

                                              Public Protection

The Commissioners voted, 4-0, to amend the Hearing Officer’s Report. The
Commissioners voted, 4-0, to approve the Hearing Officer’s Report as amended.* Commissioner
Einhorn did not participate in this matter.


Docket #FIC 2015-855            Noelle Bates v. Director, Personnel Department, City of 

                                             Bristol; Personnel Department, City of Bristol; and City of

                                             Bristol


The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               

               
Docket #FIC 2016-0050            Jeremy Shafer and the American Civil Liberties Union v.
                                               Chief, Police Department, City of Bridgeport; Police
                                               Department, City of Bridgeport; and City of Bridgeport

Dan Barrett appeared on behalf of the complainants. Attorney Tyisha Toms appeared
 on behalf of the respondents. The Commissioners voted, 4-0, to approve the Hearing Officer’s
 Report. Commissioner Einhorn did not participate in this matter.


 Docket #FIC 2016-0066            Dan Brechlin and the Meriden Record Journal v. City Council,
                                                City of Meriden; and City of Meriden

Eric Cotton appeared on behalf of the complainants. Attorney Deborah Moore appeared
 on behalf of the respondents. The Commissioners voted, 4-0, to approve the Hearing Officer’s
 Report. The proceedings were recorded digitally. Commissioner Hankins recused himself from
 this matter.


Docket #FIC 2016-0085            Sarah Kaufman v. Commissioner, State of Connecticut,
                                               Department of Revenue Services; and State of Connecticut,
                                               Department of Revenue Services

The Commissioners voted, 4-0, to approve the proposed report. Commissioner Einhorn
 did not participate in this matter.

     
Docket #FIC 2016-0100            Darrell Stancuna v. Commissioner, State of Connecticut,
                                                 Department of Correction; and State of Connecticut,
                                                 Department of Correction

Darrell Stancuna appeared on his own behalf. Attorney James Neil appeared
 on behalf of the respondents. The Commissioners unanimously voted to approve the proposed
 report. The proceedings were recorded digitally.
 
Docket #FIC 2016-0118            Virginia Brown v. Kevin Lembo, Comptroller, Office of 
                                               the Comptroller, State of Connecticut; and Office of the 
                                               Comptroller, State of Connecticut

Virginia Brown appeared on her own behalf.  Assistant Attorney General Phillip Miller
 appeared on behalf of the respondents. The Commissioners unanimously voted to amend the
 Hearing Officer’s Report. The Commissioners unanimously voted to approve the Hearing
 Officer’s Report as amended.*


Docket #FIC 2016-0134            James Torlai v. Commissioner, State of Connecticut,
                                               Department of Emergency Services and Public 
                                               Protection; and State of Connecticut, Department of 
                                               Emergency Services and Public Protection

James Torlai appeared on his own behalf. Assistant Attorney General Stephen Sarnoski
 appeared on behalf of the respondents. The Commissioners unanimously voted to approve the
 Hearing Officer’s Report. The proceedings were recorded digitally.

  Docket #FIC 2016-0224            Anne Manusky v. Commissioner, State of Connecticut, 
                                                  Department of Education; and State of Connecticut,
                                                  Department of Education

Anne Manusky appeared on her own behalf. Assistant Attorney General Ralph Urban
 appeared on behalf of the respondents. The Commissioners unanimously voted to approve the
 Hearing Officer’s Report. The proceedings were recorded digitally.


 Docket #FIC 2016-0229            Susan Mende v. Chairman, State of Connecticut, 
                                                Criminal Justice Commission; and State of 
                                                Connecticut, Criminal Justice Commission

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               


Docket #FIC 2016-0230            Susan Mende v. Executive Director, State of 
                                               Connecticut, Court Administration, Judicial Branch; 
                                               and State of Connecticut, Court Administration,
                                               Judicial Branch

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               

 
Docket #FIC 2016-0239            Jennifer Michel v. Chief, Police Department, Town
                                               of Enfield; Police Department, Town of Enfield; and 
                                               Town of Enfield

The Commissioners voted, 4-0, to amend the Hearing Officer’s Report. The 
Commissioners voted, 4-0, to approve the Hearing Officer’s Report as amended.* Commissioner 
Einhorn did not participate in this matter.


Docket #FIC 2016-0254            Matt and Beth Wage v. Acting General Manager, 
                                               Water Pollution Control Authority, City of 
                                               Bridgeport; Water Pollution Control Authority, 
                                               City of Bridgeport; and City of Bridgeport

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               

         
Docket #FIC 2016-0285            John Murphy v. David Merchant, Mayor, Town of
                                               Plymouth; and Town of Plymouth

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner Einhorn did not participate in this matter.               


Docket #FIC 2016-0314            Loida John-Nicholson v. Chief Executive Officer, State of
                                               Connecticut, University of Connecticut Health Center; and State of
                                               Connecticut, University of Connecticut Health Center

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               


Docket #FIC 2016-0357            Steven Colarossi v. Superintendent of Schools, Norwalk
                                               Public Schools; and Norwalk Public Schools

The Commissioners voted, 4-0, to approve the Hearing Officer’s Report. Commissioner
Einhorn did not participate in this matter.               


               The Commissioners unanimously voted to affirm the decision not to schedule hearings in  Wolfgang Halbig v. Chairman, Board of Education, Newtown Public Schools; and Board of Education, Newtown Public Schools, Docket # FIC 2016-0165 and Consideration of Notice of Decision Not to Schedule in Wolfgang Halbig v. Chairman, Board of Education, Town of Newtown; and Board of Education, Town of Newtown, Docket # FIC 2016-0213. The proceedings were recorded digitally.

                The Commissioners approved the assignment of staff to prepare a proposed final decision upon remand in Docket #FIC 2015-606; Nicholas Romitti v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police.

               Victor R. Perpetua reported on the New Britain Superior Court Memorandum of Decision in John Vivo III vs. Owen P. Eagan et al. dated October 18, 2016. 

               Colleen M. Murphy informed Commissioners that a special meeting could be scheduled in January to relieve possible Hearing Officer Report backlog.

                           The meeting was adjourned at 4:59 p.m.

 ______________                         
Thomas A. Hennick
MINREGmeeting 11162016/tah/11182016



              AMENDMENTS


Docket #FIC 2016-0270            Ira Alston v. Scott Semple, Commissioner, State of Connecticut, 
                                               Department of Correction; and State of Connecticut, 
                                               Department of Correction

The Hearing Officer’s Report is amended as follows:

             3. By letter dated March 24, 2016, POSTMARKED APRIL 1, 2016 and filed on April 4, 2016, the complainant appealed to this Commission alleging that the respondents violated the FOI Act by failing to comply with his records request. The complainant requested the imposition of a civil penalty against the respondent Commissioner.
             
Docket #FIC 2015-794            Andrew Matthews v. Commissioner, State of Connecticut, 
                                             Department of Emergency Services and Public Protection; and 
                                             State of Connecticut, Department of Emergency Services and
                                             Public Protection

The Hearing Officer’s Report is amended as follows:

35.  It is further found that IC 2015-794-108 through 109 are attachments to certain Podgorski records, described in paragraph 34, above, and that such attachments ARE NOT “RECORDS OF AN INVESTIGATION” OF A WHISTLEBLOWER COMPLAINT, AND IT IS THEREFORE CONCLUDED THAT SUCH RECORDS ARE NOT EXEMPT FROM DISCLOSURE, PURSUANT TO §1-210(B)(13), G.S. [were the subject of the legal advice requested.] 

36.  Accordingly, it is concluded that, except for the information described in paragraph 16, above, the portions of the Podgorski records, described in paragraph[s] 34 [and 35], above, are communications protected by the attorney-client privilege.

37.  In addition, after careful inspection of the Podgorski records, it is found that IC 2015-794-003 through 105 are NOT “records of an investigation” of a whistleblower complaint, and it is therefore concluded that such records are NOT exempt from disclosure pursuant to §1-210(b)(13), G.S.

38.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the portions of the Podgorski records, described in paragraphS 16, 35 AND 37, above.

68.  First, the respondents claimed that IC 2015-794-001 through 004, IC 2015-794-010 through 033, and IC 2015-794-035 through 051 are exempt from disclosure pursuant to the attorney-client privilege.  After careful inspection of those in camera records, it is found that IC 2015-794-003; IC 2015-794-010; IC 2015-794-012 through 016; IC 2015-794-019, lines 10-12, 19-38; IC 2015-794-024 through 026; IC 2015-794-027, LINE 10, BEGINNING AFTER THE WORD “TIMES,” THROUGH THE END OF LINE 11, AND LINES 17 THROUGH 37; IC 2015-794-029, line 14, beginning [with] AFTER the word [“As,”] “2008” THROUGH THE END OF LINE 14, AND [up to the word “If,” in] line 15, UP TO THE WORD “IF;” IC 2015-794-030 through 033; [IC 2015-794-035 through 038;] IC 2015-794-040 through 047, lines 12-32; IC 2015-794-049, lines 12-19; and IC 2015-794-051, lines 1-15, are communications (e.g. emails) between attorneys (“in-house” counsel, outside counsel, or assistant attorney general) for the respondent department and several department officials, and attachments thereto.  It is further found that such attorneys were acting in their capacities as legal counsel for the respondent department; the communications were between the attorneys and officials of the respondent department; the communications related to legal advice sought by the officials from the attorneys; and the communications were made in confidence.  It is also found that the attachments were the subject of the legal advice sought.
74.  The respondents claimed that IC 2015-794-012 through 017, IC 2015-794-023 through 026, IC 2015-794-033 through 042, IC 2015-794-046, IC 2015-794-047, IC 2015-794-049, IC 2015-794-050, and IC 2015-794-053 through 056, are exempt from disclosure pursuant to the attorney-client privilege.  After careful inspection of those in camera records, it is found that IC 2015-794-012, lines 5-6, 13-19, 26-29; IC 2015-794-013 through 015; IC 2015-794-16, LINES 1-27; IC 2015-794-023; IC 2015-794-025; IC 2015-794-026; IC 2015-794-033, LINES 12-27; IC 2015-795-034, LINES 8-9; IC 2015-794-035 through 036; IC 2015-794-037, lines 35-37; IC 2015-794-038, lines 1-2; IC 2015-794-039, lines 10, 16-18, 26-38; IC 2015-794-041, lines 6, 12-28; IC 2015-794-042, lines 17-21; IC 2015-794-046, lines 6-7, 13-32; IC 2015-794-047, LINES 26-30; IC 2015-794-049; IC 2015-794-050; IC 2015-794-053; IC 2015-794-054, [lines 29-36,] AND IC 2015-794-056 are communications (e.g. emails) between attorneys (“in-house” counsel, outside counsel, or assistant attorney general) for the respondent department and several department officials.  It is further found that such attorneys were acting in their capacities as legal counsel for the respondent department; the communications were between the attorneys and officials of the respondent department; the communications related to legal advice sought by the officials from the attorneys; and the communications were made in confidence.  

78.  It is found, however, that the respondents did not offer any evidence to prove the applicability of §1-210(b)(4), G.S.[, to such records, and such applicability is not evident on the face of such records.]

90.  The respondents claimed that IC 2015-794-001 through 005, IC 2015-794-018 through 025, and IC 2015-794-029 through 118, are exempt from disclosure pursuant to the attorney-client privilege.  After careful inspection of those records, it is found that IC 2015-794-001; IC 2015-794-004, lines 12-16; IC 2015-794-005, lines 1-2, 8-19; IC 2015-794-018 THROUGH 020;  IC 2015-794-022; IC 2015-794-023; IC 2015-794-033; IC 2015-794-034, lines 7-9, 18-35; IC 2015-794-035 THROUGH 037; IC 2015-794-042; IC 2015-794-044 through 059; IC 2015-794-064, LINES 12-13, 26, 32-34; IC 2015-794-065; IC 2015-794-067, LINES 30-31; IC 2015-794-069; IC 2015-794-070; [IC 2015-794-072 through] IC 2015-794-073, LINES 13-14; IC 2015-794-075, LINES 14-15; IC 2015-794-078; IC 2015-794-080 through 081; IC 2015-794-083; [IC 2015-794-099;] IC 2015-794-101, LINES 17-18 UP TO THE WORD “I”, AND LINES 25-32; IC 2015-794-102; IC 2015-794-104 through [IC 2015-794-]107, lines 15-24; IC 2015-794-108, lines [6,]13-22; IC 2015-794-[109]110 through 111; and IC 2015-794-[114;] 115, LINES 8-9; IC 2015-794-116; and IC 2015-794-118, are communications (e.g. emails) between attorneys (“in-house” counsel, outside counsel, or assistant attorney general) for the respondent department and several department officials, and attachments thereto.  It is further found that such attorneys were acting in their capacities as legal counsel for the respondent department; the communications were between the attorneys and officials of the respondent department; the communications related to legal advice sought by the officials from the attorneys; and the communications were made in confidence.  It is also found that the attachments were the subject of the legal advice sought.

91.  With regard to IC 2015-794-[001,] 039, 040, 041, and 112, it is found that such records are emails AND ATTACHMENTS that include recipients or senders whom the respondents failed to prove were “attorneys” or “clients,” (nor are these facts evident from the records themselves), and that therefore, the respondents failed to prove such communications are protected by the attorney-client privilege.

97.  With regard to the claim that certain Hellier 2006-2008 records are exempt from disclosure pursuant to the attorney client privilege, it is found, after careful inspection of such records, that the following are communications (e.g. emails) between attorneys (“in-house” counsel, outside counsel, or assistant attorney general) for the respondent department and several department officials, and attachments thereto.  It is further found that such attorneys were acting in their capacities as legal counsel for the respondent department; the communications were between the attorneys and officials of the respondent department; the communications related to legal advice sought by the officials from the attorneys; and the communications were made in confidence:  IC 2015-794-001 through 008; IC 2015-794-011 through [013; IC 2015-794-014 through] 020; IC 2015-794-022 through IC 2015-794-024; IC 2015-794-029 through 045; IC 2015-794-051 through 057; IC 2015-794-059; IC 2015-794-066; IC 2015-794-067; [IC 2015-794-073] IC 2015-794-074 through 076; IC 2015-794-077, lines 6, 12, 19-23; IC 2015-794-078 through 081; IC 2015-794-092 [IC 2015-794-093] through 118; IC 2015-794-121, lines [23] 24-38; IC 2015-794-123 THROUGH [; IC 2015-794-124; IC 2015-794-125; IC 2015-794-]126; IC 2015-794-140 through 144[145]; IC 2015-794-146 THROUGH [IC 2015-794-148, lines 27-29; IC 2015-794-]149 [, lines 19-21]; IC 2015-794-232, line 27, AFTER THE WORD “WELL,” UP TO THE WORD “I,” IN LINE 29[, the portion in parentheses only]; IC 2015-794-234, line 12, from AFTER the word “re:,” through the end of line 18; IC 2015-794-235 through 237; IC 2015-794-242; IC 2015-794-244, lines 11-15; IC 2015-794-245; IC 2015-794-265; IC 2015-794-266, lines 11-13, 21-27;  IC 2015-794-267 through [276]277; IC 2015-794-281; IC 2015-794-285; IC 2015-794-287; IC 2015-794-290; IC 2015-794-291, lines 5-7; IC 2015-794-295 through 300;  IC 2015-794-302; [IC 2015-794-303] IC 2015-794-310 through IC 2015-794-313; IC 2015-794-[315-315 through] 322; IC 2015-794-324 [through IC 2015-794-329]; IC 2015-794-327 THROUGH 329; IC 2015-794-346 through 353; IC 2015-794-354, LINES 11-12; IC 2015-794-355 THROUGH 357; and  IC 2015-794-364, lines 10-15.  It is also found that the attachments were the subject of the legal advice sought. 
Minutes, Regular Meeting, November 16, 2016
Page 9

98.  With regard to IC 2015-794-147, AND IC 2015-794-289, it is found that such records are emails that include recipients or senders whom the respondents failed to prove were “attorneys” or “clients,” (nor are these facts evident from the records themselves), and that therefore, the respondents failed to prove such communications are protected by the attorney-client privilege.

101.  Finally, the respondents claim that IC 2015-794-130 THROUGH 132, AND IC 2015-794-359 through 363 are exempt from disclosure pursuant to §1-210(b)(3)(H), G.S. 

102.  After careful inspection of IC 2015-794-130 THROUGH 132, AND IC 2015-794-359 through 363, however, it is concluded that such records were not compiled in connection with the detection or investigation of crime.  It is therefore concluded that such records are not exempt from disclosure pursuant to §1-210(b)(3)(H), G.S.


Docket #FIC 2016-0118            Virginia Brown v. Kevin Lembo, Comptroller, Office of 
                                               the Comptroller, State of Connecticut; and Office of the 
                                               Comptroller, State of Connecticut

The Hearing Officer’s Report is amended as follows:

15. It is found that the delay in providing the records was neither intentional nor willful, NOR
WITHOUT REASONABLE GROUNDS
but rather was the result of an honest mistake, for which the respondents have apologized.

Docket #FIC 2016-0239            Jennifer Michel v. Chief, Police Department, Town
                                               of Enfield; Police Department, Town of Enfield; and 
                                               Town of Enfield

           The Hearing Officer’s Report is amended as follows:

      The above-captioned matter was scheduled to be heard as a contested case on September 7, 2016 at 11:00 a.m., at which time the respondents appeared, but the complainant did not appear to prosecute the case.  The hearing officer notes that counsel for the respondents appeared with a witness, Deputy Police Chief Gary Collins, who provided brief testimony on the record. SUBSEQUENTLY, BY E-MAIL DATED NOVEMBER 10, 2016, THE COMPLAINANT WITHDREW HER COMPLAINT IN THIS MATTER. THE COMMISSION TAKES ADMINISTRATIVE NOTICE OF SUCH WITHDRAWAL.
 
      The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

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





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