| TO: | Freedom of Information Commission |
| FROM: | Thomas A. Hennick |
| RE: | Minutes of the Commission’s regular meeting of August 26, 2015 |
A regular meeting of the Freedom of Information Commission was held on August 26, 2015, 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 Owen P. Eagan, presiding
Commissioner Jay Shaw (participated via speakerphone)
Commissioner Matthew Streeter
Commissioner Christopher P. Hankins
Commissioner Michael C. Daly
Commissioner Francis J. Brady
Commissioner Jay Shaw (participated via speakerphone)
Commissioner Matthew Streeter
Commissioner Christopher P. Hankins
Commissioner Michael C. Daly
Commissioner Francis J. Brady
Also present were staff members, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, Tracie C. Brown, Virginia Brown, Cindy Cannata, and Thomas A. Hennick.
The Commissioners voted, 5-0, to approve the minutes of the Commission’s regular meeting of August 12, 2015. Commissioner Daly abstained.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
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Juan Maldonado v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction |
Juan Maldonado participated via speakerphone. Attorney James Neal appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
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Juan Maldonado v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction |
Juan Maldonado participated via speakerphone. Attorney James Neal appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
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William Gemmell v. Chief, Police Department, City of Norwalk; Police Department, City of Norwalk; and City of Norwalk |
William Gemmell participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
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Sylvester Walker v. Chief, Police Department, City of Waterbury; Police Department, City of Waterbury; and City of Waterbury |
Sylvester Walker participated via speakerphone. Attorney Kevin Daly appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
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David Desroches v. Chairman, Board of Education, Darien Public Schools; and Board of Education, Darien Public Schools |
David Desroches appeared on his own behalf. Attorney Thomas Mooney appeared on behalf of the respondents. The Commissioners voted, 5-0, to amend the Hearing Officer’s Report.
The Commissioners voted, 5-0, to approve the Hearing Officer’s Report as amended.* Commissioner Brady recused himself from the matter. The proceedings were recorded digitally.
The Commissioners voted, 5-0, to approve the Hearing Officer’s Report as amended.* Commissioner Brady recused himself from the matter. The proceedings were recorded digitally.
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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 Commissioners unanimously voted to approve the Hearing Officer’s Report.
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James Torlai v. Commissioner, State of Connecticut, Department of Emergency Services and Public Protection; and State of Connecticut, Department of Emergency Services and Public Protection |
James Torlai appeared on his own behalf. Assistant Attorney General James Caley appeared on behalf of the respondents. The Commissioners unanimously voted to approve the Hearing Officer’s Report. The proceedings were recorded digitally.
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Bradshaw Smith v. Darlene Klase, Paul Panos and Christina Santos, as members, Executive Committee, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools |
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
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Mike Brodinsky v. Vincent Cervoni, Chairman, Town Council, Town of Wallingford; Town Council, Town of Wallingford; and Town of Wallingford |
The Commissioners voted, 5-0, to approve the Hearing Officer’s Report. Commissioner Hankins recused himself from this matter.
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Board of Finance, Town of Morris v. Treasurer, Town of Morris; and Town of Morris |
Ed Dorsett appeared on behalf of the complainant. Attorney Kenneth Slater appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s
Report. The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Report. The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
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Board of Finance, Town of Morris v. First Selectman, Town of Morris; and Town of Morris |
Ed Dorsett appeared on behalf of the complainant. Attorney Kenneth Slater appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s
Report. The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
Report. The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.* The proceedings were recorded digitally.
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Jimmie Griffin v. Board of Aldermen, City of Waterbury; and City of Waterbury |
Jimmie Griffin appeared on his own behalf. Attorney Kevin Daly appeared on behalf of the respondents. The Commissioners voted, 5-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
Mary E. Schwind informed the Commissioners that no action would be required in:
David Godbout v. Joan Hartley, Member, State of Connecticut, State Senate; State of Connecticut, State Senate; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-727; David Godbout v. Martin Looney, Member, State of Connecticut, State Senate; and State of Connecticut, State Senate; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-728; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-729; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-730; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-731; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-732; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-733; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-734; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-735; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-736; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Ed Meyer, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-737; David Godbout v. Tony Hwang and Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-738; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-739; David Godbout v. Tony Hwang, Matthew Lesser, Micheal McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-740; David Godbout v. Tony Hwang and Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-742; David Godbout v. Janice Geifler, Tony Hwang, Steven Witkos, Catherine Osten, Anthony Guglielmo, Lezlye Zupkus, Dave Yaccarino, Penny Bacchiocci, Anthony D'Amelio, Brenda Kupchick, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-748; David Godbout v. Tony Hwang, Ed Meyer, Michael McLachlan, Matthew Less, Anthony Musto, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-749; David Godbout v. Bill Aman, Larry Cafero, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-750; David Godbout v. Bob Sampson, Kevin Kelly, Tony Hwang, Dave Yaccarino, Mike Alberts, Fred Camillo, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-751; David Godbout v. Tony Hwang, Matthew Lesser, Ed Jutila, Anthony Musto, Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-752; David Godbout v. Liz Vitullo, Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut; and Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut, Docket # FIC 2014-756. Attorney Schwind reported that the complaints had been formally withdrawn earlier in the week. The proceedings were recorded digitally.
David Godbout v. Joan Hartley, Member, State of Connecticut, State Senate; State of Connecticut, State Senate; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-727; David Godbout v. Martin Looney, Member, State of Connecticut, State Senate; and State of Connecticut, State Senate; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-728; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-729; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-730; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-731; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-732; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-733; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-734; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-735; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-736; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Ed Meyer, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-737; David Godbout v. Tony Hwang and Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-738; David Godbout v. Tony Hwang, Matthew Lesser, Michael McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-739; David Godbout v. Tony Hwang, Matthew Lesser, Micheal McLachlan, Anthony Musto, Ed Jutila, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-740; David Godbout v. Tony Hwang and Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-742; David Godbout v. Janice Geifler, Tony Hwang, Steven Witkos, Catherine Osten, Anthony Guglielmo, Lezlye Zupkus, Dave Yaccarino, Penny Bacchiocci, Anthony D'Amelio, Brenda Kupchick, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-748; David Godbout v. Tony Hwang, Ed Meyer, Michael McLachlan, Matthew Less, Anthony Musto, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-749; David Godbout v. Bill Aman, Larry Cafero, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-750; David Godbout v. Bob Sampson, Kevin Kelly, Tony Hwang, Dave Yaccarino, Mike Alberts, Fred Camillo, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-751; David Godbout v. Tony Hwang, Matthew Lesser, Ed Jutila, Anthony Musto, Michael McLachlan, Members, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2014-752; David Godbout v. Liz Vitullo, Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut; and Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut, Docket # FIC 2014-756. Attorney Schwind reported that the complaints had been formally withdrawn earlier in the week. The proceedings were recorded digitally.
The meeting was adjourned at 4:38 p.m.
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Thomas A. Hennick
MINREGmeeting 08262015/tah/08272015
AMENDMENTS
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David Desroches v. Chairman, Board of Education, Darien Public Schools; and Board of Education, Darien Public Schools |
The Hearing Officer’s Report is amended as follows:
17. SECTION §1-210(B)(10), G.S., PROVIDES IN RELEVANT PART THAT NOTHING IN THE FOI ACT SHALL REQUIRE THE DISCLOSURE OF “…COMMUNICATIONS PRIVILEGED BY THE ATTORNEY-CLIENT RELATIONSHIP…”
Paragraphs 17-33 are renumbered and become paragraphs 18-34.
35. IT IS FOUND, AFTER CAREFUL REVIEW, THAT IN CAMERA RECORDS 2014-620-097 LINES 1 THROUGH 36 ARE EMAIL EXCHANGES THAT WERE INTENDED TO BE CONFIDENTIAL COMMUNICATIONS ONLY BETWEEN THE RESPONDENTS AND THEIR ATTORNEY AND THEREFORE FALL OUTSIDE OF THE SCOPE OF THE COMPLAINANT’S REQUEST AND ARE NOT RESPONSIVE.
36. NOTWITHSTANDING THE FINDING IN PARAGRAPH 35, ABOVE, IT IS ALSO FOUND THAT LINE 35 OF IN CAMERA RECORD 2014-620-097 AND IN CAMERA RECORDS 2014-620-094 AND 2014-620-105 INCLUDES ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS AND ARE PERMISSIBLY EXEMPT FROM DISCLOSURE PURSUANT TO §1-210(b)(10), G.S., BECAUSE THEY CONTAIN A REQUEST FOR LEGAL ADVICE.
37. [34] It is found that the REMAINING in camera records are email exchanges that were intended to be confidential communications between the respondents’ attorneys, the respondents, and MJC.
38. [35] It is found, after careful review, OF THE REMAINING IN CAMERA RECORDS that there is no showing in ANY OF THOSE RECORDS that there is a nexus sufficiently close to the provision or receipt of legal advice. It is found rather that MJC provided standard public relations advice for which there was no evidence that such advice impacted the legal strategy or legal advice of Shipman and Goodwin attorneys to the respondents with respect to the State’s investigation of the alleged violations of the IDEA or its ultimate findings. It is found, rather, that MJC’s involvement, as far as the in camera records are concerned, was directly related to helping the attorneys advise the respondents on creating an environment of trust between the school officials and the parents which is not legal advice even in light of the respondents’ contention that such trust would help avoid future complaints to the State Department of Education.
39. [36] It is also found that, although the work performed by MJC as shown in many of the in camera records, was significantly more limited, it was consistent with, rather than materially different than, the work the firm performs ordinarily for their other clients. It is found that the records “appear on their face to be routine suggestions from a public relations firm as to how to put the ‘spin’ most favorable to” the respondents. Calvin Klein, id. at 54.
40. [37] It is further found that MJC did not perform the interpretive or “translator” function wherein its advice enabled the attorneys at Shipman and Goodwin to “understand aspects of the [respondents’] own communication that could not otherwise be appreciated in the rendering of legal advice.” Calvin Klein, id. at 54. It is found, rather, that MJC provided general media strategy advice aimed at improving the public image and reputation of the respondents. Calvin Klein, id. at 54.
41. [38] Therefore, based on the findings in paragraphs 34 through [37] 40, above, it is concluded that WITH THE EXCEPTION OF THOSE RECORDS DESCRIBED IN PARAGRAPH 35 AND 36, ABOVE, the in camera records are not privileged attorney-client communications within the meaning of §1-210(b)(10), G.S., and therefore it is also concluded that they are not exempt from mandatory disclosure under that provision.
42. [39] Consequently, it is concluded that the respondents violated §1-210(a), G.S., by failing to provide the complainant with a copy of the in camera records EXCEPT THOSE DESCRIBED IN PARAGRAPHS 35 AND 36, ABOVE.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondents shall provide the complainant with a copy of the in camera records described in paragraph 14 of the findings, above.
2. IN COMPLYING WITH THE ORDER IN PARAGRAPH 1, ABOVE, THE RESPONDENTS MAY WITHHOLD IN CAMERA RECORD 2014-620-097 LINES 1 THROUGH 36, AND IN CAMERA RECORDS 2014-620-094 AND 2014-620-105.
3. [2] Henceforth, the respondents shall strictly comply with the disclosure provisions of §§1-210(a) and 1-212(a), G.S.
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Board of Finance, Town of Morris v. Treasurer, Town of Morris; and Town of Morris |
10. FORMERLY, §1-21j-12(h) of the Regulations of Connecticut State Agencies DID use a boarder definition of the term “person” which [includes] INCLUDED “any governmental subdivision.” However, the narrower definition of the term “person” within the FOI Act is the controlling definition. See Rose v. Freedom of Information Act Commission, 221 Conn. 217, 228 (fn15) (1992).
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Board of Finance, Town of Morris v. First Selectman, Town of Morris; and Town of Morris |
6. The complainant contended in its objection that notwithstanding the respondents’ Arguments to the contrary, it is a “person” under the FOI Act and therefore, the FOI COMMISSION HAS SUBJECT MATTER JURISDICTION OVER THE COMPLAINT AND THE MATTER SHOULD BE HEARD.
[ 7. Commission has subject matter jurisdiction over the complaint and the matter should be heard.]
7. With respect to the complainant board’s allegation described in paragraph 2, above, §1-210(a), G.S., provides in relevant part that:
“…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….” (emphasis added)
8. Section 1-206(b)(1), G.S., provides in relevant part:
“Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission….” (emphasis added)
9. The FOI Act provides at §1-200(4), G.S., that “person” means natural person, partnership, corporation, limited liability company, association or society.
10. FORMERLY, §1-21j-12(h) of the Regulations of Connecticut State Agencies DID use a boarder definition of the term “person” which [includes] INCLUDED “any governmental subdivision.” However, the narrower definition of the term “person” within the FOI Act is the controlling definition. See Rose v. Freedom of Information Act Commission, 221 Conn. 217, 228 (fn15) (1992).
11. It is concluded that the FOI Act confers the right to take an appeal from the denial of the right to inspect or copy records under §1-210, G.S., only to a “person” as defined in §1-200(4), G.S.
12. It is found that the complainant board is not a person within the meaning of §1-200(4), G.S.
13. With respect to the complainant board’s allegation in paragraph 2, above, it is concluded, after examining the notice of appeal and construing all allegations most favorably to the complainant that the respondents have not violated the FOI Act because the complainant board’s allegation does not constitute a denial of any right conferred by the FOI Act. The respondents’ motion to dismiss is therefore granted.