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Final Decision FIC2014-726
In the Matter of a Complaint by
FINAL DECISION
Patrick Egan,
     Complainant
     against
Docket #FIC 2014-726
Chief, Fire Department, City of
New Haven; Fire Department,
City of New Haven; Chairman,
Fire Commission, City of New
Haven; Fire Commission, City of
New Haven; and City of New Haven,
     Respondents
September 9, 2015

     The above-captioned matter was heard as a contested case on August 17, 2015, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  This matter was consolidated for hearing with Docket #FIC 2014-660, Patrick Egan v. Chairman, Board of Fire Commissioners, City of New Haven et al.
     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.   By letter of complaint filed October 28, 2015, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to comply with his requests for certain public records. 
     3.  It is found that the complainant, then an assistant Fire Chief in New Haven, was put on administrative leave on September 22, 2014.
     4.  It is found that the respondent Fire Commission held a meeting on September 30, 2014, which is the subject of Docket #FIC 2014-660, Patrick Egan v. Chairman, Board of Fire Commissioners, City of New Haven et al.  The Commission takes administrative notice of its record and file in that case.
     5.  It is found that the complainant made an October 6, 2014 request to the respondent Chief for the following records:
a.    [a]ll documents received by you or the Department from  
      any individual or entity which relate to the performance,
      evaluation and/or conduct of Assistant Fire Chief Patrick
      Egan;
b.    [a]ll documents prepared by you which relate to the
      performance, evaluation and/or conduct of assistant Fire
      Chief Patrick Egan;
c.    [a]ll emails to or from you or any other Department
      Administrator (whether received or sent from a City or
      personal email account) which relate to the performance,
      evaluation and/or conduct of Assistant Fire Chief Patrick
      Egan;
d.    [a]ll text messages to or from you or any other
      Department Administrator (whether received or sent from
      a City or personal cellular account) which relate to the  
      performance, evaluation and/or conduct of Assistant Fire 
      Chief Patrick Egan;
e.    [e]ach and every document in your possession which
      supports your recommendation for terminating the
      employment of Mr. Egan, as set forth in your letter dated
      September 22, 2014;
f.    [a] complete copy of Mr. Egan’s personnel file.
     6.  It is found that the complainant also made an October 6, 2014 request to the New Haven Board of Fire Commissioners for:
a.     [a]ll documents received by the Commission from any
       individual or entity which relate to the performance, 
       evaluation and/or conduct of Assistant Fire Chief Patrick 
       Egan;
b.     [a]ll documents prepared by Chief Allyn Wright which
       relate to the performance, evaluation and/or conduct of
       Assistant Fire Chief Patrick Egan;
c.     [a]ll emails to or from any member of the Fire Commission
       (whether received or sent from a City or personal email account)
       which relate to the performance, evaluation
       and/or conduct of Assistant Fire Chief Patrick Egan;
d.     [a]ll text messages to or from any member of the Fire 
       Commission (whether received or sent from a City or
       personal cellular account) which relate to the performance,
       evaluation and/or conduct of Assistant Fire Chief Patrick
       Egan;
e.     [t]he tape recording of each and every meeting of the
       Commissin (including but not limited to the meeting of
       September 30, 2014) at which meeting the Commission
       considered the performance, evaluation and/or conduct of
       Assistant Fire Chief Patrick Egan;
       evaluation and/or conduct of Assistant Fire Chief Patrick Egan;
f.      [t]he agenda of each and every meeting of the Commission (including
       but not limited to the meeting of September 30, 2014) at which meeting the
       Commission considered the performance, evaluation and/or conduct of Assistant
       Fire Chief Patrick Egan; and
g.     [t]he minutes of each and every meeting of the Commission (including but not
       limited to the meeting of September 30, 2014) at which meeting the Commission
       considered the performance, evaluation and/or conduct of Assistant Fire Chief
       Patrick Egan.
     7.  It is found that the respondent Board replied to the request on October 28, 2014, and the respondent Chief replied on October 30, 2014, providing the requested personnel file only.
     8.  It is found that the respondents contacted the complainant in February 2015 to inform him that the records had been compiled and were available to be reviewed.
     9.  It is found that the complainant reviewed the records on three occasions in April of 2015.
     10. It is found that the respondents did not offer access to the tape recording of the September 30, 2014 meeting until June of 2015, and did not provide a copy until the date of hearing on this matter.
     11. Section 1-200(5), G.S., provides:
“Public records or files” means 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.
     12. Section 1-210(a), G.S., provides in relevant part:
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, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 
     13. It is concluded that the requested records, to the extent they exist, are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
     14. The complainant maintains that the respondents have not fully complied with his requests.  First, the complainant maintains that no text messages or emails sent from personal accounts were provided.  Second, the complainant maintains that letters discussed by and in the custody of the respondent Board’s Chairman at the September 30, 2014 meeting have not been produced.  Third, the complainant maintains that redactions of six of the emails provided to him are not proper.  Finally, the complainant maintains that provision of a copy of the tape recording of the September 30, 2014 meeting on the day of the hearing in his matter was not prompt.
     15. With respect to the requested text messages and emails sent from private email accounts, the respondents deny that such records exist, and the complainant offered no evidence to suggest that such records do in fact exist.
     16. With respect to the letters discussed by, and in the custody of, the respondent Board’s Chairman at the September 30, 2014 meeting, it is found that those records existed at the time of the September 30, 2014 meeting, and have not been provided to the complainant.  It is found that those letters contained criticisms of the investigation and firing of firefighter Aaron Brantley, and about discriminatory practices within the New Haven Fire Department.  It is found that the complainant was the subject of complaints about his role in the firing of Brantley, and was accused of discriminatory practices, and that the letters are reasonably within the scope of the complainant’s requests for records relating to the performance, evaluation or conduct of the complainant.  It is found that one of the letters was received from the Greater New Haven NAACP, and another was received from the New Haven Board of Alderman.  The parties did not present clear evidence concerning the number of letters held by the Chairman at the time of the meeting, but the comments of those present at the September 30, 2014 meeting suggest that other letters were submitted.  The respondents offered no evidence that any of the letters do not currently exist and are not in the custody of the respondent Chairman or cannot be obtained by him from their original sources.
     17. With respect to the redactions, it is found that six emails were essentially redacted in full.  Those six emails were submitted, without redaction, for in camera inspection.  It is found that the six emails are not responsive to the complainant’s request, because they are not “to or from any member of the Fire Commission … which relate to the performance, evaluation and/or conduct of Assistant Fire Chief Patrick Egan” or “to or from [the Chief] or any other Department Administrator … which relate to the performance, evaluation and/or conduct of Assistant Fire Chief Patrick Egan” as requested by the complainant (see paragraphs 5.c and 6.c, above).  The six emails are between lawyers for the respondents and relate to legal strategy.
     18. With respect to the provision of the copy of the tape recording of the September 30, 2014 meeting in August of 2015, the respondents offered no evidence to justify the delay in providing this record, and it is concluded that such provision was not prompt within the meaning of §§1-210(a) and 1-212(a), G.S.
     19. It is therefore concluded that the respondents violated §§1-210(a) and 1-212(a), G.S., by failing to provide copies of the letters in the custody of, and discussed by, the Chairman of the respondent Board at the September 30, 2014 meeting, and by failing to promptly provide a copy of the tape recording of that meeting.

     The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
     1.  The respondent Chairman shall forthwith provide to the complainant, free of charge, copies of all letters received by the Chairman of the respondent Board and referenced by him or members of the public speaking at the September 30, 2014 meeting.
     2.  Henceforth, the respondents shall strictly comply with the promptness requirements of §1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 9, 2015.
__________________________
Cynthia A. Cannata
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:
Patrick Egan
c/o Lawrence C. Sgrignari, Esq.
Gesmonde, Pietrosimone & Sgrignari, LLC
3127 Whitney Avenue
Hamden, CT  06518
Chief, Fire Department, City of New Haven; Fire Department,
City of New Haven; Chairman, Fire Commission, City of New
Haven; Fire Commission, City of New Haven; and City of New Haven
c/o Kathleen Foster, Esq.
Sr. Assistant Corporation Counsel
City of New Haven
165 Church Street
New Haven, CT  06510
and
Jarad M. Lucan, Esq.
Shipman & Goodwin, LLP
One Constitution Plaza
Hartford, CT  06103
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-726/FD/cac/9/9/2015