TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s regular meeting of May 26, 2010
A regular meeting of the Freedom of Information Commission was held on May 26, 2010, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:10 p.m. with the following Commissioners present:
Commissioner Andrew J. O’Keefe, presiding
Commissioner Sherman D. London
Commissioner Norma E. Riess
Commissioner Owen P. Eagan
Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, Kathleen K. Ross, Lisa F. Seigel, Valicia D. Harmon, Paula S. Pearlman, Cindy Cannata and Thomas A. Hennick.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of May 12, 2010.
Docket #FIC 2009-365 Robin Elliott v. Mark Buchanan, Director of Medical Services, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
Robin Elliott participated via speakerphone. Attorney Nicole Anker appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2009-389 Chad St. Louis v. Chief Medical Examiner, State of Connecticut, Office of the Chief Medical Examiner; and State of Connecticut, Office of the Chief Medical Examiner
Chad St. Louis participated via speakerphone. Assistant Attorney General Patrick Kwanashie appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, May 26, 2010
Page 2
Docket #FIC 2008-416 Thomas J. McDonnell v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety
Assistant Attorney General Stephen Sarnoski appeared on behalf of the respondents. The Commissioners unanimously voted to table the matter.
Docket #FIC 2009-359 Waterbury Teachers’ Association v. Superintendent of Schools, Waterbury Public Schools; and Board of Education, Waterbury Public Schools
The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2009-366 Luis Pacheco v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
Attorney Matthew DiVito appeared on behalf of the complainant. Attorney Nicole Anker appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2009-402 Susan Wallace v. Lynn Baldoni, Chief, Police Department, City of Middletown; and Police Department, City of Middletown
Susan Wallace appeared on her own behalf. Attorney Timothy Lynch appeared on behalf of the respondents. The Commissioners unanimously voted to amend, three times, the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Docket #FIC 2009-406 William Stults v. Board of Selectmen, Town of Beacon Falls
William Stults appeared on his own behalf. Attorney Francis D’Urso appeared on behalf of the respondent. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Minutes, Regular Meeting, May 26, 2010
Page 3
Docket #FIC 2009-413 The Connecticut Post v. James R. Miron, Mayor, Town of Stratford; John J. Buturla, Chief, Police Department, Town of Stratford; Police Department, Town of Stratford; and Town of Stratford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-441 Elisabeth Seieroe Maurer v. Office of the Corporation Counsel, City of Danbury; and City of Danbury
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-547 Jeffrey T. Kriete v. Joan Angelini, Town Clerk, Town of Westbrook
Jeffrey Kriete appeared on his own behalf. Attorney John Bennet appeared on behalf of the respondent. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2009-566 Dennis Guaglianone v. Chairman, Government Access TV Committee, City of Milford; and Government Access TV Committee, City of Milford
Dennis Guaglianone appeared on his own behalf. The Commissioners unanimously voted to reopen the matter. The proceedings were recorded digitally.
Docket #FIC 2009-691 Gerald Scully v. Planning Department, City of Hartford; and City of Hartford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, May 26, 2010
Page 4
The Commissioners unanimously voted to deny a motion to reconsider the final decision dated April 30, 2010 filed by Steven Anderson in Steven Anderson v. Superintendent of Schools, Derby Public Schools; and Board of Education, Derby Public Schools, Docket #FIC 2009-166.
Colleen M. Murphy informed the commissioners that new commissioner Amy J. Livolsi was planning to join the commission at its next meeting on June 9.
The meeting was adjourned at 4:35 p.m.
______________________
Thomas A. Hennick
*SEE ATTACHED FOR AMENDMENT S
MINREG meeting 05262010/tah/05272010
Minutes, Regular Meeting, May 26, 2010
Page 5
AMENDMENTS
Docket #FIC 2009-402 Susan Wallace v. Lynn Baldoni, Chief, Police Department, City of Middletown; and Police Department, City of Middletown
The Hearing Officer’s Report is amended as follows:
2. It is found that by letter, dated June 23, 2009, the complainant made a request to the respondents for copies of all three statements she had provided to the respondents and certain other records [relating to domestic disputes in her family]. By letter dated July 14, 2009, the complainant refined and supplemented her request to the respondents for copies of:
a) Every family violence offense report made pursuant to §46b-38d(a), G.S., in any incident involving either Gregory M. Warzecha or Tyler S. Warzecha;
b) Records regarding Gregory M. Warzecha;
c) Records regarding Tyler S. Warzecha;
d) Records regarding the complainant; and
e) All records created [to] pursuant to §4-193(c), G.S., concerning who has obtained access to, or received disclosure of, personal data and the reason for each such access.
9. At the hearing, the respondents agreed to submit the requested records for an in camera inspection. The respondents submitted [seventeen] SIXTEEN sets of records, which all together comprised 315 pages of records. The [seventeen] SIXTEEN sets of records are identified by their respective case numbers assigned by the respondent Department. On the index to the in camera records, the respondents claimed the exemptions at §§1-210(b)(3)(C), 1-210(b)(3)(E), 1-210(b)(3)(G), and 54-142a, G.S., for various of the respective records.
[10. It is found that the complainant and her husband during most of the time relevant hereto were in divorce proceedings. As is common in domestic disputes, there were allegations that were not witnessed by third parties, and constituted what is informally referred to as “she said, he said”. Other allegations involved juveniles living with the complainant and her then husband. The various allegations required the respondent Police Department to perform extensive investigation and to create many reports. In sum, this contested case concerns whether these reports are subject to mandatory disclosure. ]
Minutes, Regular Meeting, May 26, 2010
Page 6
[11.] 10. It is further found that the requested records are the records of a law enforcement agency, that they are not otherwise available to the public, and that they were compiled in connection with the investigation of crime.
[12.] 11. It is found that the records described at paragraph [15] 14.e), [15.] 14.k), [15.] 14.n), and [15.] 14.o) involved arrests, and that all charges were dismissed or nolled, except for the charges described in paragraph [15.] 14.k), which have been conditionally dismissed and were not subject to a final disposition as of December 2, 2009 (the date the in camera records were certified).
[13.] 12. The American Heritage Dictionary (2nd College Ed. 1976) defines “corroborate” to mean: “To support or confirm by new evidence; attest the truth or accuracy of.”
[14.] 13. Black’s Law Dictionary (5th Ed. 1979) defines “corroborate” to mean:
To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence. The testimony of a witness is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.
See Michael Thibault v. Chief, Police Department, City of New London, Docket #FIC 2006-344; Bona v. Freedom of Information Commission; Rowland v Freedom of Information Commission, 44 Conn. App. 622 (1997); Bona v. Freedom of Information Commission; Rowland v Freedom of Information Commission, CV94-0123208S, CV94-0123411S (1995).
[15.] 14. Based upon the in camera inspection, it is concluded that:
a) Record 01-29140, described on the in camera index as “harassing phone calls”, including three pages with reports dated October 16, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.;
b) Record 02-13331, described on the in camera index as “suspicious letter”, including four pages with reports dated May 29, 2002, is exempt from mandatory disclosure, with allegations in an email that are uncorroborated pursuant to §1-210(b)(3)(G), G.S.;
c) Record 03-26451, described on the in camera index as “possible child abuse”, including two pages with reports dated October 9, 2003, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.;
Minutes, Regular Meeting, May 26, 2010
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d) Record 04-30220, described on the in camera index as “suspected abuse”, including eleven pages with reports dated December 17, 2004, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.;
e) Record 08-1881, described on the in camera index as “domestic violence, risk of injury, assault in the 3rd degree, disorderly conduct”, including thirty five pages with reports dated January 24, 2008, is exempt from mandatory disclosure, because it is an erased record pursuant to §54-142a, G.S.;
f) Record 08-15038, described on the in camera index as “missing person”, including twenty pages with reports dated June 17, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to §1-210(b)(3)(E), G.S.;
g) Record 08-15093, described on the in camera index as “police assist”, including a one page report dated June 17, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to §1-210(b)(3)(E), G.S.;
h) Record 08-28753, described on the in camera index as “missing person”, including eleven pages with reports dated November 24, 2008, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to §1-210(b)(3)(E), G.S.;
i) Record 08-28828, described on the in camera index as “larceny, theft from building”, including thirty eight pages with reports dated July 27, 2009, is exempt from mandatory disclosure, because it is an arrest record of a juvenile pursuant to §1-210(b)(3)(E), G.S.;
j) Record 09-11983, described on the in camera index as “suspicious person”, including four pages with reports dated June 1, 2009, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.;
k) Record 09-13608, described on the in camera index as “domestic violence, arrest, strangulation third degree, dismissed conditionally, only arraignment report is releasable, no disposition as of December 2, 2009” (emphasis added), including thirty pages with reports dated June 18, 2009, is exempt from mandatory disclosure, because it contains information to be used in a prospective law enforcement action disclosure of which would be prejudicial to such action, pursuant to §1-210(b)(3)(C), G.S.;
l) Record 09-14014, described on the in camera index as “police assist, violation protective order”, including twenty five pages with reports dated June 22, 2009, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.;
m) Record 01-14746, described on the in camera index as “well being check”, including three pages with reports dated June 3, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G) , G.S.;
Minutes, Regular Meeting, May 26, 2010
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n) Record 01-20878, described on the in camera index as “domestic violence, assault in the 3rd degree, disposition nolle, November 9, 2001”, including fifteen pages with reports dated July 29, 2001, is exempt from mandatory disclosure, because it contains erased records pursuant to §54-142a, G.S.;
o) Record 01-19897, described on the in camera index as “domestic violence, disorderly conduct, criminal mischief, disposition dismissed, January 29, 2002”, including forty one pages with reports dated July 20, 2001, is exempt from mandatory disclosure, because it contains erased records pursuant to §54-142a, G.S.; and
p) Record 01-22728, described on the in camera index as “suspicious circumstances”, including seventy two pages with reports dated August 14, 2001, is exempt from mandatory disclosure, because it contains uncorroborated allegations pursuant to §1-210(b)(3)(G), G.S.
[16.] 15. At the hearing, the complainant stated that the prosecutor’s office had indicated that the records referred to above at paragraph [15] 14.e) could be released. The hearing officer offered the complainant an opportunity to file a late filed exhibit containing such a statement from the prosecutors. The complainant did, in fact, file with the Commission a statement authorizing release from the Office of the Chief State’s Attorney. But according to the complainant’s correspondence, the respondents have not released such records. As discussed at paragraphs [12]11. and [15]14.e), above, such records resulted in a criminal charge, which has been dismissed or nolled. Therefore, as previously concluded, these records are erased and exempt from disclosure (except to the subject of the records) pursuant to §§54-142a and 54-142(e)(1), G.S.
[17.] 16. It is concluded that the respondents did not violate §§1-210(a) and 1-212(a), G.S., when they failed to provide the requested records to the complainant.
[18.] 17. With respect to the complainant’s request for the imposition of a civil penalty, §1-206(b)(2), G.S. provides, in relevant part:
…upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
Minutes, Regular Meeting, May 26, 2010
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[19.] 18. Based on the conclusion in paragraph [17]16, the Commission finds that that there was no violation of the FOIA, and therefore there are no grounds for a civil penalty.
The following [order] ORDERS by the commission [is] ARE hereby recommended on the basis of the record concerning the above-captioned complaint:
1. THE RESPONDENTS ARE ORDERED TO SEARCH FOR: A) FAMILY VIOLENCE OFFENSE REPORTS MADE PURSUANT TO §46b-38d(a), G.S., IN ANY INCIDENT INVOLVING EITHER GREGORY M. WARZECHA OR TYLER S. WARZECHA; AND B) RECORDS CREATED PURSUANT TO §4-193(c), G.S., THAT RELATE TO THE IN CAMERA RECORDS DESCRIBED AT PARAGRAPH 14. IF ANY SUCH RECORDS ARE LOCATED, THE RESPONDENTS SHALL, WITHIN 30 DAYS OF THE MAILING OF THE FINAL DECISION, PROVIDE SUCH RECORDS TO THE COMPLAINANT WITHOUT CHARGE. IF THE RESPONDENTS HAVE NO SUCH RECORDS, THEY SHALL, WITHIN 30 DAYS OF THE MAILING OF THE FINAL DECISION, PROVIDE THE COMPLAINANT WITH AN AFFIDAVIT DETAILING THE EXTENT OF THEIR SEARCH, AND STATING THAT THEY MAINTAIN NO SUCH RECORDS.
2. EXCEPT AS PROVIDED IN ORDER 1, ABOVE, [T]the complaint is hereby dismissed.
Docket #FIC 2009-406 William Stults v. Board of Selectmen, Town of Beacon Falls
The Hearing Officer’s Report is amended as follows:
[ 21. Considering the fact that the complainant already had knowledge that his employment was terminated prior to the June 8th meeting, the Commission in its discretion declines to impose a null and void order.]
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the requirements of §1-225, G.S.
2. THE ACTION TAKEN AT THE JUNE 8TH MEETING WITH RESPECT TO THE COMPLAINANT’S EMPLOYMENT IS DECLARED NULL AND VOID.