| TO: | Freedom of Information Commission |
| FROM: | Thomas A. Hennick |
| RE: | Minutes of the Commission’s regular meeting of February 24, 2016 |
A regular meeting of the Freedom of Information Commission was held on February 24, 2016, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:07 p.m. with the following Commissioners present:
Commissioner Owen P. Eagan, presiding
Commissioner Jay Shaw (participated via speakerphone)
Commissioner Jonathan J. Einhorn
Commissioner Matthew Streeter
Commissioner Owen P. Eagan, presiding
Commissioner Jay Shaw (participated via speakerphone)
Commissioner Jonathan J. Einhorn
Commissioner Matthew Streeter
Commissioner Christopher P. Hankins
Commissioner Michael C. Daly
Commissioner Lenny T. Winkler
Commissioner Ryan P. Barry
Commissioner Michael C. Daly
Commissioner Lenny T. Winkler
Commissioner Ryan P. Barry
Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Lisa F. Siegel, Tracie C. Brown, Valicia D. Harmon, Paula S. Pearlman, Virginia Brown, Cindy Cannata, and Thomas A. Hennick.
The Commissioners voted unanimously to approve the minutes of the Commission’s regular meeting of February 10, 2016.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
|
John Vivo v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction |
John Vivo participated via speakerphone. Attorney James Neil and Craig Washington
appeared on behalf of the respondents. 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.
appeared on behalf of the respondents. 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.
|
Carlton Jolley v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction |
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
|
Julio Burgos Torres v. Chief, Police Department, City of Waterbury; and Police Department, City of Waterbury |
Julio Burgos Torres participated via speakerphone. Attorney Gary Roosa appeared on behalf of the respondents. The Commissioners unanimously voted to approve the Hearing Officer’s Report. The proceedings were recorded digitally.
|
Ramon Lopez v. Chief, Police Department, City of Bridgeport; and Police Department, City of Bridgeport |
Ramon Lopez participated via speakerphone. Attorney Richard Kascak appeared on behalf of the respondents. The Commissioners unanimously voted to approve the Hearing Officer’s Report. The proceedings were recorded digitally.
|
Adam Osmond v. Catherine Smith, Commissioner, State of Connecticut, Department of Economic and Community Development; and State of Connecticut, Department of Economic and Community Development |
Assistant Attorney General Matthew Budzig appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
|
Alexander Wood, Lauren Quirici, Doreen Guarino and the Manchester Journal Inquirer v. Superintendent of Schools, Stafford Public Schools; and Stafford Public Schools |
The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Hankins recused himself from the matter.
|
Cherlyn Poindexter and the New Haven Management and Professional Union, Local 3144 v. Toni Harp, Mayor, City of New Haven; Kathleen Foster, Assistant Corporation Counsel, City of New Haven; Marcus Paca, Labor Relations Director, City of New Haven; and City of New Haven |
Cherlyn Poindexter appeared on her own behalf. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Torrey Townsend v. Chief, Police Department, City of New Haven; Police Department, City of New Haven; and City of New Haven |
Torrey Townsend appeared on her own behalf. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Torrey Townsend v. Manager of Human Resources and Benefits, Department of Human Resources, City of New Haven; Department of Human Resources, City of New Haven; and City of New Haven |
Torrey Townsend appeared on her own behalf. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Torrey Townsend v. Manager of Human Resources and Benefits, Department of Human Resources, City of New Haven; Department of Human Resources, City of New Haven; and City of New Haven |
Torrey Townsend appeared on her own behalf. Attorney Kathleen Foster appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Robert Barnes v. Edward Edelson, First Selectman, Town of Southbury; Board of Selectmen, Town of Southbury; and Town of Southbury |
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
|
Geoffrey Akers v. Liz Vitullo, Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut |
Geoffrey Akers appeared on his own behalf. Assistant Attorney General Holly Bray appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Geoffrey Akers v. Liz Vitullo, Office of Audit, Compliance and Ethics, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut |
Geoffrey Akers appeared on his own behalf. Assistant Attorney General Holly Bray appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Elizabeth Regan and the Norwich Bulletin 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 approve the Hearing Officer’s Report.
|
Peter Tomalonis v. Eric Osanitsch, Chief, Police Department, Town of Windsor Locks; Police Department, Town of Windsor Locks; and Town of Windsor Locks |
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
|
Matthew Kauffman, Kathleen Megan and the Hartford Courant v. Board of Trustees, State of Connecticut, University of Connecticut; and State of Connecticut, University of Connecticut |
Matthew Kaufman appeared on behalf of the complainants. Assistant Attorney General Holly Bray and Attorney Richard Orr appeared on behalf of the respondents. The Commissioners voted, 7-0, to approve the Hearing Officer’s Report. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
|
Michael Savino and the Manchester Journal Inquirer v. Commissioner, Dianna Wentzell, Department of Education; and State of Connecticut, Department of Education |
Michael Savino appeared on behalf of the complainants. Assistant Attorney General Emily Melendez appeared on behalf of the respondents. The Commissioners voted, 6-0, to approve the Hearing Officer’s Report. The Commissioners voted, 6-0, to reopen the matter. The Commissioners voted, 6-0, to amend the Hearing Officer’s Report. The Commissioners voted, 6-0, to adopt the Hearing Officer’s Report as amended.* The proceedings were recorded digitally. Commissioner Shaw did not participate in this matter. Commissioner Hankins recused himself from this matter.
|
Cynthia Kleist and Derf Kleist v. FOI Administrator,Town of Cheshire; and Town of Cheshire |
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
The Commissioners voted, 7-0, to affirm the Decision Not to Schedule in:
David Godbout v. Chief, State of Connecticut, State Capitol Police; and State of Connecticut, State Capitol Police, Docket # FIC 2015-211. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
The Commissioners voted, 7-0, to affirm the Decision Not to Schedule in:
David Godbout v. Chief, State of Connecticut, State Capitol Police; and State of Connecticut, State Capitol Police, Docket # FIC 2015-211. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
Colleen M. Murphy informed commissioners that no action would be needed in the following matters, as all had been withdrawn the previous day: David Godbout v. Chair, Planning and Development Committee, State of Connecticut General Assembly; and Planning and Development Committee, State of Connecticut General Assembly, Docket # FIC 2015-212; David Godbout v. Chair, Planning and Development Committee, State of Connecticut General Assembly; and Planning and Development Committee, State of Connecticut General Assembly, Docket # FIC 2015-217; David Godbout v. Tony Hwang, Member, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2015-233;. David Godbout v. Ed Jutila, Member, State of Connecticut, Connecticut General Assembly; and State of Connecticut, Connecticut General Assembly, Docket # FIC 2015-267; David Godbout v. Chair, Sandy Hook Advisory Commission; and Sandy Hook Advisory Commission, Docket # FIC 2015-294 and David Godbout v. Kathy Flaherty, Member, Sandy Hook Advisory Commission; and Sandy Hook Advisory Commission, Docket # FIC 2015-299. The proceedings were recorded digitally.
The Commissioners voted, 7-0, to affirm the Decision Not to Schedule in: Bradshaw Smith v. Colleen Murphy, Executive Director, State of Connecticut, Freedom of Information Commission, Office of Governmental Accountability; and State of Connecticut, Freedom of Information Commission, Office of Governmental Accountability, Docket # FIC 2015-252 and Bradshaw Smith v. Ana Cristina Santos, Paul Panos, Darlene Klase and Craig Cooke, as Members, Executive Committee, Board of Education, Town of Windsor; and Board of Education, Town of Windsor, Docket # FIC 2015-741. Commissioner Shaw did not participate in this matter. The proceedings were recorded digitally.
Victor R. Perpetua reported on pending appeals.
Colleen M. Murphy reported on legislation.
The meeting was adjourned at 5:13 p.m.
______________
Thomas A. Hennick
MINREGmeeting 02242016/tah/02252016
AMENDMENTS
|
John Vivo v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction |
The order in the Hearing Officer’s Report is amended as follows:
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. If not already provided, the respondents shall forthwith provide the complainant with a copy of the records that were previously offered to the complainant on December 10, 2015, which records he had previously declined[, free of charge].
2. The respondents shall forthwith conduct a diligent search for the Movement Card. [Within two (2) weeks of the date of the Notice of Final Decision in this matter, the respondents shall provide an affidavit to the complainant stating the steps undertaken to conduct a diligent search for such record and whether the record was located.] If located, the record shall be provided to the complainant, free of charge.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. If not already provided, the respondents shall forthwith provide the complainant with a copy of the records that were previously offered to the complainant on December 10, 2015, which records he had previously declined[, free of charge].
2. The respondents shall forthwith conduct a diligent search for the Movement Card. [Within two (2) weeks of the date of the Notice of Final Decision in this matter, the respondents shall provide an affidavit to the complainant stating the steps undertaken to conduct a diligent search for such record and whether the record was located.] If located, the record shall be provided to the complainant, free of charge.
[3.The complainant is not precluded from making a new request to the respondents for IC-2015-192-13, IC-2015-192-14 and IC-2015-192-15, consistent with the Commission’s decision not to order immediate disclosure, as stated in paragraph 25, above.]
[4.] 3. Henceforth, the respondents shall strictly adhere to the disclosure and promptness
requirements of §§1-210(a) and 1-212(a), G.S.
requirements of §§1-210(a) and 1-212(a), G.S.
|
Adam Osmond v. Catherine Smith, Commissioner, State of Connecticut, Department of Economic and Community Development; and State of Connecticut, Department of Economic and Community Development |
The order in the Hearing Officer’s Report is amended as follows:
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complainant is dismissed.
[2. As no evidence or argument was presented by either party concerning the possibility that some of the requested records may have included employment applications for which there was no minimum earned rating necessary to pass the examination, no examination, and no list of candidates taking the examination that included each applicant’s final earned rating (see paragraph 20, above), no finding, conclusion or order is made with respect to the possibility of such records.]
|
Michael Savino and the Manchester Journal Inquirer v. Commissioner, Dianna Wentzell, Department of Education; and State of Connecticut, Department of Education |
The Hearing Officer’s Report is amended as follows:
5. It is found that, on August 19, 2015, the respondents informed the complainants that the INFORMATION [records], described in paragraph 4, above, WAS [were] exempt from disclosure pursuant to §1-210(b)(1), G.S. By email also dated August 19, 2015, the respondents stated: “We set a high bar regarding accuracy of information that we generate and the public should expect nothing less from us. It is our duty to perform our due diligence before releasing it. We look forward to releasing the results once we have completed our final quality control check. As expected, these results will provide tough feedback on how well we are preparing our students to succeed in college and careers. Most importantly, these scores will serve as the basis for important, constructive conversations that we are eager to begin.”
10. Based upon the plain language of §10-10a, G.S., it is found that the purpose of the state-wide public school information system (“system”) is to establish a standardized electronic data collection and reporting protocol that tracks the performance of individual students on each of the state-wide mastery examinations 1, while maintaining the confidentiality of individual student and staff data. IT IS ALSO FOUND THAT THE PHRASE “SYSTEM DATABASE OF STUDENT INFORMATION,” CONTAINED IN §10-10a(e), G.S., REFERS TO INDIVIDUAL STUDENT INFORMATION.
10. Based upon the plain language of §10-10a, G.S., it is found that the purpose of the state-wide public school information system (“system”) is to establish a standardized electronic data collection and reporting protocol that tracks the performance of individual students on each of the state-wide mastery examinations 1, while maintaining the confidentiality of individual student and staff data. IT IS ALSO FOUND THAT THE PHRASE “SYSTEM DATABASE OF STUDENT INFORMATION,” CONTAINED IN §10-10a(e), G.S., REFERS TO INDIVIDUAL STUDENT INFORMATION.
1
It is found that, although the statute makes reference to "state-wide mastery examinations," the department, beginning in 2015, requires Smarter Balanced Assessment tests, in lieu of such mastery examinations. It is further found that the system collects and tracks individual student test results on the Smarter Balanced Assessment tests.
16. It is found that, on August 19, 2015, the respondents maintained, owned, used, received, retained and/or kept on file a record CONSISTING OF [containing] the aggregate district-wide test results, which record relates to the conduct of the public’s business.2
2
IN THEIR BRIEF, DATED FEBRUARY 11, 2016, THE RESPONDENTS ARGUED THAT THEY NEVER MAINTAINED A "RECORD" CONTAINING THE AGGREGATE DISTRICT-WIDE TEST RESULTS, AND THEREFORE DID NOT SEND SUCH "RECORD" TO THE SUPERINTENDENTS. ACCORDING TO THE RESPONDENTS, BECAUSE THERE WAS NO "RECORD," THEY DID NOT VIOLATE THE ACT BY FAILING TO PROVIDE SUCH TEST RESULTS TO THE COMPLAINANTS.
17. It is concluded that the record CONSISTING OF [containing] the aggregate district-wide test results is a public record, within the meaning of §§1-200(5) and 1-210(a), G.S.
18. Alternatively, the respondents claimed that the record CONSISTING OF [containing] the aggregate district-wide test results was a “preliminary draft,” and therefore was exempt from disclosure pursuant to §1-210(b)(1), G.S., at the time of the request.
22. The department’s chief performance officer (“CPO”) testified that during the time between August 19, 2015, when the request was made, and August 28, 2015, when the aggregate district-wide and aggregate state-wide test results were made public, he and a team of analysts worked to verify the individual student test results (and thereby the aggregate district-wide test results) that were disclosed to the superintendents. According to the CPO, the aggregate district-wide test results were MADE AVAILABLE [sent] to the superintendents on August 19, 2015, with the expectation that the superintendents would review the test results for accuracy. The CPO explained that, in the past, for example, a superintendent who reviewed the “preliminary” test results noticed that typically high achieving students had not scored well on the test, and that the department determined, from this information, that there was a problem with the test itself. He further testified that the department viewed, and continues to view, the superintendents’ participation in reviewing the test results as an important part of the verification process. In addition, the CPO testified that verification of the data was particularly important in 2015, because that was the first year that the Smarter Balanced Assessment tests were given. The CPO further testified that the department determined that the public interest in withholding THE TEST RESULTS [such records] outweighed the public interest in disclosure because if inaccurate test results are made public, a particular perception of the test may result, which perception is difficult to erase once it has been created.
23. In essence, the respondents argued that the record CONSISTING OF [containing] the aggregate district-wide test results was a “preliminary draft,” at the time it was requested because such results had not been verified by the superintendents and the department. However, the Commission does not credit the testimony of the CPO regarding the superintendents’ role in verifying the test scores, in light of the conflicting evidence that the aggregate district-wide test results were MADE AVAILABLE [sent] to the superintendents “as a courtesy” (see paragraph 2, above), and in the absence of any evidence that the deputy commissioner directed, or even requested, that the superintendents verify the data and report any inconsistencies to the department by a particular date. Moreover, the respondents offered no evidence that the superintendents in fact provided any feedback to the department regarding the test results. Even if such test results were unverified, however, such fact alone did not transform the record CONSISTING OF [containing] such results into a “preliminary draft,” as that term has been interpreted by the courts. It is found that the respondents offered no evidence that the record CONSISTING OF [containing] the aggregate district-wide test results reflected a “free and candid exchange of ideas…uninhibited proposition and criticism of options, or that such record contained “data not required or germane to the eventual purpose for which it was undertaken, and which was thereafter modified to excise the material that was irrelevant” to that purpose. Accordingly, it is concluded that the respondents failed to prove that the record CONSISTING OF [containing] the aggregate district-wide test results was a “preliminary draft,” under §1-210(b)(1), G.S., at the time it was requested.
25. Based upon the foregoing, it is concluded that the respondents violated the disclosure requirements in §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the record CONSISTING OF [containing] the aggregate district-wide test results to the complainants at the time it was requested.
26. With regard to the request for the record CONSISTING OF [containing] the aggregate state-wide test results, it is found that, during the time between August 19, 2015 and August 28, 2015, the chief performance officer and his team created the record CONSISTING OF [containing] the aggregate state-wide test results. Accordingly, it is found that such record did not exist at the time it was requested.
25. Based upon the foregoing, it is concluded that the respondents violated the disclosure requirements in §§1-210(a) and 1-212(a), G.S., by failing to provide a copy of the record CONSISTING OF [containing] the aggregate district-wide test results to the complainants at the time it was requested.
26. With regard to the request for the record CONSISTING OF [containing] the aggregate state-wide test results, it is found that, during the time between August 19, 2015 and August 28, 2015, the chief performance officer and his team created the record CONSISTING OF [containing] the aggregate state-wide test results. Accordingly, it is found that such record did not exist at the time it was requested.
27. Accordingly, it is concluded that the respondents did not violate §§1-210(a) or 1-212(a), G.S., with regard to the request for the record CONSISTING OF [containing] the aggregate state-wide test results.