20111026MRM

TO: Freedom of Information Commission

FROM: Thomas A. Hennick

RE: Minutes of the Commission’s regular meeting of October 26, 2011

A regular meeting of the Freedom of Information Commission was held on October 26, 2011, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:12 p.m. with the following Commissioners present:

Commissioner Norma E. Riess, presiding

Commissioner Sherman D. London

Commissioner Owen P. Eagan

Commissioner Amy J. LiVolsi

Commissioner Jay Shaw

Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Victor R. Perpetua, Tracie C. Brown, Kathleen K. Ross, Lisa F. Siegel, 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 October 12, 2011.

Colleen M. Murphy introduced David Guay, the recently appointed Executive Administrator of the Office of Governmental Accountability (OGA). Guay spoke briefly with commissioners about his vision for the newly created OGA, which now houses the Freedom of Information Commission.

Docket #FIC 2010-733 Vernal Morgan v. Warden, State of Connecticut, Department of Correction, Cheshire Correctional Institution; and State of Connecticut, Department of Correction

The Commissioners unanimously voted to table the matter.

Docket #FIC 2011-018 Umar Shahid v. Warden, State of Connecticut, Department of Correction, Corrigan-Radgowski Correctional Center; and State of Connecticut, Department of Correction

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Minutes, Regular Meeting, October 26, 2011

Page 2

Docket #FIC 2011-027 Umar Shahid v. Leo C. Arnone, Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2010-780 David Cummings v. Executive Director, Superior Court Operations, State of Connecticut, Judicial Branch; and State of Connecticut, Judicial Branch

The matter was tabled.

Docket #FIC 2010-781 David Cummings v. Robert Coffey, Director, Human Resources Management Unit, State of Connecticut, Judicial Department; and State of Connecticut, Judicial Department

The matter was tabled.

Docket #FIC 2011-019 Daniel P. Hunsberger and the Stamford Professional Fire Fighters Association Local 786 v. Chief, Turn of the River Fire Department, Inc., City of Stamford

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2011-040 Robert A. Cushman v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Docket #FIC 2011-041 Robert A. Cushman v. Commissioner, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety

The Commissioners unanimously voted to adopt the Hearing Officer’s Report.

Minutes, Regular Meeting, October 26, 2011

Page 3

Docket #FIC 2011-073 Jim Moore and the Waterbury Republican-American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education

Assistant Attorney General Jane Commerford appeared on behalf of the respondents. The Commissioners voted, 4-0, to amend the Hearing Officer’s Report. The Commissioners voted, 4-0, to adopt the Hearing Officer’s Report as amended. The Commissioners voted, 4-0, to reopen the matter. The Commissioners voted, 4-0, to amend the Hearing Officer’s Report a second time. The Commissioners voted, 4-0, to adopt the Hearing Officer’s Report as amended. Commissioner London recused himself from participation in this matter.

Docket #FIC 2011-227 Guy R. Sullivan v. Transition Committee, State of Connecticut, Council on Developmental Disabilities

Guy R. Sullivan appeared on his own behalf. Assistant Attorney General Emily Melenedez appeared on behalf of the respondents. The Commissioners unanimously voted to remand the Hearing Officer’s Report to the Hearing Officer for the express purpose of holding a hearing on proposed civil penalties against the chairman and vice chairman of the respondent committee. Those individuals are to be named as respondents in the civil penalty phase of the process. The proceedings were recorded digitally.

Docket #FIC 2011-319 Ann Cleary v. Jeffrey Finch, Chief, Police Department, Town of Bethel; Robert Cedargren, Captain, Police Department, Town of Bethel; Officer Michael Conroy, Police Department, Town of Bethel; Officer Michael Kaluta, Police Department, Town of Bethel; Officer James Wright, Police Department, Town of Bethel; and Police Department, Town of Bethel

Ann Cleary appeared on her own behalf. Attorney Martin Lawlor appeared on behalf of the respondents. 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, October 26, 2011

Page 4

Lisa F. Siegel reported on the New Britain Superior Court Memorandum of Decision in Richard Simons, Yale Police Benevolent Association v. Freedom of Information Commission, et al. dated, October 17, 2011.

Victor Perpetua reported on pending appeals.

The meeting was adjourned at 3:38 p.m.

_________________

Thomas A. Hennick

*SEE ATTACHED FOR AMENDMENTS

MINREGmeeting 10262011/tah/10272011

Minutes, Regular Meeting, October 26, 2011

Page 5

AMENDMENTS

Docket #FIC 2011-073 Jim Moore and the Waterbury Republican-American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education

The Hearing Officer’s Report is amended as follows:

15. By letter of complaint dated January 26, 2011 and filed February 14, 2011, the complainants appealed to this Commission, alleging that the respondents violated the open meetings provisions of the FOI Act when, on January 25, 2011, they convened privately to hear testimony from the Torrington Board of Education and the Torrington Public Schools Administrators Association (TPSA), as required by the Teacher Negotiation Act (TNA), following the parties’ failure to agree on contract terms through negotiation and mediation. In addition, the complainants allege that the respondents violated the FOI Act when they convened in “executive session” to discuss the complainants’ objection to holding the hearing in private. The complainants further allege that the respondents violated the FOI Act’s notice requirements in that they failed to provide notice of the hearing.

22. THE RESPONDENT DEPARTMENT FURTHER ARGUES THAT EVEN IF THE PANEL IS FOUND TO BE A PUBLIC AGENCY WITHIN THE MEANING OF §1-200(1), G.S., ITS PROCEEDINGS ARE NOT SUBJECT TO THE OPEN MEETINGS REQUIREMENTS OF THE FOI ACT, FIRST, BECAUSE SUCH PROCEEDINGS ARE “ADMINISTRATIVE OR STAFF MEETINGS OF A SINGLE-MEMBER PUBLIC AGENCY.” ACCORDING TO THE RESPONDENT DEPARTMENT, THE PANEL PERFORMS “DECIDEDLY” ADMINISTRATIVE FUNCTIONS OF THE DEPARTMENT, WHICH IS HEADED BY A COMMISSIONER, WHO IS A SINGLE-MEMBER PUBLIC AGENCY. THUS, ACCORDING TO THE RESPONDENT DEPARTMENT, THE MEETINGS OR PROCEEDINGS OF THE PANEL, HAVING BEEN FOUND TO BE A COMMITTEE OF THE DEPARTMENT, CONSTITUTE AN ADMINISTRATIVE OR STAFF MEETING OF A SINGLE-MEMBER PUBLIC AGENCY.

23. IT IS FOUND THAT THE FUNCTION OF THE PANEL WAS NOT TO CARRY OUT THE ADMINISTRATIVE TASKS OF THE RESPONDENT DEPARTMENT, BUT INSTEAD, TO CARRY OUT THE SUBSTANTIVE RESPONSIBILITIES OF THE RESPONDENT DEPARTMENT AS DELINEATED IN

Minutes, Regular Meeting, October 26, 2011

Page 6

THE TNA IN ORDER TO EFFECTUATE STATE BOARD OF EDUCATION POLICY. MOREOVER, AS FOUND IN PARAGRAPH 9, ABOVE, THE PANEL ITSELF IS A PUBLIC AGENCY, AND THEREFORE IS SUBJECT TO THE OPEN MEETING REQUIREMENTS OF THE FOI ACT.

24. ACCORDINGLY, IT IS CONCLUDED THAT THE PROCEEDINGS OF THE PANEL ARE NOT “ADMINISTRATIVE OR STAFF MEETINGS OF A SINGLE-MEMBER PUBLIC AGENCY,” SUCH THAT THEY FALL OUTSIDE THE DEFINITION OF “MEETING” IN §1-200(2), G.S.

[ 22.] 25. In Glastonbury Education Association, above, our Supreme Court construed the “strategy and negotiation with respect to collective bargaining” language in §1-200(2), G.S., to exclude from the term “meeting” only those parts of collective bargaining sessions that relate specifically to “strategy or negotiations,” rather than to collective bargaining proceedings in their entirety. Because the Commission in that case had concluded that the entirety of an arbitration hearing should have been open to the public, including those parts that related specifically to “strategy and negotiations,” the Court “postpone[d] to another day questions concerning the validity of a more narrowly tailored FOIC order that requires open hearings only with respect to evidentiary presentations and permits executive sessions for discussion and argument about the contents of the parties’ last best offers.” Id. at 718

[23.] 26. The Glastonbury court did provide some guidance in distinguishing between discussion and argument about last best offers, which it concluded constituted “strategy and negotiations,” and the evidentiary portions of the proceedings, which it concluded did not fall within that meeting exclusion.

[24.] 27. First, the Glastonbury court concluded that the actual presentation of last best offers by the parties sufficiently resembles negotiations, despite the fact that they occur during a proceeding denominated as “arbitration,” to be excluded from the “meeting” requirements of the FOI Act. Id. at 717.

[25.] 28. Second, the Glastonbury court at 717-718 observed that the Teacher Negotiations Act [(TNA)] “permits each party, in its presentations to the arbitral board, ‘to submit all relevant evidence, to introduce relevant documents and written material, and argue on behalf of its last best offer.’ [Citation omitted.] In aid of this evidentiary process, the arbitrators have the ‘power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses.’ [Citation omitted.] Thus, the arbitration hearing also provides an opportunity for the parties to create an evidentiary record on which the arbitrators can rely in making their final determination of any issues left unresolved.” [Emphasis added.]

Paragraphs 26-43 in the proposed Hearing Officer’s Report are renumbered in sequence. Number 26 becomes 29, 27 becomes 30 etc. through to number 43, which becomes number 46.

Minutes, Regular Meeting, October 26, 2011

Page 7

The order in the Hearing Officer’s Report is amended as follows:

3. ENFORCEMENT OF PARAGRAPHS 1 AND 2 OF THIS ORDER IS STAYED UNTIL THE RESOLUTION OF THE APPEALS IN MARTIN GOULD V. FREEDOM OF INFORMATION COMMISSION, JIM MOORE, AND THE WATERBURY REPUBLICAN-AMERICAN, HHB-CV-11-6009584S AND STATE OF CONNECTICUT, DEPARTMENT OF EDUCATION V. FREEDOM OF INFORMATION COMMISSION, JIM MOORE, AND THE WATERBURY REPUBLICAN-AMERICAN, HHB-CV-11-6009562S.

The Hearing Officer’s Report is amended as follows:

7. It is found that the respondents maintain a case file related to the September [10 ] 3 incident, described in paragraph 2, above. It is found that such file contains the following records: an incident report, information with unsigned application for arrest warrant attached, a statement by the witness to the September 10 incident, and a statement by the chief state’s attorney regarding his decision not to prosecute. It is found that the respondents provided the complainant with a copy of the incident report and information/arrest warrant application, but declined to provide her with a copy of the statements of the witness and the chief state’s attorney.

8. It is found that the investigation of the September [10] 3 incident has been concluded and that the case file, described in paragraph 7, above, is closed. The respondents claim that the entirety of the case file related to the September 10 incident is exempt from disclosure, pursuant to §1-210(b)(3), G.S., because it contains uncorroborated allegations of criminal activity.

11. It is found that the records described in paragraph 7, above, are records of a law enforcement agency, not otherwise available to the public, which were [complied] COMPILED in connection with the detection or investigation of crime, and which contain uncorroborated allegations subject to destruction pursuant to §1-216, G.S. It is further found that disclosure of such records would not be in the public interest.