In the Matter of a Complaint by		FINAL DECISION
Cheryl Eberg,      Complainant
against		Docket #FIC 2014-879
Human Resources Manager, State of Connecticut, Military Department; Adjutant General, State of Connecticut, Military Department; and State of Connecticut, Military Department,      Respondents		November 18, 2015

     The above-captioned matter was heard as a contested case on August 24 and September 28, 2015, at which times the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  A report of hearing officer dated October 6, 2015 was transmitted to the parties as a proposed final decision.  At the October 28, 2015 meeting of the Commission, an amendment offered by the hearing officer was adopted, resulting in this revised report of the hearing officer. 

     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 November 19, 2014 to the FOIA Manager of the Connecticut Army National Guard, (“CTARNG”) the complainant requested eight categories of records (the “requested records”).  Five record requests expressly related to complaints of sexual assault, sexual harassment, or equal employment opportunity violation, to wit:

A further request was for all records concerning any court martial proceedings involving Colonel William Adams (request 3 of 11/19/2014 letter).  Finally, the last requests were for records concerning the award of the Combat Action Badge and the Bronze Star to the complainant (requests 7 and 8 of 11/19/2014 letter).

     3.  It is found that, by letter dated November 25, 2014, the respondent Human Resources Manager acknowledged the complainant’s request, noting its extensive nature. By additional letter dated December 8, 2014, the respondent Human Resources Manager stated that the State of Connecticut Military Department does not control the records in the possession of the CTARNG and that federal law governs CTARNG records.  The December 8, 2014 letter added that the respondent Military Department had conducted a search of its records and concluded that it does not maintain any records within the scope of the request.

     4.  By letter dated and filed with the Commission on December 5, 2014, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by failing to comply with her November 19, 2014 records request.

     5.  Section 1-200(5), G.S., states: 

     6.  Sections 1-210(a) and 1-212(a), G.S., state, respectively, in relevant parts:

     7.  It is found that the CTARNG is a unit within the State of Connecticut Military Department.  As discussed further below, members of the CTARNG have been subject to a dual enlistment system pursuant to federal law since 1933.  At any given time, individual soldiers can be serving in the National Guard of the United States, subject to federal law (Titles 10 and 32 of the U.S. Code), in the National Guard of Connecticut, subject to state law (Title 27 of the Connecticut General Statutes), or be civilians who are not currently in active military service.  Examples of Title 10 missions include Operation Enduring Freedom and Operation Iraqi Freedom; Title 32 missions include Hurricanes Katrina and Rita as well as Presidential Inauguration Support; and Title 27 missions include Hurricane Sandy Response and Winter Storm Nemo Response.

     8.  It is also found that, at present in Connecticut, there are approximately 5,180 persons in the respondent Military Department, including but not limited to 3,570 civilians, 1,108 federal employees, and 115 state employees.  The state employees are mostly janitors and other maintainers.  The federal employees are, most of the time, regulated by Title 32 of the U.S. Code.  During Title 32 missions, federal law is controlling, the federal government pays for the operations, but the Governor continues to serve as Commander-in-Chief.  

     9.  It is also found that the CTARNG maintains two entirely separate record systems, federal records which are maintained in Hartford by Colonel Witford and state records maintained by the respondent Human Resources Manager, Anthony Lewis.  Colonel Witford maintains his records subject to federal law and supervision by the National Guard Bureau in the U.S. Department of Defense.

     10. Against this general background, it is further found that the respondent Human Resources Manager personally conducted a search of the state personnel files, medical files, automated files and historical files of the respondent Military Department for records concerning the complainant, Colonel William Adams, and Major Timothy Krusko.  None of the three persons has an employee identification number in the CORE personnel system that was established for the entire state government in 2003.  The search included old paper records in the storage room of the respondent Military Department.  It is found that this search did not result in the identification of any records within the scope of the complainant’s request, except that by letter dated May 20, 2014, the complainant was provided with a copy of the certificate awarding her with The Army Commendation Medal.

     11. It is also found that the respondent Human Resources Manager personally conducted an initial search, and again a supplemental search after the August 24, 2015 hearing, of all the complaints of sexual assault, sexual harassment, or equal employment opportunity violation that had been filed with the respondent Military Department from January 1990 to November 2014.  He stated that generally three or four such complaints are filed each year, but that the respondent Military Department does not maintain any complaints against any current or retired CTARNG officers from January 1990 to November 2014 (see paragraph 2.e, above; request 6 of 11/19/2014 letter).  The supplemental search after the August 24, 2015 hearing focused on officers who might have been state employees at some time in the past, even though these officers are now federal employees.

     12. It is also found that the complainant has made a similar, but not identical, request for records, dated April 17, 2014, pursuant to the federal FOIA.  Some redacted records were provided to the complainant pursuant to the federal FOIA.  Nonetheless, an appeal concerning the federal FOIA request was pending in U.S. District Court as of the hearing dates before the Commission.

     13. It is further found that at least some of the requested records were generated when the complainant was in federal service in Iraq.  While the complainant suggested that copies of some requested records may be on file with the CTARNG, it is found that the declaration of Sergeant Christopher Clark, the Chief Legal Noncommissioned Officer of the CTARNG, filed in U.S. District Court, states that, except for The Army Commendation Medal discussed at paragraph 10, above, the CTARNG has no records for the complainant or Colonel Adams.  (The federal FOIA request does not appear to include records relating to Major Timothy Krusko.)  Sergeant Clark’s declaration adds that: “[t]his was an ‘Active-Duty’ complaint, so any… records…would reside with the Active Army.”

     14. It is further found that the U.S. Department of the Army would have conducted any court martial proceedings directed against Colonel William Adams.  The respondent Adjutant General testified that he had no knowledge of any such proceedings.     

     15. Finally, it is found that the complainant issued a subpoena for Colonel William Adams to appear at the Commission’s August 24, 2015 hearing.  At this hearing, the respondents asserted that Colonel Adams had to receive permission to testify pursuant to the Department of the Army’s so-called Touhy regulations.  32 C.F.R. §516, Appendix F. United States ex rel. Touhy v. Ragen United States ex rel. Touhy, 71 S. Ct. 416 (1951).

     16. However, at the September 28, 2015 hearing, the respondents entered into evidence a letter from the Chief, General Litigation Branch, Department of the Army, denying the request for Colonel William Adams to testify at the Commission’s hearing.  His single spaced letter of nearly three pages included a series of assertions and legal citations, detailing:  the ongoing litigation in federal court concerning the federal FOIA request and the disclosures that have been made pursuant to the federal FOIA request; Colonel Adams’ Active Duty mobilization orders from June 20, 2006 to August 11, 2007 under the authority of Title 10 of the U.S. Code; the extensive regulatory authority of the Department of the Army over the CTARNG under the authority of Title 32 of the U.S. Code; the Department of the Army’s maintenance of all records, pursuant to Army regulations, for the CTARNG concerning sexual assault, sexual harassment, equal employment opportunity as well as personnel matters generally; the Department of the Army’s view that Colonel Adams is “DA personnel,” an individual with whom a federal interest is involved; and finally, that the refusal to allow Colonel William Adams to testify at the Commission’s hearing was grounded upon the sovereign immunity of the federal government.

     17. At the hearings, the complainant generally argued that the CTARNG was a state agency and that any records maintained in the files of a state agency, even copies of records originating from federal service, were subject to the jurisdiction of this Commission.  The complainant’s legal team ably cited a variety of law standing for the proposition that members of the CTARNG only serve the federal military when they are formally called into the military service of the United States.  They also cited two earlier, companion FOIC decisions wherein the FOIC ordered disclosure of records of the CTARNG:  Docket #FIC 2000-303, Rempfer v. Cugno (January 10, 2001), and Docket #FIC 2000-304, Dingle v. Cugno (January 10, 2001).  Finally, they argued that Colonel William Adams serves fulltime and cited the complainant’s twenty eight years of service to Connecticut and the United States, particularly as this service contrasted with the lack of redress she has received for the sexual abuse that she alleged.

     18. The respondents countered that the complainant, Colonel William Adams, and Major Timothy Krusko were all federal employees and that the records concerning their employment were federal records.  Since these three individuals never were state employees, the CTARNG as a state agency has no records relating to them, except for the single certificate discussed at paragraph 10, above. Moreover, neither the state nor the federal authorities have the “power to invade the records of the other.” Respondent’s Brief, September 15, 2015, p. 6.   

     19. The history of the federal-state relationship in governing the National Guard originates with the Constitutional Convention in 1787 and its subsequent development mirrors the history of the United States, especially the wartime history.  The contemporary legal standard was set forth in Perpich v. Department of Defense, 496 U.S. 334 (1990) (“Perpich”), where the U.S. Supreme Court stated:

Id. at 345. The Court further stated:

Id. at 347. The Supreme Court continued with a “hat” analogy:

Id. A U.S. Court of Appeals has confirmed:

Clark v. United States, 322 F. 3d 1358, 1366 (2003) (“Clark”). The Court of Appeals added:  

Id. at 1367.

     20. More directly, concerning the Connecticut FOIA, the complainant correctly asserts that Commission did issue orders in 2001 concerning records of the CTARNG. Docket #FIC 2000-303, Rempfer v. Cugno (January 10, 2001), and Docket #FIC 2000-304, Dingle v. Cugno (January 10, 2001).  However, the issue of federal preemption was not raised in those cases, and the respondents testified herein that the respondents in the 2001 cases were not represented by the Attorney General.

     21. Given these findings of fact and statement of relevant law, it is concluded that the CTARNG is a dual status public agency, part state agency and part federal agency.  There is precedent in Connecticut FOIA law for analogous bifurcation of legal entities. Cos Cob Fire Department v FOIC, 212 Conn. 100 (1989); §1-218, G.S., concerning “records and files related to the performance of the governmental function….”  Accordingly, in order to adjudicate requests for specific records maintained by the CTARNG, the status of a specific soldier at a specific time must be determined.  This inquiry follows from the “hat” analogy of the U.S. Supreme Court in Perpich as well as the Clark decision. (See paragraph 19, above).

     22. Based especially on the findings at paragraphs 9 and 10, above, it is concluded that the complainant, Colonel 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. §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).

     23. Based especially on the findings at paragraphs 9 and 11, above, it is also concluded that all records related to complaints of sexual assault, sexual harassment, or equal employment opportunity violation against any current or retired CTARNG officers from January 1990 to November 2014 are also maintained exclusively as federal records, outside the jurisdiction of the Connecticut FOIA.  Again, Army regulations address sexual harassment, sexual assault, and equal opportunity complaints.  Army Regulation 600-20, chapters 6, 7, and 8.  All such information is official information pursuant to federal regulation. 32 C.F.R. Appendix F to Part 516.

     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 or in twelve other limited circumstances not here relevant.  32 C.F.R. 505.7; Appendix D to Part 505.  The Commission also notes the extensive, highly detailed legal system that the U.S. Army has in place for requestors of access to human resource records.  Army Regulation 600-8-104, sections 2-6, 2-7, and 2-11.  This detailed legal system strongly supports federal preemption.  See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S 707 (1985); Farina v. Nokia Inc et al., 625 F.2d 97 (2010).  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.

     25. The Commission acknowledges that the implications for disclosure pursuant to state law following this decision have a different emphasis than some of the language quoted above in both Perpich (“unless and until ordered to active duty in the Army…”) and Clark (“only serve the federal military when they are formally called….”).  But the record of this case shows that the respondent Military Department has, pursuant to federal and state law, created a system where only a small number of mostly janitorial and maintenance personnel are state employees.  (See paragraph 8, above.)

     26. Moreover, the Commission also acknowledges that there is a seemingly purposeful ambiguity in the ever shifting balance between the federal and state roles controlling the National Guard.  The respondents’ own post hearing brief included an organizational flow chart (p. 7) from a National Guard Bureau Briefing, March 30, 2007, which included the words “friction” and “fog” on both sides of an arrow marked “coordination” between the entities reporting to the President and those reporting to the Governor.  It is not surprising that Rudy Perpich, governor of Minnesota, mistakenly thought he could block “his” National Guard members from participating in a training mission in Central America in 1987.  Perpich at 334.

     27. After the caveats of paragraphs 25 and 26, above, are duly acknowledged, however, it remains the case that there are no substantial facts in the record that support a finding or a conclusion of law that the relevant records concerning the complainant, Colonel William Adams, and Major Timothy Krusko, or the relevant records concerning complaints of sexual assault, sexual harassment, or equal employment opportunity violation, are maintained by the CTARNG in its status as a state agency.

     28. It is concluded that the requested records, except for the certificate discussed at paragraph 10, above, are not “public records” within the meaning of §§1-200(5), 1-210(a) and 1-212(a), G.S.

     29. It is finally 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 November 18, 2015.

_______________________
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:

Cheryl Eberg
c/o Michael Wishnie, Esq.
Jerome N. Frank Legal Services Organization
P.O. Box 209090
New Haven, CT  06520

Human Resources Manager, State of Connecticut,
Military Department; Adjutant General,
State of Connecticut, Military Department;
and State of Connecticut, Military Department
c/o Stephen R. Sarnoski, Esq.
Assistant Attorney General
State of Connecticut,
Office of the Attorney General
Public Safety Department
110 Sherman Street
Hartford, CT  06105

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2014-879/FD/cac/11/18/2015