TO: Freedom of Information Commission
FROM: Mary E. Schwind
RE: Minutes of the Commission’s regular meeting of August 10, 2016
DATE: August 12, 2016
A regular meeting of the Freedom of Information Commission was held on August 10, 2016, 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 Jonathan Einhorn
Commissioner Christopher P. Hankins
Commissioner Michael C. Daly
Commissioner Lenny T. Winkler
Commissioner Ryan P. Barry
Also present were staff members, Colleen M. Murphy, Kathleen K. Ross, Tracie C. Brown, Valicia D. Harmon, Paula S. Pearlman, Victor R. Perpetua, and Mary E. Schwind.
The Commissioners voted 5-0 to approve the minutes of the Commission’s regular meeting of July 27, 2016 (Commissioners Daly and Winkler 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.
Docket #FIC 2015-560 Derek Czenczelewski, Terry Parker and the Bristol Republican Town
Committee v. Ellen Zoppo-Sassu, Memorial Boulevard Task Force,
Town of Bristol; and Memorial Boulevard Task Force, Town of Bristol.
Terry Parker and Jeff Caggiano appeared on behalf of the complainants.
Attorney Jonathan Chappell appeared on behalf of the respondents.
The Commissioners unanimously voted to approve the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2015-640 Susan McCall v. William Brennan, First Selectman, Town of Wilton;
Bruce Hampson, Chairman, Miller-Driscoll Building Committee; Karen
Birck, Chair, Miller-Driscoll Building Committee; Kevin Smith,
Superintendent of Schools, Wilton Public Schools; Wilton Public
Schools; and Town of Wilton
The Commission took no action; this matter will be considered at a subsequent meeting.
Docket #FIC 2015-732 Torrey Townsend v. Superintendent of Schools, New Haven Public
Schools; and New Haven Public Schools.
The Commissioners unanimously voted to amend the Hearing Officer’s Report.* The Commissioners then unanimously voted to adopt the Hearing Officer’s Report as amended.
Docket #FIC 2015-806 John Barney v. Town Clerk, Town of Bloomfield; and Town of
Bloomfield
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Docket #FIC 2015-847 Friends of Ryan Park, Inc. v. Chairman, Second Taxing District of
Norwalk; and Second Taxing District of Norwalk Attorney Kara Murphy
appeared on behalf of the respondents.
The Commissioners unanimously voted to amend the Hearing Officer’s Report.* The Commissioners then unanimously voted to adopt the Hearing Officer’s Report as amended.
Docket #FIC 2015-855 Noelle Bates v. Director , Personnel Department, City of Bristol;
Personnel Department, City of Bristol; and City of Bristol. Attorney
Daniel Murphy appeared on behalf of the respondents.
The Commissioners unanimously voted to table the matter.
Docket #FIC 2016-0001 Herbert Mitchell v. Commissioner, State of Connecticut, Department of
Veteran Affairs; and State of Connecticut, Department of Veteran
Affairs.
The Commissioners unanimously adopted the Hearing Officer’s Report.
Docket #FIC 2016-0022 Mary Hardy v. President, State of Connecticut, Manchester Community
College; and State of Connecticut, Manchester Community College.
The Commissioners voted 6-0 to approve the Hearing Officer’s Report (Commissioner Barry
recused himself from participating in this matter).
Docket #FIC 2016-0030 Chris Ehlert v. First Selectman, Town of Westbrook; Board of
Selectmen, Town of Westbrook; and Town of Westbrook.
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Docket #FIC 2016-0036 Louise Czar v. Edward Brown, President, Bantam Fire Company; and
Bantam Fire Company
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Docket #FIC 2016-0135 Louise Czar v. Edward Brown, President, Bantam Fire Company; and
Bantam Fire Company
The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Docket #FIC 2016-0099 John Matava v. Building Department, Town of Vernon; and Town of
Vernon
The complainant appeared on his own behalf. Attorney Louis
Spadaccini appeared on behalf of the respondents.
The Commissioners unanimously voted to reopen this matter for a hearing.
Colleen M. Murphy informed commissioners that no action would be needed in the
following matters, as all had been withdrawn on the morning of the meeting day, August 10, 2016: Docket #FIC2015-603; David Godbout v. Michael Foley, Chair, East Lyme Board of Assessment Appeals, Town of East Lyme; and East Lyme Board of Assessment Appeals, Town of East Lyme; Docket #FIC2015-660; David Godbout v. Michael Foley, Chair, East Lyme Board of Assessment Appeals, Town of East Lyme; and East Lyme Board of Assessment Appeals, Town of East Lyme; Docket #FIC2015-677; David Godbout v. Michael Foley, Chairman, East Lyme Board of Assessment Appeals, Town of East Lyme; East Lyme Board of Assessment Appeals, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-678; David Godbout v. Chief, Police Department, Town of East Lyme; Police Department, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-853; David Godbout v. Chief, Police Department, Town of East Lyme; Police Department, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-680; David Godbout v. First Selectman, Town of East Lyme; Board of Selectmen, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-716; David Godbout v. Mark Nickerson, First Selectman, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-852; David Godbout v. First Selectman, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-681; David Godbout v. Registrar of Voters, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-731; David Godbout v. Chair, Water and Sewer Commission, Town of East Lyme; Water and Sewer Commission, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-792; David Godbout v. Chair, Aquifer Protection Agency, Town of East Lyme; Acquifer Protection Agency, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-842; David Godbout v. Assessor, Town of East Lyme; and Town of East Lyme; Docket #FIC2015-682; David Godbout v. Colleen Murphy, Executive Director, Freedom of Information Commission, State of Connecticut, Office of Governmental Accountability; and Freedom of Information Commission, State of Connecticut, Office of Governmental Accountability; Docket #FIC2015-683; David Godbout v. Colleen Murphy, Executive Director, Freedom of Information Commission, State of Connecticut, Office of Governemental Accountability; and Freedom of Information Commission, State of Connecticut, Office of Governmental Accountability; and Docket #FIC2015-730; David Godbout v. Director, Department of Public Works and Engineering, City of New London; Department of Public Works and Engineering, City of New London; and City of New London. The proceedings were recorded digitally.
Victor Perpetua reported on pending appeals.
Colleen Murphy provided a follow-up to her report from the July 27, 2016 meeting
regarding the Office of Policy & Management’s holdback of funds for FY 17. She indicated the OPM had responded to the letter sent by the FOIC, Office of State Ethics and the SEEC, stating that it disagreed with the three agencies’ interpretation of their statutory budgetary autonomy. Murphy advised that she would come back to the Commission if necessary, seeking authorization to request an Opinion on the issue from the Attorney General, or to take any other action to resolve the matter.
The meeting was adjourned at 2:43 P.M.
______________
Mary E. Schwind
MINREGmeeting 081016/mes/08122016
* * See attached for Amendments
AMENDMENTS
Docket #FIC 2015-732 Torrey Townsend v. Superintendent of Schools, New Haven Public
Schools; and New Haven Public Schools
The Hearing Officer’s Report is amended to correctly number and reference the paragraphs, as follows:
3[6]. It is found that the complainant made an October 22, 2015 request to the respondents for the following information:
a. a list of all Board of Education members for the past 20 years;
b. all changes to the scoring system for students in the city of New Haven for the past 20 years;
c. the names of all Board members who voted on changes and current standards to the scoring system;
d. the meaning of the letter “P” on a student transcript.
4[7]. It is found that the complainant was seeking to understand the transcripts of her children, who were students in the New Haven Public Schools.
5[8]. It is found that the complainant went to the offices of the Board of Education to get the answers to her questions, that the staff of the respondents were unable to satisfactorily answer the complainant’s questions, and the staff told her to put her questions in writing.
6[9]. It is found that the complainant reduced her questions to writing in her October 22, 2015 request, described above in paragraph 3[6], but that respondents did not timely reply to the complainant’s October 22, 2015 request for information.
7[10]. It is found that the respondents in fact did not reply to the complainant until a Notice of Hearing and Order to Show Cause was issued by this Commission six months later and forwarded by the respondents to their attorney.
8[11]. It is found that the respondent’s attorney sent the complainant an email on May 10, 2016, explaining that the respondents did not maintain a list of its members for the past 20 years, but further explaining that the complainant could ascertain the answer to her question by reviewing the minutes of the Board’s meeting. The attorney provided a contact and phone number so that the complainant could arrange for a convenient time to review those minutes.
9[12]. It is found that the May 10, 2016 email also explained that the answer to the complainant’s questions about changes to the scoring system for the past 20 years, and the names of all Board members who voted on such changes could be ascertained from the minutes of the Board’s Curriculum Committee. The attorney explained that once the complainant reviewed those minutes, the respondents would be happy to expedite any request for copies of particular minutes.
10[12]. It is found that the May 10, 2016 email additionally explained that a passing score for any New Haven Public School class was 60.
11[13]. It is found that the May 10, 2016 email asked the complainant to indicate which school or schools her child or children attended, and that the respondents would put the principal of that school in touch with her to resolve any unanswered questions.
12[14]. Additionally, it is found that the respondents’ attorney sent another email on May 12, 2016, attaching an electronic copy of the Student Parent Handbook, which contained an explanation of a passing score. The May 12 email suggested that the FOI Commission was “not usually the best forum in which to settle academic issues involving public schools issues,” and asked the complainant to consider getting in touch with either the Superintendent’s office or her child’s school.
13[15]. It is found, however, that the complainant had in fact begun her inquiry at the respondents’ offices some six months earlier, been told to put her request in writing, and then received no response.
14[16]. 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.
15[17]. 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, (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.
16[18]. Section 1-212(a), G.S., provides in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
17[19]. The respondents contend that the lack of any response to the complainant’s request was due to a vacancy in the office of the communications director for essentially the entire 2015-2016 school year.
18[20]. The Commission observes that the respondents’ FOI Act obligations cannot be entirely suspended for a school year based on staffing vacancies.
19[21]. However, it is also found that the complainant’s requests were either questions that could only be answered after doing research, or for a list that did not exist.
20[22]. It is well settled that the FOI Act does not require that a public agency respond to questions that can only be answered after doing research, or to create lists.
21[23]. It is therefore concluded that, despite the failure of the respondents to timely reply to the complainant’s requests for information, the respondents did not violate the FOI Act by failing to timely answer her questions.
Docket #FIC 2015-847 Friends of Ryan Park, Inc. v. Chairman, Second Taxing District of
Norwalk; and Second Taxing District of Norwalk
Paragraph 9 of the Hearing Officer’s Report, and its footnote, are amended as follows:
9. It is found, based upon the credible testimony of the respondents’ witnesses, that the respondents, as a rule, do not create minutes detailing the substantive discussions that occur during their executive sessions, and did not create such detailed minutes of the executive sessions held during their JULY 21[November 8], 2015 and September 16, 2014 meetings. It is found, therefore, that such minutes do not exist.
2 The respondents did, however, create minutes of their JULY 21[November 8], 2015 and September 14, 2014 regular meetings, which minutes reflect that the respondents voted to go into and come out of executive session during each of these meetings. The complainant did not allege that the respondents failed to comply with §1-231(a), G.S., with respect to such minutes or executive sessions.