FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Sydney M. Libby,
Complainant
against Docket #FIC 94-165
Director, Middletown Finance Department,
Respondent May 24, 1995
The above-captioned matter was heard as a contested case on November 29, 1994, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint filed May 25, 1994, the complainant appealed to the Commission, alleging that his request for certain records had been denied by the respondent on May 23, 1994.
3. It is found that the complainant on May 18, 1994 requested from the respondent copies of all pending and paid legal bills concerning the hiring of lawyers for city personnel facing ethics complaints.
4. It is found that the complainant had filed ethics complaints against three city employees.
5. It is found that the city paid for the employees' legal representation by outside counsel.
6. It is found that bills for the employees' legal representation are maintained by the finance department.
7. It is found that the bills submitted by each counsel are public records within the meaning of 1-18a(d) and 1-19(a), G.S.
8. It is found that the respondent finance department by letter dated May 23, 1994 refused the complainant's request.
Docket #FIC 94-165 Page 2
9. It is also found that the respondent, sometime in late June or early July of 1994, provided the complainant with redacted copies of the requested bills.
10. The respondent maintains that it is not required to provide the requested bills pursuant to 1-82a(d) and 7-148h, G.S.
11. Section 1-82a(d), G.S., provides in relevant part:
If the [state ethics] commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known....
12. Section 7-148h, G.S., in turn provides that the provisions of 1-82a(d) are applicable to municipal ethics commissions.
13. It is found that no probable cause was found against any of the three city employees.
14. The respondent therefore maintains that it is prohibited by 1-82a(d) and 7-148h, G.S., from disclosing the names of the three employees who were the subjects of the ethics complaints.
15. The respondent also maintains that only the names of the employees, or information that would identify them, was redacted from the bills ultimately provided to the complainant.
16. It is concluded that 1-82a, by requiring an ethics commission to keep an ethics complaint confidential, prohibits the disclosure by the ethics commission of the name of the person who is the subject of the complaint.
17. It is found, however, that the content of the redacted bills that were provided to the complainant strongly imply that more than names or identifying information was redacted. For example:
"Review of agenda and minutes of XXXXXXXXX Committee meetings from January 8, 1993 through February 10, 1994 ....
Docket #FIC 94-165 Page 3
"Review Middletown XXXXXXXXXXXX regarding requirements of a properly filed XXXXXXX XXXXXXX. Commence research regarding XXXXXXXXX format and potential grounds for Motion to Dismiss ....
18. However, aside from the issue of whether more than names were redacted from the bills, it is also found that the bills submitted by outside counsel representing the subjects of ethics complaints, and in the custody of the city's finance department, do not constitute the record of an ethics commission investigation within the meaning of 1-82a(d), G.S.
19. Indeed, it is found that the respondent finance department, in retaining records of attorney billings paid for by the city in defense of ethics complaints against its employees, acted--by necessity--entirely independently of the ethics commission that was to investigate the complaints.
20. It is therefore found that the respondent finance department's records of attorney billings paid by the city in defense of its employees are entirely separate from the ethics commission's record of its investigation.
21. Also, it is found that the finance department was neither a complainant, respondent, witness, designated party, or ethics commission or staff member within the meaning of 1-82a(d).
22. Further, it is concluded that the prohibition in 1-82a(d) against disclosure by an ethics commission of its investigatory records is entirely distinct from any controls on the disclosure of records, not of the investigation, but of the defense, at the city's expense, of the accused employees.
23. It is therefore concluded that the respondent failed to prove that any portion of the requested records is exempt from disclosure.
24. Section 1-19(a), G.S., provides in relevant part:
Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15.
26. It is therefore concluded that the respondent violated 1-19(a), G.S., by failing to provide unredacted copies of the requested attorney billings promptly to the complainant.
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The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide to the complainant copies of the requested attorney billings.
2. In complying with paragraph 1 of the order above, the respondent may redact the names of those individuals who were the subjects of the ethics commission investigations.
3. Henceforth the respondent shall strictly comply with the requirements of 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 24, 1995.
Debra L. Rembowski
Clerk of the Commission
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PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
SYDNEY M. LIBBY
251 Court Street, Apt. 3
Middletown, CT 06457
DIRECTOR, MIDDLETOWN FINANCE DEPARTMENT
c/o Timothy P. Lynch, Esq.
Middletown City Attorney's Office
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457
Debra L. Rembowski
Clerk of the Commission