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 October 28, 2015
DATE: October 29, 2015
     A regular meeting of the Freedom of Information Commission was held on October 28, 2015, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:15 p.m. with the following Commissioners present:
     Commissioner Owen P. Eagan, presiding
     Commissioner Matthew Streeter
     Commissioner Christopher P. Hankins
     Commissioner Lenny T. Winkler
     Commissioner Ryan Barry
     Also present were staff members, Colleen M. Murphy, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, Tracie C. Brown, Valicia D. Harmon, Paula Pearlman, Cindy Cannata, and Mary E. Schwind.
     The Commissioners voted, 4-0, to approve the minutes of the Commission’s regular meeting of October 14, 2015.  Commissioner Barry abstained.
     Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so upon request.
Kacey Lewis v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
                               
     Kacey Lewis participated via speakerphone.  Attorney James Neil appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.  The proceedings were recorded digitally.
 Docket #FIC 2014-879
 Cheryl Eberg v. Human Resources Manager, State of Connecticut, Military Department; Adjunct General, State of Connecticut, Military Department; and State of Connecticut, Military Department
     Attorney Michael Wishnie and John Giammatteo appeared on behalf of the complainant. Assistant Attorney General Stephen Sarnoski appeared on behalf of the respondents.   The Commissioners unanimously voted to amend the report.*  After argument from the parties, the Commissioners unanimously voted to table the matter until the next regular meeting on November 18, 2015, and the parties were informed that they could file additional briefs on the amendments by November 9, 2015.   The proceedings were recorded digitally.
James Brislin v. Colleen Ann Reidy, Chairman, Thompsonville Fire District, Board of Commissioners; and Thompsonville Fire District, Board of Commissioners
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Ronald Eleveld, Michela Fissel, Darlene Klase, Leonard Lockart, Richard O'Reilly, Paul Panos, Melissa Rizzo Holmes, Christina Santos, Kenneth Williams, as members, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools
     Bradshaw Smith appeared on his own behalf.  Attorney Anthony Shannon appeared on behalf of the respondents.    The Commissioners voted 4-0 to amend the Hearing Officer’s Report.  The Commissioners voted 4-0 to approve the Hearing Officer’s Report as amended.*  Commissioner Hankins recused himself from the matter.  The proceedings were recorded digitally.
Kathryn Ladd and Catherine Oemcke v. Administrator, State of Connecticut, Teachers' Retirement Board; and State of Connecticut, Teachers' Retirement Board
     Kathryn Ladd appeared on behalf of the complainants.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.  The proceedings were recorded digitally.
Michael Aronow v. Freedom of Information Officer, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
     Michael Aronow appeared on his own behalf.  Assistant Attorney General Jeffrey Blumenthal appeared on behalf of the respondents.   The Commissioners unanimously voted to approve the Hearing Officer’s Report as corrected.*  The proceedings were recorded digitally.
Robert S. Walsh v. Mayor, City of Bridgeport; Tax Collector, City of Bridgeport; Richard Dejesus, as member, City Council, City of Bridgeport; and City of Bridgeport
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Maura Mastrony v. Chief, Police Department, City of Bridgeport; Police Department, City of Bridgeport; and City of Bridgeport
     Maura Mastrony appeared on her own behalf.  Attorney Arthur Laske appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.  The proceedings were recorded digitally.
Anthony D'Angelo v. Chairman, Lake Zoar Authority; and Lake Zoar Authority
     Anthony D’Angelo appeared on his own behalf.   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.
Lisa Labella v. Board of Education, Town of Trumbull; and Town of Trumbull
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.   The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.*
Lisa Labella v. Chairman, Board of Education, Trumbull Public Schools; and Board of Education, Trumbull Public Schools
     The Commissioners unanimously voted to amend the Hearing Officer’s Report.   The Commissioners unanimously voted to approve the Hearing Officer’s Report as amended.*
James Quattro v. Town Clerk, Town of East Hartford; and Town of East Hartford
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Joseph J. Bango and Connecticut Kids First v. Superintendent of Schools, Cheshire Public Schools; and Cheshire Public Schools
     Joseph Bango appeared on his own behalf.   Attorney Rebecca Goldberg appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.   The proceedings were recorded digitally.
Frederick Martin v. Director, Planning and Zoning Department, Town of Monroe; First Selectman, Town of Monroe; and Town of Monroe
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Robert Cushman v. Records Supervisor, State of Connecticut, Department of Emergency Services and Public Protection, Division of Scientific Services; and State of Connecticut, Department of Emergency Services and Public Protection, Division of Scientific Services
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.

     The Commissioners unanimously voted to approve the Executive Director’s Decision Not To Schedule Hearings in the following matters:  Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Darlene Klase, Paul Panos, and Christina Santos, as members, Executive Committee, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools, Docket # FIC 2014-936; Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Darlene Klase, Paul Panos, and Christina Santos, as members, Executive Committee, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools, Docket # FIC 2015-068.; Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Darlene Klase, Paul Panos, Cristina Santos, Members, Executive Committee, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools, Docket # FIC 2015-105; Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Darlene Klase, Paul Panos, Cristina Santos, Members, Executive Committee, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools, Docket # FIC 2015-174; and Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Darlene Klase, Paul Panos, Cristina Santos, Members, Executive Committee, Board of Education, Windsor Public Schools; Board of Education, Windsor Public Schools, Docket # FIC 2015-282.  The proceedings were recorded digitally.

     The Commissioners unanimously voted to approve the Managing Director’s Decision Not To Schedule Hearings in the following matters:   David Godbout v. Chair, Task Force  on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-010;  David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-011;  David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-012; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-013; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-014; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-015; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-016; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-017; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-018; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-019; David Godbout v. Chair, Task Force on Victim Privacy, Connecticut General Assembly; and Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-020; David Godbout v. Chair, State of Connecticut, Task Force on Victim Privacy, Connecticut General Assembly; and State of Connecticut, Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-623; and David Godbout v. Chair, State of Connecticut, Task Force on Victim Privacy, Connecticut General Assembly; and State of Connecticut, Task Force on Victim Privacy, Connecticut General Assembly, Docket # FIC 2015-624.  The proceedings were recorded digitally.
     Colleen M. Murphy and Commissioner Streeter reported on the dinner held on October 22, 2015 to celebrate the 40th Anniversary of the Freedom of Information Act.
     The meeting was adjourned at 5:35 p.m.

______________
Mary E. Schwind
MINREGmeeting 10282015/mes/10292015
 *   See attached for Amendments and Correction

AMENDMENTS AND CORRECTIONS

 Docket #FIC 2014-879
 Cheryl Eberg v. Human Resources Manager, State of Connecticut, Military Department; Adjunct General, State of Connecticut, Military Department; and State of Connecticut, Military Department
     Paragraph 22 is amended as follows:
     22.  Based especially on the findings at paragraphs 9 and 10, above, it is concluded that the complainant, Col. William Adams, and Major Timothy Krusko were ordered into federal service at all times relevant to this complaint, and that the Connecticut FOIA is not applicable to their personnel records which are maintained exclusively as federal records. Despite the fact that the Governor remains the Commander in Chief, federal law controls during Title 32 service. 32 U.S.C. §105(a)(5) (“Army National Guard records are being kept in accordance with this title.”); [32 U.S.C. 105, 112(b)(1).  Nelson v. Geringer, 295 F.3d 1082 (10th Cir. 2002).]  32 U.S.C. §108 (“A STATE [THAT] FAILS TO COMPLY WITH A REQUIREMENT OF THIS TITLE OR A REGULATION…IS BARRED …FROM RECEIVING MONEY…”); AND 32 U.S.C. §110 (“THE PRESIDENT SHALL PRESCRIBE REGULATIONS, AND ISSUE ORDERS, NECESSARY TO ORGANIZE, DISCIPLINE AND GOVERN THE NATIONAL GUARD.”) SEE ALSO NELSON V. GERINGER, 295 F.3D 1082, 1087 (10TH CIR. 2002) (“NATIONAL GUARD REMAINS A FEDERAL ENTITY EVEN WHEN IT IS NOT IN ACTIVE FEDERAL SERVICE” CITING FEDERAL TRAINING REQUIREMENTS AND LOSS OF FEDERAL FUNDING IF FEDERAL REQUIREMENTS ARE NOT MET).  Army regulations control how National Guard personnel records are stored and accessed.

     A new paragraph 24 is added as follows:
     24.  THE CONCLUSIONS OF PARAGRAPHS 22 AND 23 ARE SUPPORTED BY ADDITIONAL FEDERAL AND STATE LAW.  THE ARMY PRIVACY ACT PROGRAM APPEARS TO PROHIBIT DISCLOSING PERSONAL INFORMATION TO THIRD PARTIES WITHOUT THE CONSENT OF THE SUBJECT OF THE RECORD EXCEPT WHEN THE FEDERAL FOIA REQUIRES RELEASE AND IN TWELVE OTHER LIMITED CIRCUMSTANCES NOT HERE RELEVANT.  32 C.F.R. 505.7; APPENDIX D TO PART 505. AND IN MICHIGAN COUNCIL OF TROUT UNLIMITED V. DEPARTMENT OF MILITARY AFFAIRS, 213 MICH APP. 203, 218 (1995), THE COURT FOUND THAT THE STATE COURT HAD JURISDICTION TO APPLY THE STATE FOIA LAW, BUT BASED UPON THE APPARENT AGREEMENT OF THE PARTIES THAT THE REQUESTED RECORDS WERE SUBJECT TO FEDERAL REGULATIONS PROHIBITING THEIR DISCLOSURE WITHOUT FEDERAL APPROVAL, UPHELD THE DENIAL BY THE TRIAL COURT OF THE PLAINTIFF’S DEMAND FOR PRODUCTION OF THE DOCUMENTS.
     The original paragraphs 24-28 are renumbered as Paragraphs 25-29.
Bradshaw Smith v. Craig Cook, Superintendent of Schools, Windsor Public Schools; Ronald Eleveld, Michela Fissel, Darlene Klase, Leonard Lockart, Richard O'Reilly, Paul Panos, Melissa Rizzo Holmes, Christina Santos, Kenneth Williams, as members, Board of Education, Windsor Public Schools; and Board of Education, Windsor Public Schools
     The Hearing Officer’s Report is amended by adding a second order as follows:
     2.  WITHIN 30 DAYS OF THE NOTICE OF FINAL DECISION IN THIS MATTER, THE RESPONDENTS SHALL CONTACT THE COMMISSION TO ARRANGE FOR A MEMBER OF THE COMMISSION STAFF TO CONDUCT TRAINING ON THE PROVISIONS OF THE FOI ACT.
Michael Aronow v. Freedom of Information Officer, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
     Paragraph 17 of the Hearing Officer’s Report is corrected as follows:
     17.   It is found that the estimate of 824,500 pages did not take into account the narrower request described in paragraphs 10 and 11, above.  It is found that the respondents and complainant did not discuss narrowing the request in this matter; at the hearing, however, the complainant stated that he intended the search be confined to the terms suggested as the parties discussed in December [2014] 2013 concerning the identical August 2013 request.
Anthony D'Angelo v. Chairman, Lake Zoar Authority; and Lake Zoar Authority
     Paragraph 1 of the order of the Hearing Officer’s Report is amended as follows:
     1.   If they have not done so, the respondents shall, as similarly ordered by the Commission in Docket #FIC 2005-054, (a) designate a place as its “regular office or place of business,” and specify regular hours when such office or place of business is open to the public, or (b) keep the LZA’s records in the office of the clerk of EACH OF THE FOUR TOWNS IDENTIFIED IN PARAGRAPH 10 OF THE FINDINGS, ABOVE. [the political subdivision in which the LZA is located.]  The respondents shall provide notice to the complainant and the Commission of their decision, within 30 days of the Commission’s final decision.  If the respondents have already designated a place as its “regular office or place of business” or are maintaining the LZA’s records in the office of the clerk of EACH OF THE FOUR TOWNS IDENTIFIED IN PARAGRAPH 10 OF THE FINDINGS, ABOVE, [the political subdivision in which the LZA is located,] the respondents shall provide notice to the complainant and the Commission, within 30 days of the Commission’s final decision.
Lisa Labella v. Board of Education, Town of Trumbull; and Town of Trumbull
     Paragraph 4 of the Hearing Officer’s Report is amended as follows:
     4.  With respect to the complainant’s allegation described in paragraph 2.b, above, the respondent conceded at the hearing in this matter, and it is found, that citing “personnel” as a reason to convene in executive session fails to give the public sufficient information to determine the nature of the business to be transacted.  IT IS CONCLUDED THAT THE RESPONDENTS VIOLATED §1-225(c), G.S. 1
1
SECTION 1-225(c), G.S., PROVIDES IN RELEVANT PART: "THE AGENDA OF THE REGULAR MEETINGS OF EVERY PUBLIC AGENCY…SHALL BE AVAILABLE TO THE PUBLIC AND SHALL BE FILED, NOT LESS THAN TWENTY-FOUR HOURS BEFORE THE MEETINGS TO WHICH THEY REFER, IN SUCH AGENCY'S REGULAR OFFICE OR PLACE OF BUSINESS…"
Lisa Labella v. Chairman, Board of Education, Trumbull Public Schools; and Board of Education, Trumbull Public Schools
     Paragraph 14 of the Hearing Officer’s Report is amended as follows:
     14.   ALTHOUGH THE ISSUE OF SUFFICIENT NOTICE WAS NOT CLEARLY RAISED IN THIS MATTER, [T]the Commission observes that a more detailed explanation in the agenda about the subject of the privileged written communication would have provided to the public better information concerning the nature of the business transacted in executive session.