FOI: Minutes03062017


TO: Freedom of Information Commission

FROM: Mary E. Schwind

RE: Minutes of the Commission’s Special meeting of March 6, 2017

DATE: March 6, 2017

 
A special meeting of the Freedom of Information Commission was held on March 6, 2017, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:45 p.m. with the following Commissioners present:
                        
             Commissioner Owen P. Eagan
             Commissioner Jay Shaw (participated via speakerphone)
             Commissioner Jonathan J. Einhorn
             Commissioner Matthew Streeter, presiding
             Commissioner Christopher Hankins
             Commissioner Michael Daly
             Commissioner Lenny T. Winkler
             Commissioner Ryan P. Barry

Also present were staff members, Colleen M. Murphy, Paula S. Pearlman, Cindy Cannata, and Mary E. Schwind.

            
Docket #FIC2016-0191     Virginia Brown v. Comptroller, State of Connecticut, Office of the
                                       Comptroller; and State of Connecticut, Office of the Comptroller

Virginia Brown appeared on her own behalf.  The respondents did not appear.   The Commissioners voted 7-0 to amend the Hearing Officer’s Report.   The Commissioners then  voted 7-0 to again amend the Hearing Officer’s Report.    The Commissioners then voted 7-0 to adopt the Hearing Officer’s Report as amended.*   Commissioner Eagan recused himself from participating in this matter.   The proceedings were recorded digitally.

 
The meeting was adjourned at 3:00 p.m.

                                                             ______________                         

Mary E. Schwind
MINSpecmeeting 03062017/mes/03062017


*   See Attached for Amendments

AMENDMENTS



Docket #FIC2016-0191        Virginia Brown v. Comptroller, State of Connecticut, Office of the
                                          Comptroller; and State of Connecticut, Office of the Comptroller

The Hearing Officer’s Report is amended as follows:   

The above-captioned matter was heard as a contested case on October 21, 2016, December 9, 2016 and January 12, 2017, at which times the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The Commission notes that the complainant, who represented herself, did not testify [,] OR call a witness [or cross-examine the respondents’ witness].  IN ADDITION, ALTHOUGH SHE WAS AFFORDED AN OPPORTUNITY TO CROSS-EXAM THE RESPONDENTS’ WITNESS AT THE JANUARY 12, 2017 HEARING, THE COMPLAINANT ELECTED NOT TO DO SO. [keep endnote]

***
SUBSEQUENTLY, AT THE COMMISSION’S FEBRUARY 22, 2017 REGULAR MEETING, LESS THAN TWO WEEKS BEFORE THE STATUTORY EXPIRATION DEADLINE OF THIS MATTER, NEW ARGUMENTS WERE RAISED BY THE PARTIES.  THE COMPLAINANT AND RESPONDENTS HAD AN OPPORTUNITY TO FILE BRIEFS PRIOR TO THE MEETING, BUT ELECTED NOT TO DO SO.  THE COMMISSIONERS UNANIMOUSLY VOTED TO ALLOW THE PARTIES TO FILE BRIEFS BY FRIDAY, FEBRUARY 24, 2017, AND TO CONVENE A SPECIAL MEETING TO FURTHER CONSIDER THIS MATTER.  THE SPECIAL MEETING WAS SCHEDULED FOR MARCH 6, 2017.         


11.  By order dated December 21, 2016, the hearing officer instructed the respondents to submit the records they claimed are exempt from disclosure for in camera inspection, as well as an in camera index.  On December 29, 2016, the respondents submitted unredacted copies of the records responsive to the request at issue, along with multiple indexes, to the Commission.  The respondents separated the in camera records into seven groups of records, with each group identified by the name of an individual, and created a separate in camera index for each such group of records.  On January 3, 2017, the respondents submitted a revised index for one of the seven groups of records.  In addition, at the January 12, 2017 hearing, the complainant narrowed the records at issue and excluded one of the seven groups of records.  The in camera records remaining at issue are identified as follows: 

Doris Vieira (DV):  IC-2016-0191-1 through 62;

Sandra Cady (SC):  IC-2016-0191-1 through 73;
 
Martha Carlson (MC): IC-2016-0191-1 through 905;

Natalie Braswell (NB): IC-2016-0191-1 through 1089;

Brenda Halpin (BH): IC-2016-0191-1 through 1236; and

Kevin Lembo (KL): IC-2016-0191-1 through 1668. 

12.  On the in camera indexes, the respondents indicate that the following attachments/
documents are not exempt from disclosure: 

MC: IC-2016-0191-64 through 93, IC-2016-0191-748;

NB: IC-2016-0191-11 through 18, IC-2016-0191-206 through 280, IC-2016-0191-643 through 843, IC-2016-0191-967 through 1041, IC-2016-0191-1043 through 1072; 

KL:  IC-2016-0191-6 through 49, IC-2016-0191-51 through 62, IC-2016-0191-64 through 68, IC-2016-0191-70 through 72, IC-2016-0191-75 through 83, IC-2016-0191-85 through 121, IC-2016-0191-123 through 132, IC-2016-0191-283 through 323, IC-2016-0191-357 through 517, IC-2016-0191-523 through 625, IC-2016-0191-629 through 633, IC-2016-0191-635 through 709, IC-2016-0191-1538 through 1547, IC-2016-0191-1549 through 1561, IC-2016-0191-1563 through 1578, and IC-2016-0191-1621 through 1664. 
By letter dated December 29, 2016, the respondents represented that any reference in the indexes which states that documents were non-exempt and/or emails were non-exempt means that such documents were provided to the complainant.  To date, no objection has been filed by the complainant regarding such representation.  Accordingly, such records are not at issue and will not be further addressed herein.

13.  On the index for the Brenda Halpin in camera records, the respondents indicate that
IC-2016-0191-42 through 45 and IC-2016-0191-243 through 246 were produced to the complainant.  The respondents also indicate that the attachments contained in IC-2016-0191-1084 through 1127, IC-2016-0191-1135 through 1166, and IC-2016-0191-1181 through 1224,   were produced to the complainant.  Although the respondents did not identify the specific page numbers for such attachments, the Commission notes that the attached documents are contained in IC-2016-0191-1087 through 1127, IC-2016-0191-1137 through 1166, and IC-2016-0191-1184 through 1224.  To date, no objection has been filed by the complainant regarding whether such records were, in fact, provided to her.  Accordingly, such records are not at issue and will not be further addressed herein. 

14.  At the December 9, 2016 hearing in this matter, the respondents indicated that they are not claiming that the “To” “From” “Sent” (date) and “Subject” lines contained in any email submitted for in camera inspection are exempt from disclosure.  

 15.  AT THE FEBRUARY 22, 2017 COMMISSION MEETING, THE COMPLAINANT STATED THAT SHE WAS NOT SEEKING SOCIAL SECURITY NUMBERS OR EMPLOYEE NUMBERS.  ACCORDINGLY, SUCH INFORMATION IS NOT AT ISSUE IN THIS MATTER.  PRIOR TO DISCLOSURE, THE RESPONDENTS SHALL REVIEW THE IN CAMERA RECORDS AND REDACT ANY SOCIAL SECURITY NUMBERS AND EMPLOYEE NUMBERS, WHEREVER SUCH NUMBERS ARE LOCATED. 

[15] 16. On the indexes to the in camera records, the respondents claimed that such records are exempt from disclosure, pursuant to one or more of the following exemptions:  §§1-210(b)(1), 1-210(b)(4), 1-210(b)(9), 1-210(b)(10), and/or 1-210(b)(13), G.S.  IN ADDITION, AT THE FEBRUARY 22ND COMMISSION MEETING, THE RESPONDENTS FOR THE FIRST TIME CLAIMED THAT CERTAIN RECORDS WERE ALREADY DETERMINED BY THE COMMISSION TO BE EXEMPT FROM DISCLOSURE IN A SEPARATE MATTER, AND THAT CERTAIN IN CAMERA RECORDS ARE MEDICAL RECORDS EXEMPT FROM DISCLOSURE.  IN THEIR BRIEF, DATED FEBRUARY 24, 2017, THE RESPONDENTS CLAIMED THAT THE MEDICAL RECORDS ARE EXEMPT PURSUANT TO §§52-146c, 52-146d, 52-146e and 52-146o, G.S.

[16] 17. With regard to the respondents’ claim that certain in camera records are exempt
from disclosure pursuant to §1-210(b)(1), G.S., that statute provides that disclosure is not required of “[p]reliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure.”  Section 1-210(e)(1), G.S., further provides, in relevant part that, notwithstanding the provisions of §1-210(b)(1), G.S., disclosure shall be required of:

[i]nteragency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.

[17] 18. The Supreme Court ruled in Shew v. Freedom of Information Commission, that “the concept of preliminary [drafts or notes], as opposed to final [drafts or notes], should not depend upon...whether the actual documents are subject to further alteration…” but rather “[p]reliminary drafts or notes reflect that aspect of the agency’s function that precede formal and informed decision making....  It is records of this preliminary, deliberative and predecisional process that...the exemption was meant to encompass.”  Shew v. Freedom of Information Commission, 245 Conn. 149, 165 (1998).  In addition, once the underlying document is identified as a preliminary draft or note, “[i]n conducting the balancing test, the agency may not abuse its discretion in making the decision to withhold disclosure.  The agency must, therefore, indicate the reasons for its determination to withhold disclosure and those reasons must not be frivolous or patently unfounded.”  State of Connecticut, Office of the Attorney General v. Freedom of Information Commission, 2011 WL 522872, *8 (Conn. Super. Ct. Jan. 20, 2011) (citations omitted).

[18] 19. With regard to the respondents’ claim that certain in camera records are exempt
from disclosure pursuant to §1-210(b)(4), G.S., that statute provides that disclosure is not required of “[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled….”

[19] 20. Section 1-200(8), G.S., defines “pending claim” as “a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.”

[20] 21.  Section 1-200(9), G.S., defines “pending litigation” as:

(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

[21] 22.  With regard to the respondents’ claim that certain in camera records are exempt from disclosure pursuant to §1-210(b)(9), G.S., that statute provides that disclosure is not required of “[r]ecords, reports and statements of strategy or negotiations with respect to collective bargaining….”

[22] 23.   With regard to the respondents’ claim that the majority of the in camera records are exempt from disclosure pursuant to §1-210(b)(10), G.S., such exemption provides that mandatory disclosure is not required of “communications privileged by the attorney-client relationship….” 

[23] 24. The applicability of the exemption contained in §1-210(b)(10), G.S., is governed by established Connecticut law defining the attorney-client privilege.  Such law is well set forth in Maxwell v. FOI Commission, 260 Conn. 143 (2002).  In that case, the Supreme Court stated that §52-146r, G.S., which established a statutory privilege for communications between public agencies and their attorneys, merely codifies “the common-law attorney-client privilege as this court previously had defined it.” Id., at 149.

[24] 25.  Section 52-146r(2), G.S., defines “confidential communications” as:

all oral and written communications transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties or within the scope of his or her employment and a government attorney relating to legal advice sought by the public agency or a public official or employee of such public agency from that attorney, and all records prepared by the government attorney in furtherance of the rendition of such legal advice. . . .

[25] 26.  As our Supreme Court has stated, a four part test must be applied to determine whether communications are privileged:  “(1) the attorney must be acting in a professional capacity for the agency; (2) the communications must be made to the attorney by current employees or officials of the agency; (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.”  Lash v. Freedom of Information Commission, 300 Conn. 511, 516 (2011), citing Shew v. Freedom of Information Commission, 245 Conn. 149, 159 (1998).  In addition, the Supreme Court has stated, “[w]e do not…require magic words to draw the reasonable inference that an attorney offers legal advice to a client regarding pending litigation because the client has ‘sought’ the advice.”  Lash, supra at 519 (“The surrounding facts and circumstances make it clear that the plaintiffs sought the legal advice.”) 

[26] 27.  With regard to the respondents’ claim that certain in camera records are exempt from disclosure pursuant to §1-210(b)(13), G.S., that provision states that disclosure is not required of “[r]ecords of an investigation or the name of an employee providing information under the provisions of section 4-61dd….” 

[27] 28.  Section 4-61dd, G.S., known as the “whistleblower” statute, provides that any person having knowledge of corruption in state government, may report such information to the Auditor of Public Accounts (“Auditors”), who, after reviewing such information, must report it to the Attorney General (“AG”).  The AG, with the assistance of the Auditors, must conduct an appropriate investigation of such report, and where necessary, report any findings to the Governor or the Chief State’s Attorney. 

29.  WITH REGARD TO THE RESPONDENTS’ CLAIM THAT CERTAIN IN CAMERA RECORDS ARE MEDICAL AND PSYCHOLOGICAL RECORDS EXEMPT FROM DISCLOSURE, §1-210(b)(10), G.S., PROVIDES, IN RELEVANT PART, THAT “[R]ECORDS…EXEMPTED BY…THE GENERAL STATUTES OR COMMUNICATIONS PRIVILEGED BY THE… DOCTOR-PATIENT RELATIONSHIP, THERAPIST-PATIENT RELATIONSHIP OR ANY OTHER PRIVILEGE ESTABLISHED BY THE COMMON LAW OR THE GENERAL STATUTES….”  ARE EMEPT FROM MANDATORY DISCLOSURE.  THE RESPONDENTS RELY SPECIFICALLY ON §§52-146c, 52-146d, 52-146e and 52-146o, G.S.

30.  Section 52-146c, G.S., PROVIDES, IN RELEVANT PART, THAT “IN CIVIL AND CRIMINAL ACTIONS, IN JUVENILE, PROBATE, COMMITMENT AND ARBITRATION PROCEEDINGS, IN PROCEEDINGS PRELIMINARY TO SUCH ACTIONS OR PROCEEDINGS, AND IN LEGISLATIVE AND ADMINISTRATIVE PROCEEDINGS, ALL COMMUNICATIONS SHALL BE PRIVILEGED AND A PSYCHOLOGIST SHALL NOT DISCLOSE ANY SUCH COMMUNICATIONS UNLESS THE PERSON OR HIS AUTHORIZED REPRESENTATIVE CONSENTS TO WAIVE THE PRIVILEGE AND ALLOW SUCH DISCLOSURE.”  SECTION 52-146c(a)(3) DEFINES “COMMUNICATIONS” AS “ALL ORAL AND WRITTEN COMMUNICATIONS AND RECORDS THEREOF RELATING TO THE DIAGNOSIS AND TREATMENT OF A PERSON BETWEEN SUCH PERSON AND A PSYCHOLOGIST OR BETWEEN A MEMBER OF SUCH PERSON'S FAMILY AND A PSYCHOLOGIST.”

31.  Section 52-146e, G.S., PROVIDES, IN RELEVANT PART, THAT “ALL COMMUNICATIONS AND RECORDS AS DEFINED IN SECTION 52-146d SHALL BE CONFIDENTIAL AND SHALL BE SUBJECT TO THE PROVISIONS OF SECTIONS 52-146d to 52-146j, INCLUSIVE.”  SECTION 52-146d DEFINES "COMMUNICATIONS AND RECORDS" AS “ALL ORAL AND WRITTEN COMMUNICATIONS AND RECORDS THEREOF RELATING TO DIAGNOSIS OR TREATMENT OF A PATIENT'S MENTAL CONDITION BETWEEN THE PATIENT AND A PSYCHIATRIST, OR BETWEEN A MEMBER OF THE PATIENT'S FAMILY AND A PSYCHIATRIST, OR BETWEEN ANY OF SUCH PERSONS AND A PERSON PARTICIPATING UNDER THE SUPERVISION OF A PSYCHIATRIST IN THE ACCOMPLISHMENT OF THE OBJECTIVES OF DIAGNOSIS AND TREATMENT, WHEREVER MADE, INCLUDING COMMUNICATIONS AND RECORDS WHICH OCCUR IN OR ARE PREPARED AT A MENTAL HEALTH FACILITY.”

32.  Section 52-146o, G.S., PROVIDES, IN RELEVANT PART, THAT “IN ANY CIVIL ACTION OR ANY PROCEEDING PRELIMINARY THERETO OR IN ANY PROBATE, LEGISLATIVE OR ADMINISTRATIVE PROCEEDING, A PHYSICIAN OR SURGEON, AS DEFINED IN SUBSECTION (B) OF SECTION 20-7b, SHALL NOT DISCLOSE (1) ANY COMMUNICATION MADE TO HIM BY, OR ANY INFORMATION OBTAINED BY HIM FROM, A PATIENT OR THE CONSERVATOR OR GUARDIAN OF A PATIENT WITH RESPECT TO ANY ACTUAL OR SUPPOSED PHYSICAL OR MENTAL DISEASE OR DISORDER OR (2) ANY INFORMATION OBTAINED BY PERSONAL EXAMINATION OF A PATIENT, UNLESS THE PATIENT OR HIS AUTHORIZED REPRESENTATIVE EXPLICITLY CONSENTS TO SUCH DISCLOSURE.”


Doris Vieira In Camera Records (“Vieira records”)
 
[28] 33.  On the index to the Vieira records, the respondents claimed that such records are
exempt from disclosure pursuant to §§1-210(b)(1) and 1-210(b)(10) G.S., respectively. 

[29] 34.  The respondents claimed that the majority of the Vieira records are exempt from
disclosure pursuant to §1-210(b)(10), G.S., only.

[30] 35.  With respect to IC-2016-0191-1 through 4 and IC-2016-0191-5 through 6, it is
found, after careful examination, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-1 through 4 and IC-2016-0191-5 through 6 are not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[31] 36. With respect to IC-2016-0191-7 through 10, on the index, the respondents describe the only information believed to be exempt in such records, as an email, dated April 14, 2015.  Such email appears in IC-2016-0191-9 (lines 17-27) through 10, and will be addressed accordingly.  The respondents do not identify a corresponding exemption for IC-2016-0191-7 through 9 (lines 1-16).     

[32] 37.  It is found, after careful examination, that IC-2016-0191-9 (lines 17-27) through 10 are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-9 (lines 17-27) through 10, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.

[33] 38.  It is found, after careful examination of IC-2016-0191-7 through 9 (lines 1-16), that the respondents failed to prove that such records constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-7 through 9 (lines 1-16) are not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[34] 39.  With respect to IC-2016-0191-15 through 18, it is found, after careful examination, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-15 through 18 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[35] 40.  With respect to IC-2016-0191-19 through 21, it is found, after careful examination, that IC-2016-0191-19 (lines 16-28) through 21 are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-19 (lines 16-28) through 21 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[36]  41.  It is found, after careful examination of IC-2016-0191-19 (lines 1-15), that such record does not constitute a communication within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that such record is not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such record.

[37] 42.  With respect to IC-2016-0191-22 through 36, on the index, the respondents indicate that such records contain an email, dated October 16, 2014, for which they are claiming an exemption, and certain additional emails and attachments that are not claimed to be exempt from disclosure.  It is found that IC-2016-0191-22 through 36 do not contain an email dated October 16, 2014.  It is found, however, that the information contained in IC-2016-0191-22 through 36, including the attachments, are responsive to the complainant’s request and will be addressed accordingly. 

[38] 43.  It is found, after careful examination of IC-2016-0191-22 through 36, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-22 through 36 are not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.   [DELETE FOOTNOTE]

[39] 44.  With respect to IC-2016-0191-37 through 39, on the index, the respondents indicate that such records contain an email, dated November 7, 2014, for which they are claiming an exemption.  It is found that IC-2016-0191-37 through 39 do not contain an email dated November 7, 2014.  It is found, however, that the emails contained in IC-2016-0191-37 through 39 are responsive to the complainant’s request and will be addressed accordingly.   

[40]  45.  It is found, after careful examination of IC-2016-0191-37 through 39, that IC-2016-0191-37 (lines 1-15) does not constitute a communication within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-37 (lines 1-15) is not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such record.

[41] 46.  It is found, after careful examination of IC-2016-0191-37 (lines 16-24) through 39, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-37 (lines 16-24) through 39 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[42] 47.  With respect to IC-2016-0191-40 through 41, it is found, after careful examination of IC-2016-0191-40 (lines 1-15), that such record does not constitute a communication within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-40 (lines 1-15) is not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such record.

[43] 48.  It is found, after careful examination, that IC-2016-0191-40 (lines 16-30) through 41 are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-40 (lines 16-30) through 41 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[44] 49.  With respect to IC-2016-0191-43 through 51, it is found, after careful examination, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-43 through 51 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[45] 50.  With respect to IC-2016-0191-52 through 54,   on the index, the respondents indicate that the only information believed to be exempt in such records are the “first 2 emails.”  Such emails appear in IC-2016-0191-52 (lines 1-2), and will be addressed accordingly.

[46] 51.  It is found, after careful examination, that the respondents failed to prove that IC-2016-0191-52 through 54, including the emails described in paragraph [45] 50, above, constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-52 through 54 are not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[47] 52.  With respect to IC-2016-0191-55 through 62,   it is found, after careful examination, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-55 through 62 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure. 

[48] 53.  With respect to IC-2016-0191-42, the respondents neglected to identify the corresponding exemption pursuant to which such record is claimed to be exempt.  It is found, however, that IC-2016-0191-42 is identical to IC-2016-0191-5, which was claimed to be exempt from disclosure pursuant to §1-210(b)(10), G.S., as described in paragraph [30] 35, above.  It is further found, after careful examination of IC-2016-0191-42, that such record does not constitute a communication within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-42 is not exempt from disclosure pursuant to §1-210(b)(10), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such record.

[49] 54.  With respect to IC-2016-0191-11 and IC-2016-0191-12 through 14, the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(1), G.S., only.  It is found, however, that the respondents failed to prove that IC-2016-0191-11 and IC-2016-0191-12 through 14 are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that IC-2016-0191-11 and IC-2016-0191-12 through 14, are not exempt from disclosure pursuant to §1-210(b)(1), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.


Sandra Cady In Camera Records (“Cady records”)

[50] 55.  On the index to the Cady records, the respondents claimed that such records are exempt from disclosure pursuant to §§1-210(b)(1) and/or 1-210(b)(10), G.S.    

[51] 56.  It is found, after careful examination of the following documents, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice: IC-2016-0191-1 through 2, IC-2016-0191-3 through 4, IC-2016-0191-6 through 9, IC-2016-0191-10 through 12, IC-2016-0191-13 through 15, IC-2016-0191-16 through 19, IC-2016-0191-20 through 22, IC-2016-0191-23 through 25, IC-2016-0191-26, IC-2016-0191-27, IC-2016-0191-50, IC-2016-0191-51 (LINES 31-33 FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-61 through 62, IC-2016-0191-63 through 64, and IC-2016-0191-65 through 66.

[52] 57.  It is found that the documents described in paragraph [51]56, above, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.   

[53] 58.  It is found, after careful examination of the following documents, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.: IC-2016-0191-32 through 36, IC-2016-0191-37 through 48, IC-2016-0191-49, IC-2016-0191-51 (LINES 1-31 UP TO “AS WE HAVE”, LINES 34-44) through 54, IC-2016-0191-55 through 57, IC-2016-0191-58 through 59, IC-2016-0191-60,   IC-2016-0191-67 through 70, and IC-2016-0191-71.  Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[54] 59.  It is found, after careful examination of IC-2016-0191-5, IC-2016-0191-28, IC-2016-0191-31 and IC-2016-0191-72 through 73, that the respondents failed to prove that such records constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-5, IC-2016-0191-28, IC-2016-0191-31 and IC-2016-0191-72 through 73, are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[55] 60.   With respect to IC-2016-0191-29 through 30, it is found that such records consist of an email (IC-2016-0191-29) and one page attachment (IC-2016-0191-30).  It is found that although the email makes reference to an attachment, the attached document is not the document to which reference is made.  It is further found, however, that IC-2016-0191-29 and IC-2016-0191-30 are both responsive to the complainant’s request. 

[56] 61.  It is found, after careful examination of IC-2016-0191-29 through 30, that the respondents failed to prove that such records constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-29 through 30, are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[57] 62.  The respondents also claim that IC-2016-0191-5, IC-2016-0191-28, IC-2016-0191-29 through 30 and IC-2016-0191-31, are exempt from disclosure pursuant to §1-210(b)(1), G.S.  It is found, however, that the respondents failed to prove that such records are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that IC-2016-0191-5, IC-2016-0191-28, IC-2016-0191-29 through 30 and IC-2016-0191-31 are not exempt from disclosure pursuant to §1-210(b)(1), G.S.

[58] 63.   Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the records described in paragraphs [53, 54, 55, 56 and 57] 58, 59, 60, 61 and 62, above.


Martha Carlson In Camera Records (“Carlson records”)

[59] 64.  On the index to the Carlson records, the respondents claimed that such records are exempt from disclosure pursuant to §§1-210(b)(1), 1-210(b)(4) and/or 1-210(b)(10), G.S.    
[60] 65.  The respondents claimed that the majority of the Carlson records are exempt from disclosure pursuant to §1-210(b)(10), G.S.

[61] 66.   It is found, after careful examination of the following documents, and attachments thereto, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice:

IC-2016-0191-9 THROUGH 13,  IC-2016-0191-35 through 38, IC-2016-0191-39 through 61, IC-2016-0191-94 through 96, IC-2016-0191-97 (lines 9-36) through 98,   IC-2016-0191-106 through 107, IC-2016-0191-108 through 112, IC-2016-0191-113 through 117, IC-2016-0191-118 through 124, IC-2016-0191-125 through 134, IC-2016-0191-136 through 183, IC-2016-0191-184 (lines 15-24) through 186, IC-2016-0191-187 through 191, IC-2016-0191-192 through 622, IC-2016-0191-623 through 651, IC-2016-0191-656 through 657, IC-2016-0191-658, IC-2016-0191-662 through 683, IC-2016-0191-684 (lines 27-45), IC-2016-0191-685 (LINES 27-28, FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-695 through 706, IC-2016-0191-738 through 739, IC-2016-0191-786 through 808, IC-2016-0191-809 through 811, IC-2016-0191-812 through 815, IC-2016-0191-816 through 818, IC-2016-0191-819 through 820, IC-2016-0191-821 through 825, IC-2016-0191-826 through 827, IC-2016-0191-828 through 833, IC-2016-0191-834 through 837, IC-2016-0191-838 through 839, and IC-2016-0191-840 through 843.

[62] 67.   It is found that the documents described in paragraph [61]66, above, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.     
[63] 68.  It is found, after careful examination of the following documents, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.: IC-2016-0191-62 through 63, IC-2016-0191-97 (lines 1-8), IC-2016-0191-103 [through 105], IC-2016-0191-184 (lines 1-14), IC-2016-0191-684 (lines 1-26), IC-2016-0191-685 (LINES 1-27 UP TO “AS WE HAVE”, LINES 29-59) through 694, IC-2016-0191-707 through 724, IC-2016-0191-729, IC-2016-0191-732, IC-2016-0191-733 [through 735, IC-2016-0191-736 through 737], and IC-2016-0191-740 through 742.  Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[64] 69.  With respect to IC-2016-0191-135, after careful examination of such record, it is found that the respondents failed to prove that IC-2016-0191-135 constitutes a communication within the meaning of §1-210(b)(10), G.S.   Accordingly, it is concluded that such record is not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[65] 70.  With respect to IC-2016-0191-99 through 102,   IC-2016-0191-659 through 661, and IC-2016-0191-730 through 731, it is found that the respondents failed to identify all recipients of such records.  It is found that the respondents failed to prove that such individual(s) were “attorneys” or “clients,” (NOR ARE THESE FACTS EVIDENT FROM THE RECORDS THEMSELVES), and that therefore, the respondents failed to prove that IC-2016-0191-99 through 102, IC-2016-0191-659 through 661, and IC-2016-0191-730 through 731 constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[66] 71.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the records described in paragraphs [63, 64 and 65] 68, 69 and 70, above.

[67] 72.  With respect to IC-2016-0191-844 through 905, it is found that such documents consist of a two-page email chain (IC-2016-0191-844 through 845) with a multi-page attachment (IC-2016-0191-846 through 905).  It is found that the email chain makes reference to an attachment.  It is also found, however, that the multi-page attachment is not the document to which reference is made. 

[68] 73. It is found, after careful examination of IC-2016-0191-844 through 845, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S., and are not exempt from disclosure pursuant to §1-210(b)(10), G.S. 

[69] 74.  With respect to IC-2016-0191-846 through 905, such records do not appear to correspond with the email chain found in IC-2016-0191-844 through 845, described in paragraphs [67 and 68] 72 and 73, above.  It is found, however, that IC-2016-0191-846 through 905 are responsive to the complainant’s request.  After careful examination of IC-2016-0191-846 through 905, it is found that the respondents failed to prove that such records constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that IC-2016-0191-846 through 905 are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[70] 75.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding IC-2016-0191-844 through 905 from disclosure.

[71] 76.  With respect to IC-2016-0191-743 through 785, it is found that such documents consist of a three-page email chain (IC-2016-0191-743 through 745) with a multi-page attachment (IC-2016-0191-746 through 785).  It is found that the email chain does not make any reference to such multi-page attachment. 

[72] 77.  It is found, after careful examination of IC-2016-0191-743 (lines 17-25), that such record is a communication transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is found that IC-2016-0191-743 (lines 17-25) constitutes a communication privileged by the attorney-client relationship, and is exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such record from disclosure. 

[73] 78.  It is found, after careful examination of IC-2016-0191-743 (lines 1-16) and IC-2016-0191-744 through 745, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S., and are not exempt from disclosure pursuant to §1-210(b)(10), G.S. 

[74] 79.  The respondents also claim that IC-2016-0191-743 (lines 1-16) and IC-2016-0191-744 through 745 are exempt from disclosure pursuant to §1-210(b)(4), G.S., as records pertaining to strategy and negotiations with respect to pending claims or pending litigation.  It is found, however, that the respondents did not offer any evidence to prove the applicability of §1-210(b)(4), G.S.  Accordingly, it is found that the respondents failed to prove that IC-2016-0191-743 (lines 1-16) and IC-2016-0191-744 through 745 are exempt from disclosure pursuant to §1-210(b)(4), G.S. 

[75] 80.  Based upon the foregoing, it is concluded that the respondents violated the FOI Act by withholding IC-2016-0191-743 (lines 1-16) and IC-2016-0191-744 through 745 from disclosure.

[76] 81.  With respect to IC-2016-0191-746 through 785, such records do not appear to
correspond with the email chain found in IC-2016-0191-743 through 745, described in paragraph [71] 76, above.  It is found, however, that such documents are responsive to the complainant’s request.  [After careful examination of IC-2016-0191-746 through 785, it is found that the respondents failed to prove that such records constitute communications within the meaning of §1-210(b)(10), G.S.   Accordingly, it is concluded that IC-2016-0191-746 through 785 are not exempt from disclosure pursuant to §1-210(b)(10), G.S.]

82.  AFTER CAREFUL EXAMINATION OF IC-2016-0191-754 THROUGH 759, IT IS FOUND THAT SUCH DOCUMENTS CONTAIN DETAILED MEDICAL AND PSYCHOLOGICAL INFORMATION WITHIN THE MEANING OF §§52-146o, 52-146c, 52-146d and 52-146e, G.S., AND THEREFORE, ARE EXEMPT FROM DISCLOSURE.  ACCORDINGLY, THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH RECORDS FROM DISCLOSURE. [NEW FOOTNOTE ]  

83.  AFTER CAREFUL EXAMINATION OF IC-2016-0191-746 THROUGH 753 AND IC-2016-0191-760 THROUGH 785, IT IS FOUND THAT THE RESPONDENTS FAILED TO PROVE THAT SUCH RECORDS CONSTITUTE COMMUNICATIONS WITHIN THE MEANING OF §1-210(b)(10), G.S. ACCORDINGLY, IT IS CONCLUDED THAT IC-2016-0191-746 THROUGH 753 AND IC-2016-0191-760 THROUGH 785 ARE NOT EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(10), G.S.

[77] 84.  The respondents also claim that IC-2016-0191-746 THROUGH 753 AND IC-2016-0191-760 THROUGH 785, described in paragraph [76] 83, above, are exempt from disclosure pursuant to §1-210(b)(4), G.S., as records pertaining to strategy and negotiations with respect to pending claims or pending litigation.  It is found, however, that the respondents did not offer any evidence to prove the applicability of §1-210(b)(4), G.S.  Accordingly, it is found that the respondents failed to prove that IC-2016-0191-746 through 753 AND IC-2016-0191-760 THROUGH 785 are exempt from disclosure pursuant to §1-210(b)(4), G.S.

[78] 85.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding IC-2016-0191-746 through 753 AND IC-2016-0191-760 THROUGH 785 from disclosure.

[79] 86.  With respect to IC-2016-0191-1 through 8 and IC-2016-0191-[9] 14 through 34, the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(1), G.S., only.  It is found, however, that the respondents failed to prove that such records are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that IC-2016-0191-1 through 8 and IC-2016-0191-[9] 14 through 34 are not exempt from disclosure pursuant to §1-210(b)(1), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[80] 87.  With respect to IC-2016-0191-652 through 653 and IC-2016-0191-654 through 655, the Commission notes that such records were made exhibits in this matter, and provided to the complainant.  Accordingly, IC-2016-0191-652 through 653 and IC-2016-0191-654 through 655 will not be further addressed herein.

Natalie Braswell In Camera Records (“Braswell records”)

[81] 88.    On the index to the Braswell records, the respondents claimed that such records are exempt from disclosure pursuant to §§1-210(b)(4), 1-210(b)(10) and/or 1-210(b)(13), G.S. 

[82] 89.  The respondents claimed that the majority of the Braswell records are exempt from disclosure pursuant to §1-210(b)(10), G.S.

[83] 90.   It is found, after careful examination of the following documents, and attachments thereto, that such records, are communications transmitted in confidence between an attorney(s) and client(s) relating to legal advice sought by the client(s) and/or prepared in furtherance of the rendition of such legal advice:

IC-2016-0191-1 through 2, IC-2016-0191-5 through 6, IC-2016-0191-7 through 8, IC-2016-0191-9 through 10, IC-2016-0191-19 through 21, IC-2016-0191-27 through 28, IC-2016-0191-48 through 52, IC-2016-0191-53 through 81, IC-2016-0191-84 through 89, IC-2016-0191-90 through 115, IC-2016-0191-116 through 119, IC-2016-0191-120 through 121, IC-2016-0191-122, IC-2016-0191-123 through 126, IC-2016-0191-127 through 148, IC-2016-0191-149 through 152, IC-2016-0191-153 through 155, IC-2016-0191-156 through 161, IC-2016-0191-162 (lines 36-47) through 163 (lines 1-18, LINES 34-35 FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-173 through 184, IC-2016-0191-201 through 202, IC-2016-0191-203 through 205, IC-2016-0191-281, IC-2016-0191-285 through 286, IC-2016-0191-287 through 289, IC-2016-0191-290 through 292, IC-2016-0191-293 through 294, IC-2016-0191-295, IC-2016-0191-296, IC-2016-0191-297 through 298, IC-2016-0191-299 through 300, IC-2016-0191-301, IC-2016-0191-302, IC-2016-0191-303 through 304, IC-2016-0191-305 through 308, IC-2016-0191-309 through 316, IC-2016-0191-317 through 318, IC-2016-0191-319 through 323, IC-2016-0191-324 through 328, IC-2016-0191-329 through 333, IC-2016-0191-334 through 336, IC-2016-0191-337 through 342, IC-2016-0191-343 through 348, IC-2016-0191-349 through 352, IC-2016-0191-353 through 355, IC-2016-0191-356 through 358, IC-2016-0191-359 through 361, IC-2016-0191-374 through 375, IC-2016-0191-378 through 379, IC-2016-0191-380 through 382, IC-2016-0191-383 through 434, IC-2016-0191-435 through 464, IC-2016-0191-465 through 490, IC-2016-0191-491 through 504, IC-2016-0191-505 through 522, IC-2016-0191-523 through 524, IC-2016-0191-525 through 528, IC-2016-0191-529 through 532, IC-2016-0191-533 through 536, IC-2016-0191-537 through 541, IC-2016-0191-542 through 547, IC-2016-0191-548 through 554, IC-2016-0191-555 through 556, IC-2016-0191-557 (lines 20-21) through 558, IC-2016-0191-559 (lines 20-21) through 561, IC-2016-0191-562 (lines 20-21) through 564, IC-2016-0191-566 through 567, IC-2016-0191-568 through 569, IC-2016-0191-570 through 571, IC-2016-0191-572 through 575, IC-2016-0191-577 through 580, IC-2016-0191-581 through 583, IC-2016-0191-584 through 591, IC-2016-0191-592 through 599, IC-2016-0191-600 through 602, IC-2016-0191-603 through 605, IC-2016-0191-606 through 618, IC-2016-0191-619 through 624, IC-2016-0191-625 through 627, IC-2016-0191-628 through 630, IC-2016-0191-631 through 633, IC-2016-0191-634 through 636, IC-2016-0191-639, IC-2016-0191- 641, IC-2016-0191-844 through 847, IC-2016-0191-848 through 852, IC-2016-0191-853 through 858, IC-2016-0191-859 through 864, IC-2016-0191-865 through 868, IC-2016-0191-869 through 871, IC-2016-0191-872 through 874, IC-2016-0191-875 through 877, IC-2016-0191-878 through 880, IC-2016-0191-881 through 882, IC-2016-0191-883 through 885, IC-2016-0191-886 through 888, IC-2016-0191-889 through 892, IC-2016-0191-893 through 895, IC-2016-0191-896 through 900, IC-2016-0191-901 (lines 19-25) through 906, IC-2016-0191-908 through 913, IC-2016-0191-915 (lines 19-29) through 920, IC-2016-0191-922 (lines 22-26) through 927, IC-2016-0191-931 through 936, IC-2016-0191-940 through 945, IC-2016-0191-946 through 949, IC-2016-0191-957, IC-2016-0191-958 through 959, IC-2016-0191-960 through 962, IC-2016-0191-963 through 964, and IC-2016-0191-965 through 966.

[84] 91.   It is found that the documents described in paragraph [83] 90, above, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.

[85]   92.  It is found, after careful examination of the following records, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.:

IC-2016-0191-3 through 4, IC-2016-0191-[22] 24  through 26, IC-2016-0191-29 through 33,  IC-2016-0191-34 through 38, IC-2016-0191-39 through 43, IC-2016-0191-44 through 47, IC-2016-0191-82 through 83, IC-2016-0191-162 (lines 1-35), IC-2016-0191-163 (lines 19-34 UP TO “AS WE HAVE”, LINES 36-57), IC-2016-0191-164 through 172, IC-2016-0191-185 through 200, IC-2016-0191-282 [through 284], IC-2016-0191-362 through 367, IC-2016-0191-368 through 372, IC-2016-0191-373, IC-2016-0191-376 through 377, IC-2016-0191-557 (lines 1-19), IC-2016-0191-559 (lines 1-19), IC-2016-0191-562 (lines 1-19), IC-2016-0191-565, IC-2016-0191-576, IC-2016-0191-637 through 638, IC-2016-0191-640, IC-2016-0191-901 (lines 1-18), IC-2016-0191-907, IC-2016-0191-914, IC-2016-0191-915 (lines 1-18), IC-2016-0191-921 through 922 (lines 1-21), IC-2016-0191-928 through 930, IC-2016-0191-937 through 939, IC-2016-0191-950 through 951, IC-2016-0191-952 through 954, IC-2016-0191-1042, and IC-2016-0191-1073 through 1074.

Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[86] 93.  With respect to IC-2016-0191-1075, it is found that the respondents failed to identify a recipient of such record.  IT IS FOUND THAT SUCH COMMUNICATION IS AN EMAIL SENT TO AN UNIDENTIFIED INDIVIDUAL’S PRIVATE EMAIL ACCOUNT, AND THAT THE RESPONDENTS OFFERED NO EVIDENCE REGARDING WHETHER AN ATTORNEY-CLIENT RELATIONSHIP EXISTED BETWEEN THE ATTORNEY AND SUCH INDIVIDUAL.  It is found THEREFORE that the respondents failed to prove that such individual was an “attorney” or “client,” and that therefore, the respondents failed to prove that IC-2016-0191-1075 constitutes a communication within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that such record is not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[87] 94.  Based on the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the records described in paragraphs [85 and 86] 92 AND 93, above.

[88] 95.  The respondents claimed that [IC-2016-0191-955 through 956 and] IC-2016-0191-1076 AND IC-2016-0191-1079 through 1089 are exempt from disclosure pursuant to §1-210(b)(13), G.S., only.  After careful inspection of such records, however, it is found that the respondents failed to prove that [such records] IC-2016-0191-1076 AND IC-2016-0191-1079 THROUGH 1089 are “records of an investigation,” of a whistleblower complaint, and therefore are not exempt from disclosure.  Accordingly, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding [IC-2016-0191-955 through 956 and IC-2016-0191-1076 through 1089] SUCH RECORDS from disclosure.

[89] 96.  It is found that the respondents did not identify the corresponding exemption for IC-2016-0191-642.  It is further found that the respondents failed to prove that such record is exempt from disclosure.  Accordingly, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding IC-2016-0191-642 from disclosure.


Brenda Halpin In Camera Records (“Halpin records”)

[90] 97.  On the index to the Halpin records, the respondents claimed that such records are exempt from disclosure pursuant to §§1-210(b)(1), 1-210(b)(9) and/or 1-210(b)(10), G.S.
[91] 98.  The respondents claimed that the majority of the Halpin records are exempt from disclosure pursuant to §1-210(b)(10), G.S.

[92] 99.  It is found, after careful examination of the following documents, and attachments thereto, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice:

IC-2016-0191-4, IC-2016-0191-5 through 9, IC-2016-0191-136 through 139, IC-2016-0191-154 through 168, IC-2016-0191-169 through 182, IC-2016-0191-186 through 187, IC-2016-0191-188 through 191, IC-2016-0191-192 through 213, IC-2016-0191-214 through 215, IC-2016-0191-216 through 218, IC-2016-0191-220 through 224, IC-2016-0191-225 through 229, IC-2016-0191-230 through 233, IC-2016-0191-236 through 240, IC-2016-0191-252 through 723, IC-2016-0191-724 through 726, IC-2016-0191-727 through 728, IC-2016-0191-729 through 731, IC-2016-0191-732 through 733, IC-2016-0191-734 through 736, IC-2016-0191-738, IC-2016-0191-739 (LINES 31-33 FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-744 through 748, IC-2016-0191-749 through 750, IC-2016-0191-751 through 752, IC-2016-0191-753 through 754, IC-2016-0191-755, [IC-2016-0191-786 through 809], IC-2016-0191-810, IC-2016-0191-811 (lines 36-47) through 812 (lines 1-18, LINES 34-35 FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-816 through 820, IC-2016-0191-821 through 822, IC-2016-0191-823 through 824, IC-2016-0191-825 through 826, IC-2016-0191-827, IC-2016-0191-851 through 856, IC-2016-0191-857 through 886, IC-2016-0191-887 through 905, IC-2016-0191-906 through 908, [IC-2016-0191-913 through 928], IC-2016-0191-929 through 932, IC-2016-0191-936 through 937, [IC-2016-0191-938 through 939, IC-2016-0191-940 through 941, IC-2016-0191-942 through 943, IC-2016-0191-944 through 945, IC-2016-0191-946 through 947], IC-2016-0191-948 through 949, IC-2016-0191-971 through 977, IC-2016-0191-980 through 983, IC-2016-0191-985 through 1000, IC-2016-0191-1001 through 1012, IC-2016-0191-1013 through 1016, IC-2016-0191-1017 through 1020, IC-2016-0191-1021 (lines 9-36) through 1022, IC-2016-0191-1023 through 1027, IC-2016-0191-1032, IC-2016-0191-1128, IC-2016-0191-1129 (lines 17-25), IC-2016-0191-1132 through 1133, IC-2016-0191-1167 through 1170, IC-2016-0191-1171 through 1172, IC-2016-0191-1173 through 1174, IC-2016-0191-1175, IC-2016-0191-1225 through 1226, IC-2016-0191-1227 (lines 17-25), and IC-2016-0191-1230 through 1231.

[93] 100.  It is found that the documents described in paragraph [92] 99, above, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.

[94] 101.  With respect to IC-2016-0191-933 through 935, it is found that such records consist of a two-page email chain (IC-2016-0191-933 through 934) with a one page attachment (IC-2016-0191-935).  It is found that although the email chain makes reference to an attachment, the attached document is not the document to which reference is made.   

[95] 102.  It is found, after careful examination of IC-2016-0191-933 through 934, that such records are communications transmitted in confidence between an attorney(s) for the respondents and employees and/or officials of the respondents relating to legal advice sought by the respondents and/or prepared in furtherance of the rendition of such legal advice.  It is further found that IC-2016-0191-933 through 934 constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.

[96] 103.  It is found, after careful examination of IC-2016-0191-935, that such record does not appear to correspond with the email chain found in IC-2016-0191-933 through 934, described in paragraphs [94 and 95] 101 AND 102, above, nor does it appear to be responsive to the complainant’s request. Accordingly, such record will not be further addressed herein.     

[97] 104.  It is found, after careful examination of the following documents, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.:

IC-2016-0191-140, IC-2016-0191-143 through 153, IC-2016-0191-183 [through 185], IC-2016-0191-219, IC-2016-0191-IC-2016-0191-737, 739 (LINES 1-31 UP TO “AS WE HAVE”, LINES 34-44) through 743, IC-2016-0191-756 through 757, IC-2016-0191-758 through 759, IC-2016-0191-760 through 761, IC-2016-0191-762 through 767, IC-2016-0191-768 through 777, IC-2016-0191-778 through 779, IC-2016-0191-780, IC-2016-0191-781, IC-2016-0191-782, IC-2016-0191-783, IC-2016-0191-784, IC-2016-0191-785, IC-2016-0191-811 (lines 1-35), 812 (LINES 19-34 UP TO “AS WE HAVE”, LINES 36-57), 813-815, IC-2016-0191-828 through 835, IC-2016-0191-836 through 837, IC-2016-0191-838 through 839, IC-2016-0191-840 through 845, IC-2016-0191-846 through 849, IC-2016-0191-850, IC-2016-0191-909, IC-2016-0191-950 through 951, IC-2016-0191-952 through 953, IC-2016-0191-954 through 955, IC-2016-0191-956 through 957, IC-2016-0191-958 through 959, IC-2016-0191-960 through 961, IC-2016-0191-962 through 963, IC-2016-0191-964, IC-2016-0191-965 through 967, IC-2016-0191-968 through 970, IC-2016-0191-978,  IC-2016-0191-979, IC-2016-0191-984, IC-2016-0191-1021 (lines 1-8), IC-2016-0191-1033 through 1064, IC-2016-0191-1065, IC-2016-0191-1068 THROUGH 1078, IC-2016-0191-[1079] 1081 through 1083, IC-2016-0191-1084 through 1086, IC-2016-0191-1129 (lines 1-16), IC-2016-0191-1130 through 1131, IC-2016-0191-1134, IC-2016-0191-1135 through 1136, IC-2016-0191-[1176] 1178 through 1180, IC-2016-0191-1181 through 1183, IC-2016-0191-1227 (lines 1-16), and IC-2016-0191-1228 through 1229.

Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[98] 105.  With respect to IC-2016-0191-786 THROUGH 809, IC-2016-0191-910, IC-2016-0191-911, IC-2016-0191-912, IC-2016-0191-913 THROUGH 928, IC-2016-0191-938 THROUGH 939, IC-2016-0191-940 THROUGH 941, IC-2016-0191-942 THROUGH 943, IC-2016-0191-944 THROUGH 945, IC-2016-0191-946 THROUGH 947, and IC-2016-0191-1232 through 1236, after careful examination of such records, it is found that the respondents failed to prove that IC-2016-0191-786 THROUGH 809, IC-2016-0191-910, IC-2016-0191-911, IC-2016-0191-912, IC-2016-0191-913 THROUGH 928, IC-2016-0191-938 THROUGH 939, IC-2016-0191-940 THROUGH 941, IC-2016-0191-942 THROUGH 943, IC-2016-0191-944 THROUGH 945, IC-2016-0191-946 THROUGH 947, and IC-2016-0191-1232 through 1236, constitute communications within the meaning of §1-210(b)(10), G.S.   Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

106. WITH RESPECT TO IC-2016-0191-938 THROUGH 939, THE
RESPONDENTS ALSO CLAIMED THAT SUCH RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(9), G.S.  IT IS FOUND, HOWEVER, THAT THE RESPONDENTS FAILED TO PROVE THAT IC-2016-191-938 THROUGH 939 ARE “[R]ECORDS, REPORTS AND STATEMENTS OF STRATEGY OR NEGOTIATIONS WITH RESPECT TO COLLECTIVE BARGAINING.”  ACCORDINGLY, IT IS CONCLUDED THAT IC-2016-0191-938 THROUGH 939 ARE NOT EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(9), G.S.

[99] 107.  With respect to IC-2016-0191-1028 through 1031, it is found that the respondents failed to identify the recipient of such records.  It is found that the respondents failed to prove that such individual was an “attorney” or “client,” (NOR IS THIS FACT EVIDENT FROM THE RECORD ITSELF) and that therefore, the respondents failed to prove that IC-2016-0191-1028 through 1031 constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[100] 108.  With respect to IC-2016-0191-968 through 970, the respondents also claimed that such record is exempt from disclosure pursuant to §1-210(b)(1), G.S.  It is found, however, that the respondents failed to prove that IC-2016-0191-968 through 970 is a “preliminary draft or note” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that such record is not exempt from disclosure pursuant to §1-210(b)(1), G.S.

[101] 109.  Based upon the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the records described in paragraphs [97, 98, 99 and 100] 104, 105, 106, 107 AND 108, above.

[102] 110.  With respect to IC-2016-0191-1 through 3, IC-2016-0191-12 through 41, IC-2016-0191-46 through 115, AND IC-2016-0191-116 through 135 [, and IC-2016-0191-247 through 251], the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(1), G.S., only.  It is found, however, that the respondents failed to prove that [such records] IC-2016-0191-1 THROUGH 3, IC-2016-0191-12 THROUGH 41, IC-2016-0191-46 THROUGH 115, AND IC-2016-0191-116 THROUGH 135 are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that [IC-2016-0191-1 through 3, IC-2016-0191-12 through 41, IC-2016-0191-46 through 115, IC-2016-0191-116 through 135, and IC-2016-0191-247 through 251,] SUCH RECORDS are not exempt from disclosure pursuant to §1-210(b)(1), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[103] 111. With respect to IC-2016-0191-10 through 11, IC-2016-0191-234 through 235, and IC-2016-0191-241 through 242, the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(9), G.S., only.  It is found, however, that the respondents failed to prove that such records are “[r]ecords, reports and statements of strategy or negotiations with respect to collective bargaining.”  Accordingly, it is concluded that IC-2016-0191-10 through 11, IC-2016-0191-234 through 235, and IC-2016-0191-241 through 242, are not exempt from disclosure pursuant to §1-210(b)(9), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.


Kevin Lembo In Camera Records (“Lembo records”)

[104] 112.  On the index to the Lembo records, the respondents claimed that such records are exempt from disclosure pursuant to §§1-210(b)(1), 1-210(b)(4), 1-210(b)(10) and/or 1-210(b)(13), G.S.

[105] 113.  The respondents claimed that the majority of the Lembo records are exempt from disclosure pursuant to §1-210(b)(10), G.S.

[106] 114.  It is found, after careful examination of the following documents, and attachments thereto, that such records are communications transmitted in confidence between attorney(s) and client(s) relating to legal advice sought by the client and/or prepared in furtherance of the rendition of such legal advice:

IC-2016-0191-1 through 4, IC-2016-0191-73, IC-2016-0191-135 through 150, IC-2016-0191-278 through 279, IC-2016-0191-324 (lines 17-25), IC-2016-0191-327 through 349, IC-2016-0191-350 through 353, IC-2016-0191-716 through 720, IC-2016-0191-721 through 725, IC-2016-0191-726 through 730, IC-2016-0191-731 through 735, IC-2016-0191-736 through 745,
IC-2016-0191-746 through 793, IC-2016-0191-794 through 796, IC-2016-0191-797 through 801, IC-2016-0191-802 through 830, IC-2016-0191-831 through 1263, IC-2016-0191-1264 through 1265, IC-2016-0191-1266 through 1267, IC-2016-0191-1268 through 1269, IC-2016-0191-1270 through 1273, IC-2016-0191-1274 through 1277, IC-2016-0191-1290 through 1291,
[IC-2016-0191-1292 through 1296], IC-2016-0191-1297 through 1304, IC-2016-0191-1305 through 1313, IC-2016-0191-1314 through 1319, IC-2016-0191-1320 through 1327, IC-2016-0191-1328 through 1333, IC-2016-0191-1334 through 1355, IC-2016-0191-1357 through 1358,
IC-2016-0191-1359 through 1361, IC-2016-0191-1362 through 1365, IC-2016-0191-1366 through 1368, IC-2016-0191-1369 through 1370, IC-2016-0191-1371 (lines 27-45), IC-2016-0191-1372 (LINES 27-28 FROM “AS WE HAVE” TO “PLAN”), IC-2016-0191-1376 through 1387, IC-2016-0191-1410 through 1412, IC-2016-0191-1413 through 1416, IC-2016-0191-1523 through 1536, IC-2016-0191-1615 through 1616, IC-2016-0191-1617 through 1618, and IC-2016-0191-1619 through 1620[.] , AND IC-2016-0191-1667 THROUGH 1668.

[107] 115. It is found that the documents described in paragraph [106] 114, above, constitute communications privileged by the attorney-client relationship, and are exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, the respondents did not violate the FOI Act by withholding such records from disclosure.

[108] 116. It is found, after careful examination of the following documents, that such records do not constitute communications within the meaning of §1-210(b)(10), G.S.:

IC-2016-0191-5, IC-2016-0191-50, IC-2016-0191-63, IC-2016-0191-69, IC-2016-0191-74, IC-2016-0191-84, IC-2016-0191-122, IC-2016-0191-151 through 154, IC-2016-0191-273, IC-2016-0191-274, IC-2016-0191-275 through 277, IC-2016-0191-280 through 282, IC-2016-0191-324 (lines 1-16), IC-2016-0191-325 through 326, IC-2016-0191-354 through 356, IC-2016-0191-518, IC-2016-0191-519 through 520, IC-2016-0191-521 through 522, IC-2016-0191-626 through 628, IC-2016-0191-634, IC-2016-0191-710, IC-2016-0191-714, IC-2016-0191-715,
IC-2016-0191-1356, IC-2016-0191-1371 (lines 1-26), IC-2016-0191-1372 (LINES 1-27 UP TO “AS WE HAVE”, LINES 29-63) through 1375, IC-2016-0191-1388 through 1409, IC-2016-0191-1537, IC-2016-0191-1548, IC-2016-0191-1562, AND IC-2016-0191-1665 through 1666[,]. [and IC-2016-0191-1667 through 1668.]

Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

117.  IT IS FOUND, AFTER CAREFUL EXAMINATION OF IC-2016-0191-1292 THROUGH 1296, THAT THE RESPONDENTS FAILED TO PROVE THAT SUCH RECORDS CONSTITUTE COMMUNICATIONS WITHIN THE MEANING OF §1-210(b)(10), G.S.  ACCORDINGLY, IT IS CONCLUDED THAT IC-2016-0191-1292 THROUGH 1296 ARE NOT EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(10), G.S.

[109]. 118. With respect to IC-2016-0191-133 through 134 and IC-2016-0191-711 through 713, it is found that the respondents failed to identify the recipients of such records.  It is found that the respondents failed to prove that such individuals were “attorneys” or “clients,” (NOR ARE THESE FACTS EVIDENT FROM THE RECORDS THEMSELVES) and that therefore, the respondents failed to prove that IC-2016-0191-133 through 134 and IC-2016-0191-711 through 713, constitute communications within the meaning of §1-210(b)(10), G.S.  Accordingly, it is concluded that such records are not exempt from disclosure pursuant to §1-210(b)(10), G.S.

[110] 119. Based on the foregoing, it is concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding the records described in paragraphs [108 and 109] 116, 117 and 118, above.

[111] 120. With respect to IC-2016-0191-1592 through 1614, the respondents neglected to identify the corresponding exemption pursuant to which such record is claimed to be exempt.  It is found, however, that such record is identical to IC-2016-0191-327 through 349, which the respondents claimed is, and was found to be, exempt from disclosure pursuant to §1-210(b)(10), G.S.  Accordingly, it is found that IC-2016-0191-1592 through 1614 is exempt from disclosure pursuant to §1-210(b)(10), G.S.

[112] 121.  With respect to IC-2016-0191-155 through 212, IC-2016-0191-213 through 272, IC-2016-0191-1278, IC-2016-0191-1279, IC-2016-0191-1280 through 1284, IC-2016-0191-1285 through 1286, IC-2016-0191-1287 through 1289, and IC-2016-0191-1417 through 1522, the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(1), G.S., only.  It is found, however, that the respondents failed to prove that such records are “preliminary drafts or notes” within the meaning of §1-210(b)(1), G.S.  Accordingly, it is concluded that IC-2016-0191-155 through 212, IC-2016-0191-213 through 272, IC-2016-0191-1278, IC-2016-0191-1279, IC-2016-0191-1280 through 1284, IC-2016-0191-1285 through 1286, IC-2016-0191-1287 through 1289, and IC-2016-0191-1417 through 1522, are not exempt from disclosure pursuant to §1-210(b)(1), G.S., and that the respondents violated §§1-210(a) and 1-212(a), G.S., by withholding such records.

[113] 122. With respect to IC-2016-0191-1579 through 1591, the respondents claimed that such records are exempt from disclosure pursuant to §1-210(b)(13), only.  After careful inspection of IC-2016-0191-1579 through 1591, it is found that [they] SUCH RECORDS are NOT “records of an investigation,” of a whistleblower complaint, and therefore are NOT exempt from disclosure.  Accordingly, the respondents [did not] VIOLATED the FOI Act by withholding such records from disclosure. 

123. AT THE FEBRUARY 22ND COMMISSION MEETING, THE RESPONDENTS CLAIMED FOR THE FIRST TIME THAT CERTAIN RECORDS WERE ALREADY DETERMINED BY THE COMMISSION TO BE EXEMPT FROM DISCLOSURE. THE RESPONDENTS CLAIMED THAT IN A PRIOR CASE INVOLVING THESE SAME PARTIES, DOCKET #FIC 2015-055; BROWN V. COMPTROLLER, STATE OF CONNECTICUT, OFFICE OF THE STATE COMPTROLLER, ET. AL. (OCTOBER 23, 2015), THE FOLLOWING DOCUMENTS WERE FOUND TO BE EXEMPT PURSUANT TO §§1-210(b)(1) AND 1-210(b)(13), G.S., RESPECTIVELY.  THE RESPONDENTS IDENTIFIED THE RECORDS AT ISSUE IN THIS MATTER AS FOLLOWS:  MC: IC-2016-0191-104 THROUGH 105, I C-2016-0191, IC-2016-0191-734 THROUGH 735, IC-2016-0191-736 THROUGH 737; NB: IC-2016-0191-22 THROUGH 23, IC-2016-0191-283 THROUGH 284, IC-2016-0191-955 THROUGH 956, IC-2016-0191-1077 THROUGH 1078; BH: IC-2016-0191-141 THROUGH 142, IC-2016-0191-184 THROUGH 185, IC-2016-0191-247 THROUGH 251, IC-2016-0191-1066 THROUGH 1067, IC-2016-0191-1079 THROUGH 1080, AND IC-2016-0191-1176 THROUGH 1177. 

124.  THE RESPONDENTS’ CLAIMS RAISED FOR THE FIRST TIME AT THE FEBRUARY 22ND COMMISSION MEETING, COMPEL THE COMMISSION TO REVIEW THE RECORDS SUBMITTED IN CAMERA IN CONNECTION WITH THE PRIOR CASE, DOCKET #FIC 2015-055.  ACCORDINGLY, THE IN CAMERA RECORDS FROM DOCKET #FIC 2015-055 ARE HEREBY MADE PART OF THE RECORD IN THIS MATTER.  THEY WILL BE MAINTAINED IN CAMERA AND WILL BE UTILIZED SOLELY FOR THE PURPOSE OF ASSESSING THE RESPONDENTS’ CLAIMS DESCRIBED IN PARAGRAPH 123, ABOVE.  SEE REGULATIONS OF CONNECTICUT STATE AGENCIES SECTION 1-21j-37.

125.  AFTER A CAREFUL INSPECTION OF THE FOLLOWING IN CAMERA RECORDS SUBMITTED IN THIS MATTER, IT IS FOUND THAT SUCH RECORDS ARE DUPLICATES OF A TWO-PAGE EMAIL IDENTIFIED IN DOCKET #FIC 2015-055 AS IC-2015-055-25 THROUGH 26, WHICH THE COMMISSION DETERMINED TO BE EXEMPT PURSUANT TO §1-210(b)(13), G.S.:  MC: IC-2016-0191-104 (LINES 18-32) THROUGH 105, IC-2016-0191-734 (LINES 8-36) THROUGH 735, IC-2016-0191-736 (LINES 18-29) THROUGH 737; NB: IC-2016-0191-22 THROUGH 23, IC-2016-0191-283 (LINES 18-32) THROUGH 284, IC-2016-0191-1077 (LINES 8-36) THROUGH 1078; BH:  IC-2016-0191-141 (LINES 8-36) THROUGH 142, IC-2016-0191-184 (LINES 18-32) THROUGH 185, IC-2016-0191-1066 (LINES 8-36) THROUGH 1067, IC-2016-0191-1079 (LINES 18-29) THROUGH 1080, AND IC-2016-0191-1176 (LINES 18-29) THROUGH 1177.  ACCORDINGLY, IT IS CONCLUDED THAT SUCH RECORDS ARE “RECORDS OF AN INVESTIGATION,” OF A WHISTLEBLOWER COMPLAINT, AND THEREFORE ARE EXEMPT FROM DISCLOSURE.  THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH RECORDS FROM DISCLOSURE.

126.  WITH RESPECT TO MC: IC-2016-0191-104 (LINES 1-17), IC-2016-0191-734 (LINES 1-7), IC-2016-0191-736 (LINES 1-17); NB:  IC-2016-0191-283 (LINES 1-17), IC-2016-0191-1077 (LINES 1-7); BH: IC-2016-0191-141 (LINES 1-7), IC-2016-0191-184 (LINES 1-17), IC-2016-0191-1066 (LINES 1-7), IC-2016-0191-1079 (LINES 1-17), AND IC-2016-0191-1176 (LINES 1-17), IT IS FOUND THAT THE RESPONDENTS HAVE FAILED TO PROVE THAT SUCH RECORDS ARE “RECORDS OF AN INVESTIGATION,” OF A WHISTLEBLOWER COMPLAINT, AND THEREFORE ARE NOT EXEMPT FROM DISCLOSURE.  ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENTS VIOLATED §§1-210(a) AND 1-212(a), G.S., BY WITHHOLDING MC: IC-2016-0191-104 (LINES 1-17), IC-2016-0191-734 (LINES 1-7), IC-2016-0191-736 (LINES 1-17); NB:  IC-2016-0191-283 (LINES 1-17), IC-2016-0191-1077 (LINES 1-7); BH: IC-2016-0191-141 (LINES 1-7), IC-2016-0191-184 (LINES 1-17), IC-2016-0191-1066 (LINES 1-7), IC-2016-0191-1079 (LINES 1-17), AND IC-2016-0191-1176 (LINES 1-17), FROM DISCLOSURE.

127.  AFTER A CAREFUL INSPECTION OF NB: IC-2016-0191-955 THROUGH 956, IT IS FOUND THAT SUCH RECORD IS A DUPLICATE OF A TWO-PAGE EMAIL IDENTIFIED IN DOCKET #FIC 2015-055 AS IC-2015-055-34 THROUGH 35, WHICH THE COMMISSION DETERMINED TO BE EXEMPT PURSUANT TO §1-210(b)(13), G.S.  ACCORDINGLY, IT IS CONCLUDED THAT NB: IC-2016-0191-955 THROUGH 956 IS A “RECORD OF AN INVESTIGATION,” OF A WHISTLEBLOWER COMPLAINT, AND THEREFORE IS EXEMPT FROM DISCLOSURE.  THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH RECORD FROM DISCLOSURE. 
 
 128.   AFTER A CAREFUL INSPECTION OF BH: IC-2016-0191-247 THROUGH 251, IT IS FOUND THAT SUCH RECORD IS NOT AN EXACT DUPLICATE OF THE DOCUMENT IDENTIFIED B THE RESPONDENTS AS IC-2015-055-8 THROUGH 13 IN DOCKET #FIC 2015-055, WHICH THE COMMISION DETERMINED TO BE EXEMPT PURSUANT TO §1-210(b)(1), G.S.  ACCORDINGLY, IT IS FOUND THAT THE RESPONDENTS HAVE FAILED TO PROVE THAT BH: IC-2016-0191-247 THROUGH 251 IS EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(1), G.S., AND THAT THE RESPONDENTS VIOLATED §§1-210(a) AND 1-212(a), G.S., BY WITHHOLDING SUCH RECORD.

129.  THE RESPONDENTS ALSO CLAIMED, IN THEIR FEBRUARY 24TH BRIEF, THAT MC:  IC-2016-0191-725 THROUGH 728, IS EXEMPT PURSUANT TO §1-210(b)(13), G.S.   THE COMMISSION NOTES THAT MC: IC-2016-0191-726 (LINES 20-36) THROUGH 728 IS A DUPLICATE OF A DOCUMENT IDENTIFIED IN DOCKET #FIC 2015-055 AS IC-2015-055-44 THROUGH 46, WHICH THE COMMISSION DETERMINED TO BE EXEMPT PURSUANT TO §1-210(b)(13), G.S.  ACCORDINGLY, IT IS CONCLUDED THAT MC: IC-2016-0191-726 (LINES 20-36) THROUGH 728 IS A “RECORD OF AN INVESTIGATION,” OF A WHISTLEBLOWER COMPLAINT, AND THEREFORE IS EXEMPT FROM DISCLOSURE.  THE RESPONDENTS DID NOT VIOLATE THE FOI ACT BY WITHHOLDING SUCH RECORD FROM DISCLOSURE.

130.  WITH RESPECT TO MC: IC-2016-0191-725 THROUGH 726 (LINES 1-19), IT IS FOUND THAT THE RESPONDENTS HAVE FAILED TO PROVE THAT SUCH RECORDS ARE “RECORDS OF AN INVESTIGATION,” OF A WHISTLEBLOWER COMPLAINT, AND THEREFORE ARE NOT EXEMPT FROM DISCLOSURE.  ACCORDINGLY, IT IS CONCLUDED THAT THE RESPONDENTS VIOLATED §§1-210(a) and 1-212(a), G.S., BY WITHHOLDING SUCH RECORDS FROM DISCLOSURE.
 


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

1. The respondents shall provide the complainant with copies of the in camera records
described in paragraphs [30, 33, 36, 38, 40, 42, 46, 48, 49, 53, 54, 56, 57, 63, 64, 65, 68, 69, 73, 74, 76, 77, 79, 85, 86, 88, 89, 97, 98, 99, 100, 102, 103, 108, 109 and 112] 35, 38, 41, 43, 45, 47, 51, 53, 54, 58, 59, 61, 62, 68, 69, 70, 73, 74, 78, 79, 83, 84, 86, 92, 93, 95, 96, 104, 105, 106, 107, 108, 110, 111, 116, 117, 118, 121, 122, 126, 128 AND 130 of the findings, above, free of charge.

2. Henceforth, the respondents shall strictly comply with the disclosure provisions in
§§1-210(a) and 1-212(a), G.S.








Content Last Modified on 3/28/2017 11:27:29 AM