Final Decision FIC2011-362
In the Matter of a Complaint by
Stamford Professional Fire Fighters
Association, Local 786,
||Docket #FIC 2011-362|
President, Turn of the River Fire Department; and
Turn of the River Fire Department,
April 11, 2012
The above-captioned matter was consolidated for hearing with Docket #FIC 2011-363, Stamford Professional Fire Fighters Association, Local 786 v. President, Belltown Fire Department; and Belltown Fire Department. Both cases were heard as contested cases on January 12, 2012, at which time the complainant and the respondents in the above captioned matter appeared and presented testimony, exhibits and argument on the complaint.
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, by letter dated June 15, 2011, the complainant made a request to the respondents to inspect and copy various records.
3. By letter dated July 8, 2011 and filed with the Freedom of Information Commission (the “Commission”) on July 12, 2011, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOIA”) by failing to respond to the June 15, 2011 request for records.
4. It is found that, by letter dated September 26, 2011, the respondents informed the complainant of their views concerning the various aspects of the June 15, 2011 request.
5. 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.
6. 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.
7. Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
8. It is found that the records at issue are public records within the meaning of §1-200(5), G.S., and therefore must be disclosed in accordance with §§1-210(a) and 1-212(a), G.S., unless they are exempt from disclosure.
9. At the hearing in this matter, the parties stipulated that the requested records concerning minutes and tax returns were provided to the complainant. Counsel for the complainant stated that the complainant wished to narrow its remaining request to only records pertaining to the “new fire plan”.
10. It is found that the respondents maintain additional records responsive to the June 15, 2011 request that they claim are exempt from disclosure pursuant to §§1-210(b)(4), (1) and (10), G.S.
11. The respondents submitted additional records, consisting of various emails and documents related to the new fire plan, for in camera inspection by the Commission. Such records shall be identified herein as IC 2011-362-001 through IC 2011-362-007. Counsel for the respondents stated at the hearing that he also maintained records on behalf of the respondents which he did not file for in camera inspection because he believed that such records were without question subject to attorney-client privilege. The complainant did not press to have such records filed for an in camera inspection.
12. The respondents claim that all of the in camera records are exempt from disclosure pursuant to §1-210(b)(4), G.S., because they pertain to strategy and negotiations with respect to pending litigation.
13. With regard to the §1-210(b)(4), G.S., claim of exemption, such provision permits an agency to withhold “records 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 finally adjudicated or otherwise settled.”
14. The Commission takes administrative notice of the final decisions in Docket #FIC 2010-763; Daniel Hunsberger and the Stamford Professional Fire Fighters Association v. Chief, Belltown Volunteer Fire Department; and Belltown Volunteer Fire Department; Docket #FIC 2010-795; Daniel Hunsberger and the Stamford Professional Fire Fighters Association v. Chief, Springdale Fire Company, Inc.; and Springdale Fire Company, Inc.; Docket #FIC 2010-796; Daniel Hunsberger and the Stamford Professional Fire Fighters Association v. Mayor, City of Stamford; and City of Stamford; 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 Commission also notes that all four of the complaints in these matters were dismissed. The present matter seeks the same categories of records as these earlier cases (especially Docket #FIC 2011-019), but pertains to records generated during a later period in time (a “bring down”).
15. The parties herein stipulated that the entire records in Docket #FIC 2011-359, Stamford Professional Fire Fighters Association, Local 786 v. Chief, Springdale Fire Department; and Springdale Fire Department, and Docket #FIC 2011-361, Stamford Professional Fire Fighters Association, Local 786 v. President, Long Ridge Fire Department; and Long Ridge Fire Department, are incorporated by reference herein.
16. It is found that at the time of the records request and continuing to the date of the hearing, litigation is pending in Turn of River Fire Department, Inc. and Matthew Maounis v. City of Stamford and Dannel F. Malloy, FST CV 08 4014450 S. The Superior Court decision (August 11, 2009) noted that the court was being asked to “micro-manage” the relationships at issue, that the disputes at issue were “largely self-induced” and “petty”. Id. at 6. The resolution of the disputes in this litigation will directly affect the respondents herein. Indeed, the “new fire plan”, which is the subject of the records request herein, was designed by then Mayor Malloy to settle this litigation as well as any similar claims by other fire districts.
17. It is found that records IC 2011-362-001 through IC 2011-362-007 do, in fact, pertain to negotiation with respect to the pending litigation.
18. It is therefore concluded that the in camera records are exempt from disclosure pursuant to §1-210(b)(4), G.S. The Commission, in its discretion, declines to consider the respondents’ additional claims of exemption.
19. Based upon the foregoing, it is concluded that the respondents did not violate the FOIA as alleged in the complaint.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 11, 2012.
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:
Stamford Professional Fire Fighters Association, Local 786
c/o Daniel P. Hunsberger, Esq.
35 Glen Hollow
Monroe, CT 06408
President, Turn of River Fire Department; and
Turn of River Fire Department
c/o Mark J. Kovack, Esq.
Berchem, Moses & Devlin, P.C.
27 Imperial Avenue
Westport, CT 06880
Cynthia A. Cannata
Acting Clerk of the Commission