Connecticut Freedom of Information Commission

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TO: Freedom of Information Commission
FROM: Mary E. Schwind
RE: Minutes of the Commission’s regular meeting of April 10, 2013
DATE: April 16, 2013
     A regular meeting of the Freedom of Information Commission was held on March 28, 2013, 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 Norma E. Riess, presiding
     Commissioner Sherman D. London
     Commissioner Owen P. Eagan
     Commissioner Amy J. LiVolsi
     Commissioner Jay Shaw (participated via speakerphone)
     Commissioner Sean McElligott
     Commissioner Matthew Streeter
     Commissioner Christopher P. Hankins
     Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, Gregory F. Daniels, 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 upon request.
     The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of March 28, 2013.
Bill Henderson v. Chief, Police Department, City of Hartford; and Police Department, City of Hartford 
     Bill Henderson appeared on his own behalf and participated via speakerphone.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.  The proceedings were recorded digitally.
David McNichol v. Chairman, Connecticut Board of Pardons and Paroles; and Connecticut Board of Pardons and Paroles
     The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Jose Arcia v. Office of the Corporation Counsel, City of Hartford; and City of Hartford
     The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
James Torlai 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.
James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     James Torlai appeared on his own behalf.  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.
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Edward Tuccio v. Chief, Police Department, Town of Ridgefield; and Police Department, Town of Ridgefield
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Diane Cece v. Police Commission, City of Norwalk; and City of Norwalk
     Diane Cece appeared on her own behalf.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.  The proceedings were recorded digitally.
Kyle Prall and Information Freedom LLC v. Chief, Police Department, City of Stamford; and Police Department, City of Stamford
     The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Nancy Beckwith v. Board of Directors, Poquonnock Bridge Fire District; and Poquonnock Bridge Fire District
     Nancy Beckwith appeared on her own behalf.  Christopher Clark appeared on behalf of the respondents.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report.  The proceedings were recorded digitally.
Adam J. Petrillo v. Board of Directors, Poquonnock Bridge Fire District; and Poquonnock Bridge Fire District
     The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
    
Michael Aronow v. Director, Health Affairs Policy Planning, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
     Attorney Heena Kapadia appeared on behalf of the complainant.  Attorney Henry F. Murray appeared on behalf of the intervener American Association of University Professors, University of Connecticut Health Center Chapter.  Assistant Attorney General Jeffrey M. Blumenthal appeared on behalf of the state agency respondents.  Attorney Jeffrey J. Mirman appeared on behalf of intervener Jay R. Lieberman, M.D.  The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners again unanimously voted to amend the Hearing Officer’s Report.  Commissioners Livolsi and Shaw thereupon left the meeting and did not participate in any further votes at the meeting.  The Commissioners unanimously voted (6-0) to adopt the Hearing Officer’s Report as amended.*  Attorney Mirman moved to stay the order until an appeal could be filed in this matter.  The Commissioners unanimously voted (6-0) to grant the motion for stay until such time as the Superior Court rules on a motion to stay should the matter be appealed.  The proceedings were recorded digitally.

     Victor R. Perpetua reported on pending appeals.

     Colleen Murphy reported on staff reports, including the success of the Commission’s annual conference and the news that the Governor has appointed Michael Daly to replace long-time Commissioner Sherman London.

     Colleen Murphy and Paula Pearlman reported on legislation.

     The meeting was adjourned at 4:51 p.m.

                                                                           _________________________________
                                                                           Mary E. Schwind

MINREGmeeting 04102013/mes/04122013

* See attached for Amendments
ATTACHMENTS
James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     The Hearing Officer’s Report is amended by deleting paragraph 10, and renumbering the remaining paragraphs as follows:
     [10.  By letter dated February 29, 2012, the complainant informed the respondents that he had “obtained various copies of the investigation report, the most recent version I have was updated on July 25, 2011. There is no need to provide another copy of this report unless it has been further modified.” It is therefore found that the portion of the complainant’s request, described in paragraph 3.a, above, that relates to the investigation report, is withdrawn.]
     10. [11.] At the hearing, the complainant withdrew the portions of his complaint described in paragraphs 3.h and 3.l, above.
     11. [12.] It is found that the respondents conducted a search for the requested records, and provided records reasonably responsive to paragraphs 3.c, 3.f, 3.i, and 3.j, above.
     12. [13.] The testimony at the February 4, 2013 hearing principally concerned the existence of a video recording of the traffic stop of the complainant. It is found that no recording of that stop exists, due to a malfunction of the equipment at the time of the stop. Following the conclusion of that hearing, the complainant withdrew the portion of his complaint regarding the records described in paragraph 3.b, above.
     13. [14.] With respect to the portion of the request described in paragraph 3.k, above, it is found that the respondents acknowledged the existence of two fingerprint records, but did not provide them to the complainant.
     14. [15.] With respect to the records described in paragraphs 3.a (other than the July 25, 2011 investigation report), 3.d, 3.e, and 3.g, above, the respondents maintain that such records have been erased pursuant to §54-142a, G.S.
     15. [16.] Section 54-142a, G.S., provides in relevant part:
          (a)  Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect.
...
          (c)(1) Whenever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased ….
…...
          (e)(1)  The clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject's identity, information pertaining to any charge erased under any provision of this section [Emphasis added.]
     16. [17.] It is found that at the time of the complainant’s request on January 2, 2012, the charges against him were still pending, and that therefore no records relating to the charges had been erased at that time.
     17. [18.] It is found that the charges against the complainant were disposed of by the court sometime between January 2, 2012 and March 27, 2012. If the charges were dismissed, the records were erased after the expiration of the appeal period, pursuant to §54-142a(a), G.S.; if the charges were nolled, the records were erased 13 months later, on or about February 2013, pursuant to §54-142a(c)(1), G.S.
     18. [19.] However, it is concluded that §54-142a(e)(1), G.S., expressly authorizes disclosure of erased records by the respondents to the complainant, who is the subject of the records, upon proof of his identity.
     19. [20.] At the hearing on this matter, the respondents suggested that the complainant’s failure to file a motion with the court to obtain access to his records precluded him from receiving the records from the respondents. However, it is concluded that §54-142a(e)(1), G.S., does not require the subject of erased records to file a motion with the court. (Compare §54-142a(f), G.S., which permits “[u]pon motion properly brought … disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased, or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial ….”  The complainant falls within neither of those two categories of persons who are required to move the court for disclosure of erased records.)
     20. [21.] The respondents also maintain that they are permitted to withhold the requested records pursuant to §1-215, G.S.,
     21. [22.] Section 1-215, G.S., provides as follows:
          (a)  Notwithstanding any provision of the general statutes to the contrary, and except as otherwise provided in this section, any record of the arrest of any person, other than a juvenile, except a record erased pursuant to chapter 961a, shall be a public record from the time of such arrest and shall be disclosed in accordance with the provisions of section 1-212 and subsection (a) of section 1-210, except that disclosure of data or information other than that set forth in subdivision (1) of subsection (b) of this section shall be subject to the provisions of subdivision (3) of subsection (b) of section 1-210.  Any personal possessions or effects found on a person at the time of such person's arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested. (Emphasis supplied).
          (b)  For the purposes of this section, “record of the arrest” means (1) the name and address of the person arrested, the date, time and place of the arrest and the offense for which the person was arrested, and (2) at least one of the following, designated by the law enforcement agency:  The arrest report, incident report, news release or other similar report of the arrest of a person.
     22. [23.]  It is the respondents’ position that, other than the pieces of information required to be disclosed pursuant to §1-215, G.S., they are not required to disclose any other records having to do with or relating in any way to the arrest of an individual while the case against such individual is pending in criminal court.
     23. [24.]  The Commission notes that the respondents must rely on the Appellate Court’s decision in Commissioner of Public Safety v. Freedom of Information Com'n, 137 Conn.App. 307 (2012), cert. granted SC 19047 (currently still in briefing). The Commission, in its petition to the Supreme Court, has argued why it believes that Appellate Court decision is incorrect. However, even if the Appellate Court decision is correct, its holding is limited to cases that are pending, and the criminal case against the complainant was not pending at the time the respondents denied the complainant’s request for records. Moreover, the respondents did not assert §1-215, G.S., as a defense to disclosure at the time the charges against the complainant were pending, and any such claim is deemed to have been waived.
     24. [25.] It is further found that §1-215, G.S., required the respondents, at a minimum, to provide the “record of the arrest” to the complainant at the time of his request, and that they failed to do so.
     25. [26.] It is therefore concluded that the respondents violated the FOI Act by first failing to provide records pertaining to pending charges while the charges were still pending, including but not limited to the “record of the arrest,” and then withholding the same records from the complainant, the subject of the records, on the grounds that the records had been erased in the time period that elapsed between his original January 2, 2012 request and the respondents’ eventual March 27, 2012 response.
     26. [27.] With respect to remedies, §1-206(b)(2), G.S., provides in relevant part:
In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.
     27. [28.] Although the Commission does not ordinarily enforce compliance with records access provisions of the statutes, such as §54-142a(e)(1), that apply to particular individuals rather than the public at large, in this case the complainant was entitled to records concerning his arrest before they were erased, and the respondents waived any objection to disclosure at the time on the grounds that the charges were pending. The respondents then refused to provide copies of the records on the grounds that they had been erased during the 78 days between when they received his request and when they ultimately denied his request. Under the circumstances, the Commission in its discretion believes an order to the respondents to comply with §54-142a(e)(1), G.S., is appropriate to rectify the denial of the complainant’s right to receive records promptly, before they are erased.

     Paragraph 1 of the order in the Hearing Officer’s report is amended as follows:
    1.  The respondents shall forthwith provide copies of any responsive erased records to the complainant, upon his submitting to the respondents satisfactory proof of his identity, pursuant to §54-142a(e)(1), G.S. Specifically, the respondents shall provide copies of the records described in paragraphs 3.a [(excluding the July 25, 2011 investigation report)], 3.d, 3.e, 3.g and 3.k.
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     The Hearing Officer’s Report is amended by deleting paragraphs 1 through 21 of the findings and by adding the following second introductory paragraph:
     BY EMAIL DATED AND FILED APRIL 1, 2013, THE COMPLAINANT NOTIFIED THE COMMISSION THAT HE HAD DECIDED TO WITHDRAW “ANY AND ALL” OF HIS PENDING COMPLAINTS.
     Order 1 in the Hearing Officer’s Report is amended as follows:
     1.  BASED ON THE WITHDRAWAL OF THE COMPLAINT, the complaint is hereby dismissed.
     The Hearing Officer’s Report is amended by deleting Orders 2 and 3.
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police; and State of Connecticut, Department of Emergency Services and Public Protection, Division of State Police
     The Hearing Officer’s Report is amended by deleting paragraphs 1 through 20 of the findings and by adding the following second introductory paragraph:
     BY EMAIL DATED AND FILED APRIL 1, 2013, THE COMPLAINANT NOTIFIED THE COMMISSION THAT HE HAD DECIDED TO WITHDRAW “ANY AND ALL” OF HIS PENDING COMPLAINTS.
     Order 1 in the Hearing Officer’s Report is amended as follows:
     1 .BASED ON THE WITHDRAWAL OF THE COMPLAINT, the complaint is hereby dismissed.
     The Hearing Officer’s Report is amended by deleting Orders 2 and 3.
Edward Tuccio v. Chief, Police Department, Town of Ridgefield; and Police Department, Town of Ridgefield
     The Hearing Officer’s Report is amended by adding a third introductory paragraph as follows:
     BY EMAIL DATED AND FILED APRIL 1, 2013, THE COMPLAINANT NOTIFIED THE COMMISSION THAT HE HAD DECIDED TO WITHDRAW ‘ANY AND ALL’ OF HIS PENDING COMPLAINTS.
     Order 1 in the Hearing Officer’s Report is amended as follows:
     1. BASED ON THE WITHDRAWAL OF THE COMPLAINT, the complaint is hereby dismissed.
Edward Tuccio v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection
     The Hearing Officer’s Report is amended by adding a second introductory paragraph as follows:
     FOLLOWING THE HEARING IN THIS MATTER, THE COMPLAINANT WITHDREW HIS COMPLAINT BY LETTER DATED APRIL 1, 2013.  THE FREEDOM OF INFORMATION COMMISSION TAKES ADMINISTRATIVE NOTICE OF SUCH LETTER.
     The order in the Hearing Officer’s Report is amended as follows:
     1. BASED ON THE WITHDRAWAL OF THE COMPLAINT, the complaint is hereby dismissed.
Michael Aronow v. Director, Health Affairs Policy Planning, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
     Paragraph 10 of the Hearing Officer’s Report is amended as follows:
     10.  It is found that the University of Connecticut respondents maintain the records described in paragraph 2, above[, and it is therefore concluded that such records are “public records” and must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure].
     Paragraph 11 of the Hearing Officer’s Report is amended as follows:
     11.  It is found that, by letter dated September 28, 2012, the FOI Officer informed the complainant that the records he requested were [exempt from disclosure] NOT PUBLIC RECORDS  pursuant to Conn. Gen. Stat. §10a-154a, entitled “Performance and evaluation records of faculty and professional staff members not public records.”
     Paragraph 13 of the Hearing Officer’s Report is amended as follows:
     13.  It is found that the records at issue in this case are the end result of a University of Connecticut Health Center (“UCHC”) grievance procedure.  It is found that the UCHC grievance procedure was triggered when, on September 30, 2011, the complainant filed a grievance with the University’s HCAC against Dr. Jay Lieberman. 
     Paragraph 22 of the Hearing Officer’s Report is amended as follows:
     22.  At the close of the hearing on the matter, the respondents’ FOI Officer submitted the records described in paragraph 2, above, to the Commission for an in camera inspection (hereinafter the “in camera records”).  The in camera records submitted consist of one four-page letter from the HCAC dated April 13, 2012, and one one-page letter from Dr. Austin dated [April] AUGUST 14, 2012.
     A new Paragraph 31 is added as follows:
     31.  IT IS FOUND THAT THE RECORDS DESCRIBED IN PARAGRAPH 2, ABOVE, ARE PUBLIC RECORDS.
     The remaining paragraphs are renumbered as follows:
     32. [31.]  It is therefore concluded that the requested records are not exempt from public disclosure as records “maintained or kept on file by a board of trustees of a constituent unit of the state system of higher education which [are records] of the performance and evaluation,” pursuant to §10a-154a, G.S.
     33. [32.] Based on the foregoing, it is concluded that the University of Connecticut respondents violated the disclosure provisions of §§1-210(a) and 1-212(a), G.S., by denying the complainant’s request for access to the records described in paragraph 2, above.