FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on March 27, 2009, July 30, 2009, and October 6, 2009, at which times the complainant and respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2009-201; Priscilla Dickman v. Director, State of Connecticut, Office of State Ethics; and State of Connecticut, Office of State Ethics.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

1.   The respondents are public agencies within the meaning of §1-200(1), G.S.

           

2.      It is found that between June 2008 and October 2008, the complainant made several requests to the respondents for all emails of the Office of State Ethics staff including emails to and from Michael Morrissey, Patrick Lamb, Thomas Jones and Henry Herschkorn for various time periods in 2005 through 2008.

 

3.      It is found that the respondents provided the complainant with a multiple page print-out listing approximately 740 emails, responsive to the requests described in paragraph 2, above.

 

4.      It is found that the complainant identified for the respondents the emails that she wanted copied by marking such emails with check marks. 

 

5.      It is found that the respondents provided the complainant with over 800 pages of records responsive to the requests described in paragraphs 2 and 4, above.  It is also found that many of the records provided contained one or more redactions.   

 

6.      It is found that, by letter dated November 30, 2008, the complainant made a request to the respondents for “the material that to this point has been redacted from emails provided.” 

 

7.      By letter dated December 24, 2008, and filed on December 29, 2008, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide her with copies of the records, described in paragraph 6, above.

 

8.      At the March 27^th hearing in this matter, the respondents contended that there is a great deal of confusion as to what records are at issue and that the respondents understood the complainant’s November 30^th letter to be a request for unredacted copies of the emails provided to the complainant, as described in paragraph 5, above.  The complainant however explained that her November 30^th request is for unredacted copies of the emails provided, as described in paragraph 5, above, and for copies of emails that she identified for the respondents, as described in paragraph 4, above, but had yet to receive.

 

9.      The complainant submitted into evidence 58-pages of emails with redactions provided to her by the respondents, for which she seeks unredacted copies. 

 

10.  The complainant also submitted into evidence a multiple page print-out previously provided to her, as described in paragraph 3, above, and thereafter, referring to this print-out, identified approximately 55 emails for which she had yet to receive copies.    

 

11.  At the close of the March 27^th hearing, in order to avoid any further confusion, the hearing officer requested that the complainant provide the respondents and the Commission with a list specifying which emails listed on the multiple page print-out are at issue in this matter. 

 

12.  It is found that, by letter dated March 27, 2009 (“the March 27^th letter), the complainant provided the respondents and the Commission with a list of 91 emails that she had yet to receive in response to the requests described in paragraphs 2 and 6, above.  It is found, however, that only the first 81 emails listed on the March 27^th letter appear on the multiple page print-out submitted into evidence as described in paragraph 10, above.  Accordingly, the Commission will only further consider the first 81 emails listed on the March 27^th letter.

 

13.  It is found that the records at issue in this matter are as follows:

 

a.       the 58-pages of redacted emails, as described in paragraph 9, above; and

 

b.      the first 81 emails listed on the March 27^th letter, as described in paragraph 12, above.  

 

At the October 6^th hearing in this matter, the hearing officer informed the parties, without objection, that said records will be the only records addressed by the Commission.

 

14.  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, 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.

 

15.  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 (1) inspect such records promptly during regular office or business hours . . . (3) receive a copy of such records in accordance with section 1-212.  [Emphasis added.]

 

16.  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.”

 

17.  It is found that the records requested by the complainant are public records and must be disclosed in accordance with §§1-200(5), 1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.

 

18.  At the March 27^th and July 30^th hearings in this matter, the respondents claimed that the records, described in paragraph 13, above, were exempt from disclosure pursuant to §§1-82a and 1-93a, G.S.

 

19.  At the conclusion of the July 30^th hearing, the hearing officer ordered the respondents to submit the records at issue to the Commission for in camera review.

 

20.  On August 13, 2009, prior to the respondents submitting the documents to the Commission for in camera review, the respondents found “probable cause” to believe that the complainant violated the State Code of Ethics.  The respondents claim that prior to this finding, they were precluded by the Code of Ethics to disclose the fact that the complainant was the subject of a pending ethics investigation. 

 

21.  On September 2, 2009, the respondents submitted unredacted copies of the records described in paragraph 13, above, to the Commission for in camera review.  The in camera records, which were not paginated, have been marked by the Commission and are hereinafter identified as IC-2008-796-1 through IC-2008-796-568.

 

22.  At the October 6^th hearing in this matter, the respondents stated that an additional 136 pages of documents were provided to the complainant earlier that day, and that, following the hearing, the respondents would re-evaluate whether other outstanding documents could be provided in unredacted form. 

 

23.  By letter dated, October 14, 2009, the respondents informed the FOIC that an additional thirty-one pages of documents were provided to the complainant in unredacted form for which they waive any claim of exemption. 

 

24.  Accordingly, after the provision of many records to the complainant, the records finally at issue in this matter are:  IC-2008-796-3 (volume I, item 3), IC-2008-796-28 through IC-2008-796-30 (volume I, item 14), IC-2008-796-35 through IC-2008-796-43 (volume I, item 17), IC-2008-796-45 through IC-2008-796-53 (volume I, item 19), IC-2008-796-217 (volume I, item 23), IC-2008-796-218 (volume I, item 24), IC-2008-796-219 (volume I, item 25), IC-2008-796-221 (volume I, item 27), IC-2008-796-223 through IC-2008-796-231 (volume I, item 31), IC-2008-796-234 through IC-2008-796-241 (volume I, item 33), IC-2008-796-245 through IC-2008-796-253 (volume I, item 35), IC-2008-796-254 (volume I, item 36), IC-2008-796-260 through IC-2008-796-268 (volume I, item 39), IC-2008-796-270 through IC-2008-796-271 (volume I, item 41), IC-2008-796-274 (volume I, items 43, 68 and 69), IC-2008-796-275 (volume I, item 44), IC-2008-796-281 through IC-2008-796-282 (volume I, item 50), IC-2008-796-286 through IC-2008-796-291 (volume I, items 52 and 53), IC-2008-796-313 through IC-2008-796-315 (volume I, item 57), IC-2008-796-318 (volume I, item 61), IC-2008-796-358 (volume I, item 70), IC-2008-796-359 through IC-2008-796-362 (volume I, item 71), IC-2008-796-377 (volume I, item 74), IC-2008-796-378 (volume I, item 75, page 1), IC-2008-796-387 through IC-2008-796-388 (volume I, item 77), IC-2008-796-389 (volume I, item 78), IC-2008-796-390 through IC-2008-796-391 (volume I, item 79), IC-2008-796-392 (volume I, item 80), IC-2008-796-394 (volume II, item 1), IC-2008-796-398 (volume II, item 5), IC-2008-796-399 through IC-2008-796-400 (volume II, item 6), IC-2008-796-401 (volume II, item 7), IC-2008-796-428 (volume II, item 13), IC-2008-796-511 through IC-2008-796-512 (volume II, item 22), IC-2008-796-513 through IC-2008-796-514 (volume II, item 23), IC-2008-796-532 through IC-2008-796-533 (volume II, item 28), IC-2008-796-534 through IC-2008-796-539 (volume II, item 29), IC-2008-796-540 through IC-2008-796-541 (volume II, item 30), IC-2008-796-542 through IC-2008-796-543 (volume II, item 31), IC-2008-796-544 through IC-2008-796-554 (volume II, item 32), IC-2008-796-555 (volume II, item 33), IC-2008-796-556 through IC-2008-796-557 (volume II, item 34), IC-2008-796-558 (volume II, item 35), and IC-2008-796-567 through IC-2008-796-568 (volume II, item 37).  

 

25.  With respect to the in camera documents remaining at issue in this matter, as described in paragraph 24, above, the respondents claim that such documents are exempt from disclosure pursuant to §§1-82a, 1-93a, 1-210(b)(1), 1-210(b)(4), 1-210(b)(10) and 52-146r, G.S. 

 

26.  The respondents claim that §1-82a, G.S., exempts from mandatory disclosure the following records: IC-2008-796-219, IC-2008-796-221, IC-2008-796-254, IC-2008-796-270 through IC-2008-796-271, IC-2008-796-274, IC-2008-796-275, IC-2008-796-281 through IC-2008-796-282, IC-2008-796-318, IC-2008-796-358, IC-2008-796-359 through IC-2008-796-362, IC-2008-796-377, IC-2008-796-387 through IC-2008-796-388, IC-2008-796-389, IC-2008-796-390 through IC-2008-796-391, IC-2008-796-392, IC-2008-796-394, IC-2008-796-398, IC-2008-796-399 through IC-2008-796-400, IC-2008-796-401, IC-2008-796-513 through IC-2008-796-514, IC-2008-796-532 through IC-2008-796-533, IC-2008-796-534 through IC-2008-796-539, IC-2008-796-540 through IC-2008-796-541, IC-2008-796-542 through IC-2008-796-543, IC-2008-796-544 through IC-2008-796-554, IC-2008-796-555 and  IC-2008-796-567 through IC-2008-796-568. 

 

27.  Section 1-82a, G.S., provides in relevant part:

 

(a) Unless a judge trial referee makes a finding of probable cause, a complaint alleging a violation of this part…shall be confidential except upon the request of the respondent.  An evaluation of a possible violation of this part…by the Office of State Ethics prior to the filing of a complaint shall be confidential except upon the request of the subject of the evaluation.  If the evaluation is confidential, any information supplied to or received from the Office of State Ethics shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by the ethics enforcement officer of staff of the Office of State Ethics….

 

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent.  If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the Office of State Ethics shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or board or staff member of the Office of State Ethics….

 

(d) If a judge trial referee makes a finding of no probable cause, the complaint and the record of the Office of State Ethics’ 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 board or staff member of the Office of State Ethics 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….

 

28.  The in camera documents described in paragraph 26, above, concern ethics investigations of public employees which remain confidential and do not pertain to the ethics enforcement matter against the complainant. Upon careful review of such documents, it is found that they are exempt from disclosure pursuant to §1-82a, G.S.

 

29.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with copies of the in camera documents described in paragraph 26, above.[1]

 

30.  The respondents claim that §1-93a, G.S., exempts from mandatory disclosure the following records:  IC-2008-796-286 through IC-2008-796-291 and IC-2008-796-313 through IC-2008-796-315.

 

31.  Section 1-93a, G.S., provides in relevant part:

 

(a) Unless a judge trial referee makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent.  An Office of State Ethics evaluation of a possible violation of this part undertaken prior to a complaint being filed shall be confidential except upon the request of the subject of the evaluation.  If the evaluation is confidential, any information supplied to or received from the Office of State Ethics shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by a board or staff member of the Office of State Ethics….

 

32.  The in camera documents described in paragraph 30, above, concern investigations of alleged violations of the code of ethics for lobbyists and do not pertain to the ethics enforcement matter against the complainant. Upon careful review of such documents, it is found that they are exempt from disclosure pursuant to §1-93a, G.S.

 

33.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with copies of the in camera documents described in paragraph 30, above.[2]

 

34.  The respondents further claim that §1-210(b)(1), G.S., exempts from mandatory disclosure the following records: IC-2008-796-35 through IC-2008-796-43, IC-2008-796-45 through IC-2008-796-53, IC-2008-796-223 through IC-2008-796-231, IC-2008-796-234 through IC-2008-796-241, IC-2008-796-245 through IC-2008-796-253, IC-2008-796-260 through IC-2008-796-268, IC-2008-796-511 through IC-2008-796-512, and IC-2008-796-556 through IC-2008-796-557.

 

35.  Section 1-210(b)(1), G.S., provides that “[n]othing in the Freedom of Information Act shall be construed to require disclosure 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.”

 

36.  In Shew v. Freedom of Information Commission, the Supreme Court ruled that “the concept of preliminary, as opposed to final, 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), citing Wilson v. Freedom of Information Commission, 181 Conn. 324, 332 (1989).

 

37.  The in camera documents described in paragraph 34, above, are preliminary drafts of complaints and affidavits prepared as part of ethics investigations concerning the complainant and other individuals.  It is found that the documents contain uncharged and uncorroborated conduct that was not used in the final complaints and affidavits filed in the respective enforcement matters.  It is further found that the respondents determined that the public interest in withholding such documents outweighs the public interest in disclosure.

 

38.  Section 1-210(e)(1), G.S., 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.

 

39.  The in camera documents described in paragraph 34, above, are not interagency 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, within the meaning of §1-210(e)(1), G.S. 

 

40.  Upon careful review of the in camera documents described in paragraph 34, above, it is found that they are permissibly exempt from disclosure pursuant to §§1-210(b)(1) and 1-210(e)(1), G.S.

 

41.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with copies of the in camera documents described in paragraph 34, above.[3]

 

42.  The respondents further claim that §1-210(b)(4), G.S., exempts from mandatory disclosure the following records:  IC-2008-796-3, IC-2008-796-28 through IC-2008-796-30, IC-2008-796-217, IC-2008-796-218, IC-2008-796-378, IC-2008-796-428 and IC-2008-796-558.

 

43.  Section 1-210(b)(4), G.S., provides in relevant part: 

 

[n]othing in the Freedom of Information Act shall be construed to require disclosure 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 fully adjudicated or otherwise settled….

 

44.  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.”

 

45.  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.

 

46.  The in camera documents described in paragraph 42, above, pertain to strategy and negotiations with respect to pending claims against individuals, other than the complainant, for ethics violations as well as legal strategies yet to be utilized by the respondents in the pending Office of State Ethics hearings against the complainant In the Matter of Priscilla Dickman, case number 2007-24, a separate pending claim.  It is found that the respondent Office of State Ethics is a party to such pending claims.  See e.g., §1-82, G.S. (judge trial referee presides at probable cause hearings and subsequent proceedings regarding alleged ethics violations).

 

47.  Upon careful review of the in camera documents described in paragraph 42, above, it is found that they are permissibly exempt from disclosure pursuant to §1-210(b)(4), G.S.

 

48.  It is concluded, therefore, that the respondents did not violate the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by not providing the complainant with copies of the in camera documents described in paragraph 42, above.[4]

 

 

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

                                                                       

1.       The complaint is hereby dismissed.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 18, 2009.

 

 

____________________________

S. Wilson

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:

 

Priscilla Dickman

2534 Boston Turnpike

Coventry, CT 06238

 

Director, State of Connecticut,

Office of State Ethics; and

State of Connecticut,

Office of State Ethics

C/o Barbara Housen, Esq.

Office of State Ethics

18-20 Trinity Street

Hartford, CT 06106

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-796FD/sw/11/23/2009