FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on June 7, 2004, at which time the complainants and the respondent appeared, 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 §1-200(1), G.S.

 

2.  It is found that, by letter dated November 17, 2003, the complainants requested that the Hartford Police Department provide them with a copy of the settlement agreement between Gilberto Rivera and the City of Hartford [hereinafter “the City”].

 

3.  It is found that, by letter dated November 19, 2003, the chief of the Hartford police department notified the complainants that no such agreement was maintained or kept on file by the police department and informed the complainants that he had forwarded the request described in paragraph 2, above, to the office of the corporation counsel. 

 

4.  It is found that, sometime subsequent to November 19, 2003, the respondent herein began a search of the records of the office of the corporation counsel for the settlement agreement, and that he could not locate such record. 

 

5.  It is found that the settlement agreement stemmed from a federal lawsuit filed by Mr. Rivera against the City, in which the City was represented by outside counsel.  It is also found that the respondent contacted such outside counsel and requested a copy of the settlement agreement to fulfill the complainants’ request, described in paragraph 2, above. 

 

6.  It is found that such outside counsel then provided the respondent with a copy of such agreement, which was dated December 3, 2003, but with the settlement dollar amount, as well as the signatures of the representatives of the City of Hartford, redacted [hereinafter “the redacted record”].   It is found that, upon receipt of the redacted record, the respondent provided the complainants with a copy thereof, on or about December 31, 2003. 

 

7.  It is found that, by letter dated February 2, 2004, the complainants then requested that the respondent provide them with the December 5, 2003 settlement agreement, in unredacted form [hereinafter “the requested record”]. 

 

8.  Having failed to receive a copy of the requested record, by letter dated February 11, 2004, and filed February 13, 2004, the complainants appealed to the Commission alleging that the respondent had violated the Freedom of Information [hereinafter “FOI”] Act in this matter.  The complainants requested that a civil penalty be imposed against the respondent. 

 

9.  Section 1-200(5), G.S., defines “public records” as follows:

 

“…any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”

 

10.  Section 1-210(a), G.S., provides, in relevant part:

 

“[e]xcept 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.”

           

11.  Section 1-212(a), G.S., provides, in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

12.  At the hearing in this matter, the respondent contended that he does not maintain or keep on file the requested record, and that he is not obligated to create or locate records that he does not maintain or keep on file in his offices.   The respondent also contended that a federal court order sealed the amount of the settlement. 

 

13.  It is found that the respondent does not have physical custody of the requested record within his office.  However, it is also found that outside counsel for the City does have physical custody of such record.

 

14.   It is concluded that the requested record is a public record within the meaning of §1-200(5), G.S., since such record is information relating to the conduct of the public's business owned and used by the respondent.     

 

15.  It is found that the settlement agreement described in paragraph 2, above, contains a confidentiality provision, which provides that Mr. Rivera may not disclose the provisions thereof, but which does not bind the City in such a manner.

 

16.  Moreover, the Commission takes administrative notice that it has previously ruled when addressing the disclosure of a settlement agreement between a public agency and a public employee, that such agency may not simply contract away the public's right to know under the FOI Act by including a provision prohibiting any party to the agreement from disclosing its terms.   See e.g. contested case #s FIC 2001-530, David Critchell and Waterbury Republican-American v. Corporation Counsel, City of Torrington (Final Decision dated June 26, 2002), and FIC 94-063, Carol L. Panke v. Bloomfield Town Manager (Final Decision dated August 10, 1994).

 

17.  However, the Commission also takes administrative notice of City of Hartford v. Chase, 942 F. 2d 130 (1991), which dealt with the disclosure of documents pertaining to a settlement agreement under the FOI Act when a court has entered a confidentiality order with respect to such documents.  In City of Hartford, the court emphasized that a federal court’s power to seal documents takes precedence over FOI Act rules that would otherwise allow documents to be disclosed.

 

18.  It is found that the transcript of the federal settlement conference is sealed at the federal district court. 

 

19.  At the hearing in this matter, evidence was admitted consisting of a letter to the Commission from James Brewer, attorney for Mr. Rivera, stating that the requested record has been ordered confidential by United States Magistrate Judge Thomas Smith.  However, neither Mr. Brewer, who did not appear to testify at the hearing in this matter, nor the respondent, could produce a federal court order of confidentiality with respect to the settlement agreement.

 

20.  It is found that, on November 13, 2003, Judge Smith issued a memorandum and order in the case between Mr. Rivera and the City, indicating that such case had been settled, but that such memorandum and order does not include an order of confidentiality. 

 

21.   At the hearing in this matter, the hearing officer informed the parties that, should the respondent locate a federal court order ordering confidentiality, he could so notify the Commission and petition to reopen this matter.  The respondent did not notify the Commission in that regard. 

 

22.  It is found that the respondent has not offered any credible evidence that the federal court has entered an explicit order mandating the confidentiality of the requested record.  It is concluded that the requested record is not protected from disclosure pursuant to City of Hartford, supra.

 

            23.  It is therefore concluded that the respondent violated the disclosure provision of §1-210(a), G.S., by failing to provide the complainants with a copy of the requested record.

 

24.  The Commission declines to consider the imposition of a civil penalty in this matter. 

 

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

 

1.  Forthwith, the respondent shall provide the complainants with an unredacted copy of the requested record.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2004.

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

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:

 

Alexander Wood and The

Manchester Journal-Inquirer

306 Progress Drive

PO Box 510

Manchester, CT 06045-0510

 

                    Alexander Aponte, Corporation

                    Counsel, City of Hartford

c/o Tricia J. Johnson, Esq.

Assistant Corporation Counsel

550 Main Street

Hartford, CT 06103

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-071FD/paj/10/19/2004