FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 31, 2007, at which time the complainants 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 §1-200(1)(A), G.S.

 

2.      It is found that by letter dated July 12, 2007, the complainants made a written request for copies of records, from January 1, 2007 through the present, relating to the respondent’s participation in an immigration enforcement action that resulted in the arrest of approximately 29 people in the New Haven area on the morning of June 6, 2007.  The complainants requested:

 

a.       All records relating to the planning, coordination, execution of and follow-up on the June 6 arrests;

 

b.      All records of any communication with any officer or staff of the U.S. Department of Homeland Security (“DHS”), including, but not limited to, the Office of the Bureau of Immigration & Customs Enforcement (“ICE”), pertaining to the June 6 arrests;

 

c.       All records of any communication with any officer or staff of the U.S. Marshal Service pertaining to the June 6 arrests;

 

d.      All records of any communication with any officer or staff of the New Haven municipal government, including, but not limited to, the New Haven Police Department, pertaining to the June 6 arrests;

 

e.       All records pertaining to any communication with the press about the June 6 arrests; and

 

f.        All records detailing total staff time and money spent planning, coordinating and executing the June 6 arrests.

 

3.      It is found that, by the same letter of July 12, 2007, the complainants also requested copies of all records created after December 31, 2001 related to the following:

 

a.       Any and all complaints received about the activities of alleged immigrants, or Hispanics in general, in or around New Haven, Connecticut, and all records pertaining to any follow-up action taken in response to such complaints;

 

b.      All materials mentioning the New Haven municipal identification card and the “Elm City Resident Card,” including but not limited to mention of the debate before the New Haven Board of Aldermen and its passage on June 4, 2007;

 

c.       All materials mentioning the New Haven Police Department General Order 06-02; and

 

d.      All materials mentioning the creation, existence or possibility of a “sanctuary” or policy of non-cooperation of New Haven police officers with federal immigration officials.

 

4.      It is found that, by letter dated July 20, 2007, the respondent acknowledged receipt of the complainants’ request for the records described in paragraphs 2 and 3, above.  It is found that such letter indicated the respondent’s intent to review and respond to the complainants’ request, but did not include copies of any of the records that the complainants requested.

 

 

5.      It is found that by letter dated July 31, 2007 and filed August 2, 2007, the complainants appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to provide copies of any of the records described in paragraphs 2 and 3, above.

 

6.      It is found that the respondent gathered records from within his agency that were responsive to the complainants’ request.  It is found that, because DHS prepared the records, the respondent believed it was appropriate to give DHS the opportunity to exempt information contained in such records pursuant to the federal FOI Act, 5 U.S.C. §552.  It is found that DHS reviewed the records and sent copies to the respondent that included notations of what information DHS would exempt pursuant to the federal FOI Act.

 

7.      It is found that when the respondent received the records back from DHS, he notified the complainants, by letter dated October 1, 2007, that he was providing copies of records described in paragraphs 2 and 3, above.  It is found that the respondent provided 14 pages of records, of which 13 pages contained redactions.  It is found that the respondent withheld entirely an additional 11 pages of records.

 

8.      It is found that the records provided to the complainants and those withheld entirely contained redactions of information claimed to be exempt pursuant to both the Connecticut and the federal FOI Acts.

 

9.      It is found that on October 30, 2007, the respondent provided copies of some of the same records to the complainant, but with fewer redactions.  It is found that, on that date, the respondent also provided redacted copies of three additional e-mails.  It is found that the respondent claimed the redacted information was exempt pursuant to provisions of both the Connecticut and the federal FOI Acts.

 

10.  Upon order of the hearing officer, the respondent submitted unredacted copies of the records, described in paragraphs 9, above, for in camera inspection, which pages shall be identified herein as IC-2007-416-1 through IC-2007-416-21.  It is found that the respondent failed to include with his in camera submission three e-mails (one dated June 4, 2007 and two dated June 19, 2007) that he provided to the complainants with redactions on October 1, 2007.

 

11.  Section 1-200(5), G.S., defines “public records or files” as:

 

Any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, … whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

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

 

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 . . .  receive a copy of such records in accordance with section 1-212.

 

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

 

14.  It is found that the respondent submitted insufficient evidence that it was reasonable to delay nearly three months before providing only 14 pages of copies of records to the complainants.

 

15.  It is concluded that the respondent violated the FOI Act by failing promptly to provide the records described in paragraphs 2 and 3, above.

 

16.  With respect to whether the records described in paragraphs 2 and 3, above, are public records within the meaning of the Connecticut FOI Act, it is found that several of the records that the complainants requested were prepared by the respondent, and several others were prepared by DHS or ICE.  It is found that DHS or ICE sent the records it prepared to the respondent prior to the complainants’ request.

 

17.  It is found that the respondent “used, received or retained” the records he received from the federal agencies and the records he prepared, within the meaning of §1-200(5), G.S. 

 

18.  It is found that the respondent also “maintained or kept on file” the records he received from the federal agencies and the records he prepared, within the meaning of §1-210(a), G.S.

 

19.  It is found, therefore, that the records described in paragraph 2 and 3, above, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

 

20.  Upon careful examination of IC-2007-416-1 through IC-2007-416-21, it is found that the records consist of three pages of a Department of Public Safety Investigation Report, a single page handbill, cover pages to two facsimile transmissions, one page with a list of 29 names and corresponding identifying information, three pages containing six e-mail messages, one page with a list of 32 names and corresponding identifying information, and 10 pages of records that the respondent publicly identified as the  ICE “Operational Order/Plan” for the New Haven arrests.

 

21.  The respondent claims that the federal FOI Act, applied through §1-210(a), G.S., exempts from mandatory disclosure the redacted information in all the records.  The respondent further claims that the Connecticut FOI Act also exempts from mandatory disclosure the redacted information on the two lists of names (IC-2007-416-7 and IC-2007-416-11), one of the e-mails (IC-2007-416-10), and the “Operational Order/Plan” (IC-2007-416-12 to IC-2007-416-21).

 

22.  It is found, however, that the federal FOI Act, by its express terms, applies only to federal agencies.  The federal FOI Act, 5 U.S.C. §551, defines agency, in relevant part, as follows:

 

“[A]gency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency.

 

23.  It is found that the respondent is not an authority of the Government of the United States, within the meaning of 5 U.S.C. §551.

 

24.  It is found, moreover, that 5 U.S.C. §552 is not a “federal law” that provides an exception to the disclosure requirement of §1-210(a), G.S.  As the complainants observed in their Memorandum of Law submitted in advance of the hearing in this matter, it is found that a federal law provides an exception to §1-210(a)’s requirement of mandatory disclosure only where the federal law prohibits disclosure.  It is found that the federal FOI Act requires agencies to disclose certain records, but does not prohibit disclosure of any public records. “(1) Each agency shall make available to the public information as follows …” 5 U.S.C. §552(a).  It is found that subsection (b) excuses agencies from the affirmative duty of disclosure in certain circumstances.  “This section [(a)] does not apply to …” 5 U.S.C. §552(b).

 

25.  It is found, therefore, that the redactions to the copies of records provided to the complainants that were based on a claim of exemption pursuant to provisions of the federal FOI Act and §1-210(a), G.S., are without merit. 

 

26.  With respect to the respondent’s other claims of exemption pursuant to the Connecticut FOI Act, the respondent contends that §1-210(b)(3)(D), G.S., permits him to exempt one line of the e-mail records (IC-2007-416-10) and the 10-page Operations Plan/Order (IC-2007-12 through IC-2007-21).

 

27.  Section 1-210(b)(3)(D), G.S., provides in relevant part,

 

Nothing in the Freedom of Information Act shall be construed to require disclosure of … records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of … (D) investigatory techniques not otherwise known to the general public …

 

28.  With respect to whether the records described in paragraph 26, above, were compiled in connection with the detection or investigation of crime, it is found that ICE compiled the records in anticipation of the service of administrative warrants on persons suspected of having violated civil immigration laws.  It is found that neither ICE nor DHS undertook the operation for the enforcement of state or federal criminal law.

 

29.  It is found that the respondent’s role in the operation was to assist ICE agents and facilitate their enforcement action.  It is found that the respondent did not consider the operation to be a criminal law enforcement activity.  It is found that the operation produced no arrests for violation of federal or state criminal law.

 

30.  It is found that records compiled in connection with the detection or investigation of administrative regulations are not compiled in connection with the detection or investigation of crime, within the meaning of  §1-210(b)(3), G.S.  Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety, Docket #FIC1996-153 (Internal Affairs report was not exempt, because it was “an investigation into alleged violations of administrative regulations, and was not compiled in connection with the detection or investigation of crime.” (Emphasis in original.))

 

31.  It is found that none of the records described in paragraph 26, above, were “compiled in connection with the detection or investigation of crime,” within the meaning of §1-210(b)(3), G.S.

 

32.  The respondent nonetheless contends that disclosure of the records described in paragraph 26, above, would reveal an investigatory technique not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G.S.

 

33.  It is found that the records of the Operations Plan (IC-2007-12 through IC-2007-21), are broad-based operating procedures.  Details of the some of the procedures reveal anticipated steps in the investigation that ICE undertook to prepare for the June 6 arrests.  It is found that nothing in the Operations Plan reveals any technique of the respondent.

 

34.  It is found that the claimed exempt information in the e-mail message (IC-2007-416-10) does reveal an investigatory technique of the respondent. 

 

35.  It is found, however, that none of the investigatory techniques revealed in IC-2007-416-10 or IC-2007-12 through IC-2007-21 are otherwise unknown to the general public, within the meaning of §1-210(b)(3)(D), G.S.  It is found that the respondent’s investigatory technique, described in paragraph 34, above, is not at a level beyond what the public perceives through television or other media, nor is it so detailed as to reveal any unknown aspects of otherwise known techniques.  Donovan v. Greenwich Police Department, FIC1987-173, (remanded hearing, February 26, 1992).

 

36.  It is found, with respect to the investigatory techniques revealed in the Operations Plan (IC-2007-12 through IC-2007-21), that the Operations Plan does not reveal any detailed information that is not already publicly available concerning the widely known “Operation Return to Sender.”  It is found that Exhibits E and F in this matter support the complainants’ contention that any investigatory techniques in the redacted records are not unknown to the general public. 

 

37.  It is found that the records described in paragraph 26, above, would not reveal an investigatory technique not otherwise known to the general public, within the meaning of §1-210(b)(3)(D), G.S.  It is concluded that the respondent violated the Connecticut FOI Act by failing to provide such records to the complainants.

 

38.  With respect to IC-2007-416-7 and IC-2007-416-11, which are two lists of names and accompanying identifying information, the respondent claims that §1-210(b)(2), G.S., permits him to refuse to disclose those records entirely.

 

39.  Section 1-210(b)(2), G.S. permits the non-disclosure of “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy.”

 

40.  The Supreme Court set forth the test for the exemption contained in §1-210(b)(2), G.S., in Perkins v. Freedom of Information Commission, 228 Conn. 158, 175 (1993).   The claimant must first establish that the files in question are personnel, medical or similar files.  Second, the claimant must show that disclosure of the records would constitute an invasion of personal privacy.  In determining whether disclosure would constitute an invasion of personal privacy, the claimant must establish both of two elements: first, that the information sought does not pertain to legitimate matters of public concern, and second, that the disclosure of such information is highly offensive to a reasonable person.  The Commission takes administrative notice of the multitude of court rulings, commission final decisions,1 and instances of advice given by the Commission staff members,2 which have relied upon the Perkins test, since its release in 1993.

 

41.  The respondent claims the records described in paragraph 38, above, are files “similar” to personnel or medical files, within the meaning of §1-210(b)(2), G.S.

 

42.  It is found that the respondent failed to submit any evidence concerning the nature or purpose of the information contained in the records described in paragraph 38, above.

 

43.  It is found that the records described in paragraph 38, above, are not “similar” files within the meaning of §1-210(b)(2), G.S. 

 

44.  Accordingly, it is found that §1-210(b)(2), G.S., does not permit the respondent to refuse to disclose the records identified as IC-2007-416-7 and IC-2007-416-11.  It is concluded that the respondent violated the FOI Act by failing to provide such records to the complainants.

 

45.  With respect to the three e-mails, described in paragraph 10, above, which the respondent provided in redacted form to the complainants on October 1, 2007, but failed to submit in unredacted form for in camera review, it is found that the respondents failed to prove that the redacted information is exempt from disclosure pursuant to the Connecticut FOI Act.

 

46.  Accordingly, it is concluded that the respondent violated §1-210(a) and §1-212(a), G.S., of the Connecticut FOI Act by failing to provide copies of the three e-mail messages without redaction to the complainants.

 

47.  With respect to the complainants’ request for records described in paragraph 3, it is found that none of the records provided to the complainants or submitted in camera are responsive to that request.  It is found that the respondent provided insufficient evidence that his search for such records was diligent.

 

48.  With respect to the diligence of the respondent’s search for records described in paragraph 2, above, it is found that the respondent did not attempt to obtain copies of archived, deleted, or sent e-mail communications.

 

49.  Accordingly, it is concluded that the respondent violated the FOI Act by failing to prove that he provided all the records that the complainants requested, as described in paragraphs 2 and 3, above.

 

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 the complainants with unredacted copies of the records previously provided with redactions to the complainants on October 1, 2007 and October 30, 2007.

 

2.      As agreed by the parties, the respondent shall provide to the complainants an unredacted copy of the record described in paragraph 2.f, above.

 

3.      The respondent shall forthwith undertake a diligent search for the e-mail communications described in paragraph 48, above.  As agreed by the parties, the respondent is to search for e-mails from April 1, 2007 through July 12, 2007.  The respondent shall provide the complainants with all unredacted copies of any records produced by such search and shall provide an affidavit as to the diligence of his search.

 

4.      The respondent shall forthwith undertake a diligent search for the records described in paragraphs 3 and 47, above.  The respondent shall provide the complainants with all copies of any records produced by such search and shall provide an affidavit as to the diligence of his search.

 

5.  The respondent shall henceforth strictly comply with the requirements of §1-210(a) and §1-212(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its special meeting of November 8, 2007.

 

 

________________________________

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:

 

Junta for Progressive Action, Inc.;

Unidad Latina en Accion; and

The Jerome N. Frank

Legal Services Organization

c/o Michael Wishnie, Esq.,

Simon Moshenberg and 

Justin Cox

PO Box 209090

New Haven, CT 06520-9090

 

John A. Danaher III, Commissioner,

State of Connecticut,

Department of Public Safety

c/o Henri Alexandre, Esq.

Assistant Attorney General

110 Sherman Street

Hartford, CT 06105

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-416FD/paj/11/8/2007

 

                                                                       

 

 

 

 

 

 

 

 

 

 

 

 

1.  ENDNOTES

 

A. Court cases

 

Payne v. City of Danbury, 267 Conn. 669 (2004); Director, Retirement & Benefits Services Div. v. FOIC, 256 Conn. 764 (2001); Rocque v. FOIC, 255 Conn. 651 (2001); Dept. of Public Safety v FOIC, 242 Conn. 79 (1997); Conn. Alcohol & Drug Abuse Commission v. FOIC, 233 Conn.28 (1995); Kurecza v. FOIC, 228 Conn. 271 (1994); First Selectman v. FOIC, 60 Conn. App. 64 (2000); Dept. of Children & Families v. FOIC, 48 Conn. App. 467 (1998); Almeida v. FOIC, 39 Conn. App. 154 (1995); Dept. of Transportation v. FOIC, Super Ct JD NB CV 01-0508810 (Schuman, J. 2001); City Treasurer, City of Hartford v. FOIC, Super Ct JD NB CV 99 0496222 (Cohn, J. 2000); Rocque, Commissioner of Environmental Protection v. FOIC, Super Ct JD NB CV 98 0492734 (Hartmere, J. 1999); Director, Retirement & Benefits Services Div. v. FOIC, Super Ct JD NB CV 98 0492692 (Hartmere, J. 1999); First Selectman, Town of Ridgefield v. FOIC, Super Ct JD NB CV 99‑0493041 (McWeeny, J. 1999); Chairman, Bd. of Education Town of Darien v. FOIC, Super Ct JD Htfd NB CV 97 0575674 (McWeeny, J. 1998); Waters, Commissioner of State of Conn. Dept. of Administrative Services v. FOIC, Super Ct JD Htfd/NB CV 96 0565853 (McWeeny, J. 1997); Armstrong, Commissioner of State of Conn. Dept. Of Correction v. FOIC, Super Ct JD Htfd/NB CV 96 0563608 (McWeeny, J. 1997); Dept. of Children & Families v. FOIC, Super Ct JD Htfd NB CV 96 0562546 (McWeeny, J. 1997); State of Conn. Office of Protection and Advocacy for Persons with Disabilities v. FOIC, Super Ct JD Htfd/NB CV 95 0554467 (McWeeny, J. 1997); Youngquist v. FOIC, Super Ct JD Htfd/NB, CV 95 0554601 (McWeeny, J. 1996 and 1997); Cracco v. FOIC, Super Ct JD Htfd/NB, CV 94 0705371 (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 93 0705370, (Dunnell, J. 1995); Cracco v. FOIC, Super Ct JD Htfd NB, CV 94 0705369, (Dunnell, J. 1995); Simonds v. FOIC, Super Ct JD Htfd/NB, CV 93 070 41 39 (Maloney, J. 1994); Gallagher v. FOIC, Super Ct JD Htfd/NB, CV 93 0531514 (Maloney, J. 1994).

 

 

B. FOIC Decisions

 

Docket #FIC 2003-285;  Frank C. Violissi, Jr. v. First Selectman, Town of Chester (May 26, 2004); Docket #FIC 2003-074; Heather M. Henderson v. State of Connecticut, Department of Public Safety, Legal Affairs Department (Dec. 10, 2003); Docket #FIC 2003-020; Hugh Curran v. Mayor, City of Waterbury (Sept. 10, 2003); Docket #FIC 2002-580; Ken Byron and The Hartford Courant v. First Selectman, Town of Westbrook (Sept. 10, 2003); Docket #FIC 2003-038 Chris Dehnel and The Journal Inquirer v.  First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2002-531Chris Dehnel and Journal Inquirer First Selectman, Town of Ellington (Aug. 27, 2003); Docket #FIC 2003-055; Robert Mack v. Director, State of Connecticut, Department of Correction, Labor Relations (July 23, 2003); Docket #FIC 2002-345; Josh Kovner, Chris Keating, and The Hartford Courant v. Chief, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-338; Amy L. Zitka and The Middletown Press v. Chief, Police Department, City of Middletown; and Professional Standards Unit Supervisor, Police Department, City of Middletown (July 23, 2003); Docket #FIC 2002-465; Fred Radford v. Chairman, Police Commission, Town of Trumbull; and Chief, Police Department, Town of Trumbull (July 9, 2003); Docket #FIC 2002-118; Kimberly W. Moy and the Hartford Courant v. Superintendent of Schools, Southington Public Schools (Feb. 26, 2003); Docket #FIC 2002-020; Maurice Timothy Reidy and The Hartford Courant v. Chief, Police Department, Town of Newington and Brendan Fitzgerald (Oct. 23, 2002); Docket #FIC 2001-489 Jonathan Kellogg, Trip Jennings and Waterbury Republican-American Chief, Police Department, Borough of Naugatuck and Rick Smolicz (Sept. 25, 2002); Docket #FIC 2002-173; Carrie J. Campion v. Director, Department of Human Resources, Town of Fairfield (Aug. 28, 2002); Docket #FIC 2001-425 Joseph Mincewicz, Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Aug. 28, 2002); Docket #FIC 2001-421 Jean M. Morningstar and University Health Professionals Local 3837, AFT-CFEPE, AFL-CIO v. Executive Vice President for Health Affairs, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center; and Justin Radolf, M.D., Director, Center for Microbial Pathogenesis, School of Medicine, University of Connecticut Health Center (Aug. 28, 2002); Docket #FIC 2002-093 Sean P. Turpin v. Director, Department of Human Resources, Town of Greenwich and Steve Demetri (July 24, 2002); Docket #FIC 2002-034; MariAn Gail Brown, Michael P. Mayko and Connecticut Post Michael Lupkas, Comptroller, City of Bridgeport; Christopher Duby, Chief of Staff, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport; and Gregory Conte, Deputy Chief of Staff, City of Bridgeport (June 26, 2002); Docket #FIC 2001-364; Karen Guzman and The Hartford Courant v. City of New Britain Docket (June 26, 2002); Docket #FIC 2001-180 James H. Smith and The Record Journal Publishing Company v. Commissioner, State of Connecticut, Department of Public Safety, Division of State Police; and State of Connecticut, Department of Public Safety, Division of State Police (Feb. 13, 2002); Docket #FIC 2001-129; Kimberly W. Moy and The Hartford Courant v. Police Commission, Town of Southington (Feb. 13, 2002); Docket #FIC 2001-251 Fred Radford v. Chief, Police Department, Town of Trumbull (Jan. 23, 2002); Docket #FIC 2000-624; Eric Gustavson v. Board of Education, Brookfield Public Schools (June 13, 2001); Docket #FIC 2000-557; Wendy John v. Richard Blumenthal, Attorney General, State of Connecticut, Office of the Attorney General; Wil Gundling, William McCullough, Phillip Schulz, Margaret Chapple, Assistant Attorneys General, State of Connecticut, Office of the Attorney General; and State of Connecticut, Office of the Attorney General (June 13, 2001); Docket #FIC 2000-268; Michael Costanza and The Day v. Director of Utilities, Utilities Department, City of Groton; and Mayor, City of Groton (April 25, 2001); Docket #FIC 2000-198; William J. Stone v. Personnel Administrator, State of Connecticut, Department of Transportation, Bureau of Finance and Administration; and State of Connecticut, Department of Transportation (April 20, 2001); Docket #FIC 2000-537; James Leonard, Jr. v. Chief, Police Department, City of New Britain (March 28, 2001); Docket #FIC 2000-348; Bradshaw Smith v. Office of the Vice Chancellor for Information Services, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut (February 28, 2001); Docket #FIC 2000-474; Robert H. Boone and Journal Inquirer v. Chief, Police Department, Town of Windsor Locks (Jan. 24, 2001); Docket #FIC 2000-265; Lisa Goldberg and The Hartford Courant v. Superintendent of Schools, Vernon Public Schools (Jan. 24, 2001); Docket #FIC 2000-569; Mary Hyde v. Chief, Police Department, Town of Seymour (Dec. 13, 2000); Docket #FIC 2000-049; Nicholas B. Wynnick v. Board of Directors, Ansonia Public Library, Town of Ansonia (Dec. 13, 2000); Docket #FIC 2000-136; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC 2000-135; Thomas E. Lee v. Board of Education, Trumbull Public Schools; and Superintendent of Schools, Trumbull Public Schools (Nov. 29, 2000); Docket #FIC2000-086; Mitchell D. Poudrier v. Superintendent of Schools, Killingly Public Schools (Sept. 13, 2000); Docket #FIC 2000-173; Robert H. Boone and the Journal Inquirer v. Anthony Milano, District Manager, Metropolitan District Commission; and Metropolitan District Commission (Aug. 23, 2000); Docket #FIC 2000-094; James D. Goodwin v. Communications Specialist, State of Connecticut, Department of Social Services, Public and Government Relations Unit (Aug. 9, 2000); Docket #FIC 2000-022; Thedress Campbell v. City Treasurer, City of Hartford (Aug. 9, 2000); Docket #FIC 2000-137; Robert H. Boone and Journal Inquirer v. Metropolitan District Commission (July 12, 2000); Docket #FIC 1999-560; Leo F. Smith v. Robert H. Skinner, First Selectman, Town of Suffield; and Selectmen’s Office, Town of Suffield (July 12, 2000); Docket #FIC 1999-556; Delores Annicelli v. Director, New Haven Housing Authority, City of New Haven; and New Haven Housing Authority, City of New Haven (July 12, 2000); Docket #FIC 1999-548; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-547; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 1999-525; Leo F. Smith v. John P. Lange, Human Resources Director, Town of Suffield; and Department of Human Resources, Town of Suffield (July 12, 2000); Docket #FIC 2000-118; Elizabeth Ganga and Connecticut Post v. Police Department, Town of Stratford (June 28, 2000); Docket #FIC 2000-095; Ron Robillard and the Chronicle v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 2000-093; Megan J. Bard and The Norwich Bulletin v. Chairman, Board of Education, Eastford Public Schools; and Board of Education, Eastford Public Schools (June 28, 2000); Docket #FIC 1999-575; Bruce Kaz v. Robert Skinner, First Selectman, Town of Suffield; and Ted Flanders, Building Inspector, Town of Suffield (June 28, 2000); Docket #FIC 1999-519; Robert J. Fortier v. Personnel Director, Town of East Hartford; and Mayor, Town of East Hartford (June 14, 2000); Docket #FIC1999-550; James and Susanne Milewski v. Deputy Chief, Police Department, Town of Clinton; and Police Department, Town of Clinton (May 24, 2000); Docket #FIC 2000-005; Fred B. Feins v. President and Chief Executive Officer, Granby Ambulance Association, Inc., Town of Granby (May 10, 2000); Docket #FIC1999-606; Robert L. Corraro and IBEW Local 90 v. Town Attorney, Town of Hamden; and Electrical Contractors, Inc. (May 10, 2000); Docket #FIC 1999-533; Donald J. Lanouette, Jr. v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (April 26, 2000); Docket #FIC 1999-502; Christopher Hoffman and New Haven Register v. Director of Personnel, State of Connecticut, Southern Connecticut State University; and Personnel Office, State of Connecticut, Southern Connecticut State University (April 26, 2000); Docket #FIC1999-440; Anne Hamilton and The Hartford Courant James Martino, Chief, Police Department, Town of Avon; Peter A. Agnesi, Lieutenant, Police Department, Town of Avon; and Police Department, Town of Avon (March 8, 2000); Docket #FIC1999-333; Lynn Fredricksen and New Haven Register v. Chief, Police Department, Town of Madison; and Police Department, Town of Madison (March 8, 2000); Docket #FIC 1999-289; Thomas Moran v. Director, Human Resources, Town of Simsbury; and Department of Human Resources, Town of Simsbury (Feb. 9, 2000); Docket #FIC 1999-328; Victor Zigmund v. Director, State of Connecticut, Department of Mental Health and Addiction Services, Human Resources Operations, Connecticut Valley Hospital, Whiting Forensic Division (Jan. 26, 2000); Docket #FIC 1999-100; Janice D’Arcy and The Hartford Courant v. Chief, Police Department, Town of Cheshire; Police Department, Town of Cheshire; Town Manager, Town of Cheshire; and Town of Cheshire (Jan. 26, 2000); Docket #FIC 1999-355; Wayne Mercier v. Patricia C. Washington, Director of Personnel, City of Hartford; and Department of Personnel, City of Hartford (Nov. 10, 1999); Docket #FIC 1998-391; Jonathan F. Kellogg and The Republican American v. Department of Education, City of Waterbury (Oct. 13, 1999); Docket #FIC 1999-161; Michael W. Cahill v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden (Sept. 22, 1999); Docket #FIC 1998-294; Robert J. Bourne v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1998-293; Joseph J. Cassidy v. Department of Public Utilities, City of Norwich, and City of Norwich (Sept. 22, 1999); Docket #FIC 1999-040; Judith F. Machuga and State of Connecticut, Division of Public Defender Services, Superior Court, G.A. 13 v. Chief, Police Department, Town of East Windsor; and Police Department, Town of East Windsor (Aug. 25, 1999); Docket #FIC 1999-144; Robert H. Boone and Journal Inquirer v. William Gifford, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Windsor Locks Police Commission (July 28, 1999); Docket #FIC 1999-096; Paul Marks and The Hartford Courant v. Chief, Police Department, Town of Windsor Locks; and Police Department, Town of Windsor Locks (July 28, 1999); Docket #FIC 1999-064; Joan Coe v. First Selectman, Town of Simsbury; Director, Human Resources Department, Town of Simsbury; and Town of Simsbury (July 28, 1999); Docket #FIC 1999-150; Andrew Nargi v. Office of Corporation Counsel, City of Torrington; and City of Torrington (July 14, 1999); Docket #FIC 1999-135; Warren Woodberry, Jr. and The Hartford Courant v. Acting Town Manager, Town of Rocky Hill and Town of Rocky Hill (July 14, 1999); Docket #FIC 1999-015; Richard Manuel Rivera v. Superintendent of Schools, Torrington Public Schools; and Board of Education, Torrington Public Schools (June 9, 1999); Docket #FIC 1998-372; William C. Kaempffer and New Haven Register v. Police Department, City of New Haven; City of New Haven; and James Sorrentino (June 9, 1999); Docket #FIC 1997-361; Dominick L. Santarsiero v. Director, Human Resources, City of Stamford (June 10, 1998); Docket #FIC 1999-019; David K. Jaffe v. State of Connecticut, Connecticut Lottery Corporation, Human Resources; State of Connecticut, Connecticut Lottery Corporation, Security Division; and State of Connecticut, Connecticut Lottery Corporation (April 28, 1999); Docket #FIC1998-325; Virginia Groark and The Day v. Freedom of Information Officer, State of Connecticut, Department of Public Health, Office of Special Services, Communications Division; and Agency Personnel Administrator, State of Connecticut, Department of Public Health, Human Resources Division (April 28, 1999); Docket #FIC 1998-208; Thedress Campbell v. City Treasurer, City of Hartford; and City of Hartford (April 14, 1999); Docket #FIC 1998-265; Benjamin M. Wenograd and Service Employees International Union Local 760 v. John Roughan, Executive Director, East Hartford Housing Authority; and East Hartford Housing Authority, Town of East Hartford (March 24, 1999); Docket #FIC 1997-363; Diana R. Raczkowski v. Mayor, Town of Naugatuck (March 11, 1998); Docket #FIC 1997-307; Krystin Bratina v. Chief, Hartford Fire Department, City of Hartford (March 11, 1998); Docket #FIC 1998-288; Christian Miller and the New Haven Register v. Superintendent, Branford Public Schools; and Board of Education, Branford Public Schools (Feb. 24, 1999); Docket #FIC 1998-255; Joan O’Rourke v. Chief, Police Department, City of Torrington; and Police Department, City of Torrington (Jan. 27, 1999); Docket #FIC 1998-251; John Ward v. Beverly L. Durante, Personnel Administrator, Housatonic Area Regional Transit; and Housatonic Area Regional Transit (Jan. 27, 1999); Docket #FIC 1998-163; Lawrence A. Butts v. Director, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-162; Lawrence A. Butts Chairperson, State of Connecticut, Department of Environmental Protection, Human Resources Division; and State of Connecticut, Department of Environmental Protection, Human Resources Division (Dec. 9, 1998); Docket #FIC 1998-232; Scott Clark, Amy Kertesz, Michael Gates and the Ridgefield Police Union v. First Selectman, Town of Ridgefield; and Town of Ridgefield (Nov. 18, 1998); Docket #FIC 1998-193; Daniel P. Jones and The Hartford Courant v. Commissioner, State of Connecticut, Department of Environmental Protection; and State of Connecticut, Department of Environmental Protection (Nov. 18, 1998); Docket #FIC 1998-121; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown and Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998-120; Ernie Cantwell and International Association of Firefighters, Local No. 1073 v. Director, Personnel Department, City of Middletown (Oct. 14, 1998); Docket #FIC 1998‑094; Janice D'Arcy and The Hartford Courant v. Chief, Meriden Police Department, City of Meriden and Meriden Police Department (Oct. 14, 1998); Docket #FIC 1997-422; Joseph A. Johnson, Jr. and Greenwich Time v. Chief, Greenwich Police Department, Town of Greenwich; and Greenwich Police Department, Town of Greenwich (Sept. 9, 1998); Docket #FIC 1998-023; Deborah Maynard v. Superintendent, Voluntown School District; and Principal, Voluntown Elementary School, Voluntown School District (Aug. 12, 1998); Docket #FIC 1997-298; Allan Drury and The New Haven Register v. Chief, East Haven Police Department, Town of East Haven; and Town of East Haven (June 10, 1998); Jonathan Lucas and Greenwich Times v. Director, Department of Human Resources, Town of Greenwich; and Town of Greenwich (May 27, 1998); John C. Rettman v. Meriden Police Department, Internal Affairs Division; and Paul Rowen (May 13, 1998); Docket #FIC 1997-318; Dennis Carnot v. Chief, Meriden Police Department, City of Meriden; Internal Affairs Division, Meriden Police Department, City of Meriden; Meriden Police Department, City of Meriden; and Paul Rowen (May 13, 1998); Docket #FIC 1997-175; Matthew Brown, Ken Byron and The Hartford Courant v. Superintendent of Schools, Plymouth Public Schools; and Board of Education, Town of Plymouth (February 18, 1998); Docket #FIC 1997-123; John Christoffersen and The Advocate v. Superintendent of Schools, Stamford Public Schools and Director of Personnel, Stamford Public Schools (Feb. 11, 1998); Docket #FIC 1997-088; John B. Harkins v. Acting Town Manager, Town of Tolland (Jan. 28, 1998); Docket #FIC 1997-085; Joe Johnson and Greenwich Time v. Chief of Police, Greenwich Police Department (Jan. 28, 1998); Docket #FIC 1997-142; Laura Amon v. Program Manager, Affirmative Action Division, State of Connecticut, Department of Transportation (Dec. 3, 1997); Docket #FIC 1996-572; Ken Byron and The Hartford Courant v. Chief of Police, Town of Wethersfield (Nov. 12, 1997); Docket #FIC 1997-238; Kimberley A. Thomsen and the Republican-American v. Acting Superintendent, Waterbury Police Department (Oct. 29, 1997); Docket #FIC 1997-089; Steven Edelman v. Commissioner, State of Connecticut, Department of Mental Retardation; and State of Connecticut, Department of Mental Retardation (Oct. 22, 1997); Docket #FIC 1996-551; Judith A. Amato v. Executive Director, New Britain Housing Authority; and New Britain Housing Authority (Aug. 27, 1997); Docket # FIC 1996-539; Ann Marie Derwin v. Legal Advisor, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety (Aug. 27, 1997); Docket #FIC 1996-592; Francine Karp v. Mayor, City of Bristol; Director of Personnel, City of Bristol; and Dennis Daigneault (July 23, 1997); Docket #FIC 1996-243; Joanne C. Tashjian v. Personnel Officer, State of Connecticut, Workers’ Compensation Commission; and State of Connecticut, Workers’ Compensation Commission (June 4, 1997); Docket #FIC 1996-322;Carolyn Moreau and The Hartford Courant v. Chief of Police, Southington Police Department; and Susan Williams (May 28, 1997); Docket #FIC 1996-465; John Gauger, Jr., Joseph Cadrain and Richard Westervelt v. Kenneth H. Kirschner, Commissioner, State of Connecticut, Department of Public Safety; Dawn Carnese, Legal Advisor, State of Connecticut, Department of Public Safety; and Lt. David Werner, Commanding Officer, Troop "B", State of Connecticut, Department of Public Safety, Division of State Police (April 9, 1997); Docket #FIC 1996-315; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-521; Carol Butterworth v. Town Council, Town of Tolland (March 26, 1997); Docket #FIC 1996-421; John B. Harkins v. Chairman, Tolland Town Council (March 26, 1997); Docket #FIC 1996-314; David W. Cummings v. Christopher Burnham, Treasurer, State of Connecticut (April 9, 1997); Docket #FIC 1996-119; David W. Cummings v. Jesse M. Frankl, Chairman, State of Connecticut, Workers’ Compensation Commission (March 26, 1997); Docket #FIC 1996-215; Alice M. Gray v. Chief of Police, Manchester Police Department, and Assistant Town Attorney, Town of Manchester (Feb. 26, 1997); Docket #FIC 1996-159; Carolyn Moreau and The Hartford Courant v. Police Chief, Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-124; Donald H. Schiller, Michael Kelley and The Record-Journal Publishing Company v. Police Chief, Town of Southington Police Department, and Town of Southington Police Department (Jan. 22, 1997); Docket #FIC 1996-134; Betty Halibozek v. Superintendent of Schools, Middletown Public Schools; and Supervisor of Maintenance and Transportation, Board of Education, City of Middletown (Dec. 11, 1996); Docket #FIC1996-006; Joseph Cadrain and Richard Westervelt v. Gerald Gore, Legal Affairs Unit, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety, Division of State Police (Dec. 11, 1996); Docket #FIC 1996-153; Tracey Thomas and The Hartford Courant v. Legal Affairs Unit, State of Connecticut, Department of Public Safety (Nov. 20, 1996); Docket #FIC1995-419; Robie Irizarry v. Warden, Willard Correctional Institution, State of Connecticut, Department of Correction (Oct. 23, 1996); Docket #FIC 1995-368; Thomas Lally v. Executive Director, State of Connecticut Board of Education and Services for the Blind, and Special Projects Coordinator, State of Connecticut, Board of Education and Services for the Blind (Oct. 9, 1996); Docket #FIC 1995-403; Jesse C. Leavenworth and The Hartford Courant v. Superintendent of Schools, Regional School District #7 (Sept. 25, 1996); Docket #FIC 1995-361; Christopher Hoffman and the New Haven Register v. James J. McGrath, Chief of Police, Ansonia Police Department and Eugene K. Baron, Brian Phipps, and Howard Tinney as members of the Ansonia Board of Police Commissioners (Sept. 25, 1996); Docket #FIC1995-358; Lyn Bixby and The Hartford Courant v. State of Connecticut, Department of Administrative Services (Sept. 25, 1996); Docket #FIC 1996-056; Francine Cimino v. Chief of Police, Glastonbury Police Department; Town Manager, Town of Glastonbury; and Town of Glastonbury (Sept. 25, 1996); Docket #FIC 1995-343; John J. Woodcock, III v. Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 1995-324; John J. Woodcock, III and Kathryn A. Hale v. Dana Whitman, Jr., Acting Town Manager, Town of South Windsor (July 24, 1996); Docket #FIC 95-251; Lyn Bixby & The Hartford Courant v. Commissioner, State of Connecticut, Department of Correction (July 10, 1996); Docket #FIC 1995-252; Valerie Finholm and The Hartford Courant v. Commissioner, State of Connecticut, Department of Children and Families (May 22, 1996); Docket #FIC 1995-193; Terence P. Sexton v. Chief of Police, Hartford Police Department (May 8, 1996); Docket #FIC 1995-125; Chris Powell and Journal Inquirer v. Commissioner, State of Connecticut, Department of Social Services (March 13, 1996); Docket #FIC 1995-081; Bruce Bellm, Kendres Lally, Philip Cater, Peter Hughes, Carol Northrop, Brad Pellissier, Todd Higgins and Bruce Garrison v. State of Connecticut, Office of Protection and Advocacy for Persons with Disabilities, Sharon Story and Marlene Fein (March 13, 1996); Docket #FIC 1995-074; Jeffrey C. Cole and WFSB/TV 3 v. James Strillacci, Chief of Police, West Hartford Police Department (Jan. 24, 1996); Docket #FIC 1995-026; Curtis R. Wood v. Director of Affirmative Action, State of Connecticut, Department of Correction (Jan. 24, 1996); Docket #FIC 1995-132; Michael A. Ingrassia v. Warden, Walker Special Management Unit, State of Connecticut Department of Correction (Dec. 27, 1995); Docket #FIC 1995-048; Jane Holfelder v. Canton Police Department (June 14, 1995); Docket #FIC 1994-351; Edward A. Peruta v. O. Paul Shew, Rocky Hill Town Manager and Director of Public Safety; Donald Unwin, Mayor of Rocky Hill, William Pacelia, Deputy Mayor of Rocky Hill; and Curt Roggi, Rocky Hill Town Attorney (May 28, 1995); Docket #FIC 1994-160; John Springer and The Bristol Press v. Chief of Police, Bristol Police Department (April 5, 1995); Docket #FIC 1994-077; Kathryn Kranhold and The Hartford Courant v. Director, New Haven Health Department (Feb. 8, 1995); Docket #FIC 1994-099; Frank Faraci, Jr. v. Middletown Police Department, Mayor of Middletown, and Middletown City Attorney (Feb. 2, 1995); Docket #FIC 1994-011; Robert Grabar, Edward Frede and The News-Times v. Superintendent of Schools, Brookfield Public Schools and Brookfield Board of Education (Aug. 24, 1994); Docket #FIC 1993-279; Jay Lewin v. New Milford Director of Finance (March 23, 1994).

 

 

 

2. Affidavit of Eric Turner, January 9, 2002.

 

AFFIDAVIT OF ERIC V. TURNER

 

Eric V. Turner, having been duly sworn, does hereby depose as follows:

 

1.  I am over the age of eighteen (18) years and understand the obligation of an affirmation.

 

2.  I am a member of the Connecticut Bar and am currently employed as Director of Public Education for the Connecticut Freedom of Information Commission, having first been employed by said commission in 1996.

 

3.  I am providing this affidavit in light of the Supreme Court decision in Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764 (2001), in which the court apparently invites a reconsideration of Perkins v. Freedom of Information Commission, 228 Conn. 158 (1993).  See, Director, supra at 782, fn 13, 785 (Zarella, J. concurring).

 

4.  As part of my responsibilities as Director of Public Education for said commission, I have developed, organized and scheduled speaking engagements, seminars and programs explaining the duties and rights established under the Connecticut Freedom of Information Act.

 

5.  Since I assumed my current position in 1996, there have been approximately 290 such speaking engagements, seminars and programs in Connecticut and I have personally lectured in approximately 80 such speaking engagements, seminars and programs.

 

6.  As part of the presentation I have prepared for such speaking engagements, seminars and programs, the subject of the Connecticut General Statues Section 1-210(b)(2) exemption for personnel, medical and similar files the disclosure of which would constitute an invasion of personal privacy is stressed because of the great interest in that exemption and the confusion generated by a series of inconsistent and contradictory court decisions prior to Perkins, supra.  See, e.g., Chairman v. Freedom of Information Commission, 217 Conn. 193 (1991) (establishing “reasonable expectation of privacy” test; query whether subjectively or objectively applied) and Board of Education v. Freedom of Information Commission, 210 Conn. 590 (1989) (confirming a “balancing” test), which was overruled by the Chairman case.

 

7.  Since the Supreme Court ruling in Perkins, supra, all Freedom of Information Commission staff members who conduct such speaking engagements, seminars and programs discuss in detail the rulings in that case and its progeny.

 

8.  As part of my responsibilities as Director of Public Education, I also answer telephone and other inquiries from public officials and the public.  Since my employment with said commission, I have answered thousands of such inquiries, including hundreds of inquiries concerning the Connecticut General Statutes Section 1-210(b)(2) exemption.  In responding to such inquiries I discuss in detail the Perkins case and its progeny.

 

9.  Based on the foregoing experiences, it is my opinion that the Perkins decision, and its progeny, have had a beneficial effect on public officials and the public itself because they can rely on a now long-standing and clear test with respect to the Connecticut General Statutes Section 1-210(b)(2) exemption, which helps them determine whether that exemption is applicable to the practical problems they encounter with respect to personnel, medical and similar information.  Indeed, the many court and Freedom of Information Commission decisions applying the Perkins test have given public officials and the public a now consistent body of law concerning that statutory exemption.

 

 

Eric V. Turner

 

 

 

COUNTY OF HARTFORD

                                                            ss:  Hartford

STATE OF CONNECTICUT

 

Subscribed and attested to before me this 9th day of January, 2002.

 

 

Mitchell W. Pearlman

Commissioner of the Superior Court