foi proposed final decision rose-secore

8/14/2019 FOI Proposed Final Decision Rose-Secore

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FREEDOM OF INFORMATION COMM ISSIONOF THE STATE OF CONN ECTICUT18-20 Trinity Street Hartford, CT 06106Telephone: (860) 566-5682Toll-free (C T only): (866)374-3617Fax: (860)566-6474

Kevin Brookman,Com plainant(s) Notice of Meetingagainst Docket #FIC 2009-551John Rose, Corporation Counsel,Office of the Corporation Counsel,City of Hartford; and City of Hartford,Respondents) February 23 ,2010

Transmittal of Proposed Final DecisionIn accordance with Section 4-179 of the Connecticut General Statutes, the Freedom ofInformation Commission hereby transmits to you the proposed finding and decision prepared bythe hearing officer in the above-captioned matter.This will notify you that th e Commission will consider this matter fo r disposition at itsmeeting w hich will be held in the Freedom of Information Commission Hearing Room, 18-20Trinity Street, 1st floor, Hartford, Connecticut, at 2 p.m. on Wednesday, April 14, 2010. Atthat time and place you w ill be allowed to offer oral argument concerning this proposed findingand order. Oral argument shall be limited to ten (10) minutes. For good cause shown, however,the Com mission may increase the period of time for argument. A request for additional timemust be made in writing an d should be filed with the Commission ON OR BEFO RE APRIL 2,

2010. Such request MUST BE (1) copied to all parties, or if the parties are represented, tosuch representatives, and (2) includ e a notation indicating such notice to all parties or theirrepresentatives.Although a brief or mem orandum of law is not required, if you decide to submit such adocument, the Commission requests that an original an d twelve (12)copies be filed ON O RBEFORE AP RIL 2, 2010. PLEASE NOTE: Any correspondence,brief or memorandumdirected to the Com missioners by any party or representative of any party MUST BE (1)copied to all parties, or if the parties are represented, to such representatives, (2) include anotation ind icating such notice to all parties or their representatives and (3) be limited toargument. NO NEW EVIDENCE MA Y BE SUBMITTED.If you have already filed a brie fer mem orandum with the hearing officer and wish tohave that document d istributed to each mem ber of the Com mission, it is requested that twelve(12) copies be filed O N O R BEFO RE APRIL 2, 2010, an d that notice be given to all parties orif the parties are represented, to their representatives, that such previously filed documentis being subm itted to the Com missioners for review.

By Order of the Freedom of Information Com mission

W. Paradis, A cting Clerk of the Com missionNotice to: Kevin BrookmanJohn Rose, Jr., Esq.


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FREEDOM OF INFORMATION COMMISSIONOF THE STATE OF CONNECTICUT

In the Matter of a Com plaint by Report of Hearing OfficerKevin Brookman,

Complainantagainst Dock et #FIC 2009-551

John Rose, Corporation Counsel,Office of the Corporation Counsel,City of Hartford; andCity of Hartford,Respondents February 11, 2010

The above-captioned matter was heard as a contested case on December 17,2009,at which time the complainant and the respondents appeared and presented testimony,exhibits and argument on the complaint.After consideration of the entire record, the following facts are found andconclusions 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 email dated September 1,2009, the complainant requestedto review the following:

"Any and all documentation regarding the termination ofHartford Police Officer M atthew Secore. Including, but notlimited to any and all internal investigations,correspondence, e-mails, correspondence regarding LaborBoard hearings and rulings, appeals of any LaborBoard/mediation rulings as well as any and all records ofan y funds spent or billed to the City for the use of outsidecounsel in this matter."3. It is found that, by em ail dated September 2, 2009, respondent Rose replied:

".. .this is to acknowledge your email dated 9/1/09 re FOI-able documents related to the Secore case. The matter isstill in litigation and I will review and comply with yourrequest in that context. For the record, there is no outsidecounsel concerned with the Secore matter. I will review


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Docket # FIG 2009-551 Page 2the law and the documents and to the extent there aredisclosable materials I will gather them an d advise yo u thatthey are available for inspection. I a m sending your requestto such other City offices, agencies or departments as maybe in possession of documents relevant to your request.When I notify you that such disclosable documents areavailable, you may call.. .to schedule a time to reviewsame. Any copies you request will be billed at the statutoryper page rate."

4. It is found that, by email dated September 17, 2009, the complainant askedrespondent Rose for an "update on where this request stands," as the complainant ha dnot, as of that date, received any of the requested records from the respondents.5. It is found that, by email dated September 17, 2009, respondent Rose replied:

"It is my opinion that since the Secore case is a matterpending an d actively being litigated and, given the fact thatthe file contains materials covered by the attorney clientprivilege, the records pertaining to that matter are protectedfrom disclosure by the provisions of the General Statutes,Sec. 1-210."6. By letter of complaint, sent via email on September 19,2009, an d received onon September 21, 2009, the complainant appealed to this Commission, alleging that therespondents violated the Freedom of Information ("FOI") Act by failing to comply withthe request for records described in paragraph 2, above. In his complaint, thecomplainant requested that "the maximum civil penalties be assessed against Mr. Roseand any others involved in this matter."7. Section 1-200(5), G.S., provides:

"Public records or files" means any recorded data orinformation relating to the conduct of the public's businessprepared, owned, used, received or retained by a publicagency, or to which a public agency is entitled to receive acopy by law or contract under section 1-218, whether suchdata or informationbe handwritten, typed, tape-recorded,printed, photostated, photographed or recorded by anyother method.

8. Section l-210(a), G.S., provides in relevant part that:Except as otherwise provided by any federal law or statestatute, all records maintained or kept on file by any publicagency, whether or not such records are required by any


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Docket # FIC 2009-551 Page 3

law or by any rule or regulation, shall be public records andevery person shall have the right to (1) inspect such recordspromptly during regular office or business hours ... (3)receive a copy of such records in accordance with section1-212.

9. Section l-212(a), G.S., provides hi relevant part that "[a]ny person applying inwriting shall receive, promptly upon request, a plain or certified copy of any publicrecord."

10. It is found that the records described in paragraph 2, above, are public recordsand must be disclosed in accordance with 1-200(5), l-210(a) and l-212(a), G.S., unlessthey are exempt from disclosure.

11. It is found that, after an incident involving Officer Secore, the respondentCity of Hartford terminated Officer Secore's employment with the Hartford PoliceDepartment, an d thereafter,Officer Secore filed a grievance with th e State BoardofMediation and Arbitration ("Board"), claiming the city did not have just cause to firehim. It is found that, after a hearing, the Board issued its decision reversing thetermination, and issuing a suspension instead. It is further found that the respondent Cityof Hartford appealed the Board's decision to the superior court, where such case waspending at the time of the hearing in this matter.

12. At the hearing ha this matter, the complainant testified that, although he hadnot received any of the requested records from the respondents, he obtained, throughother sources, the following records he believed are maintained by the respondents:

a Hartford Police Department Internal AffairsReport, dated July 6, 2007, concerning OfficerSecore;

a letter from the City of Hartford to Officer Secore,dated January 31, 2008, with an interdepartmentalmemorandum, dated January 25, 2008, attached;

a legal brief filed with the Board, on behalf of theHartford Police Union, dated September 25,2008; a legal brief filed with the Board, on behalf of the

City of Hartford, dated September 26, 2008; the Arbitration Award, issued by the Board, datedJanuary 16, 2009 ("Arbitration Award").


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Docket # FIG 2009-5 51 Page 413. It is found that the respondents maintain the records described in paragraph12, above, and that such records are responsive to the request described in paragraph 2,above.14. At the hearing hi this matter, the respondent Rose stated that his office

maintains tw o large "redwell" files full of records responsive to the request, described hiparagraph 2, above.115. After the hearing in this matter, the hearing officer issued an order, datedDecember 18, 2009, requiring the respondents to submit to the Commission for in camerareview, the records being claimed exempt from disclosure, along with an index listingeach record and the specific exemption being claimed for each such record, on or beforeJanuary 13, 2010. At the respondents' request, an extension of tune was granted to filesuch submission, and the in camera records were filed with the Commission on January15 , 2010. It is found that the in camera records consist of 13 documents, totaling 90pages: two (2) emails, four (4) letters, two (2) portions of a transcript or transcripts

containing handwritten notes, three (3) memoranda containing handwritten notes, a list ofdirect examination questions, and an incomplete copy of the Arbitration Award,containing handwritten notes, all concerning the Secore matter. Such in camera recordsshall be designated herein as 1C 2009-551-001 through 1C 2009-551-013.16. It is found that the records described in paragraph 12 , above, were no tincluded with the in camera submission and are not claimed exempt from disclosure onthe in camera index filed with the Commission on January 15, 2009.17. The respondents contend that the in camera records are exempt fromdisclosure pursuant to l-210(b)(10), and l-210(b)(4), G.S.18 . Section l-210(b)(10), G.S., permits an agency to withhold from disclosurerecords of "communications privileged by the attorney-client relationship."19. The applicability of the exemption contained in l-210(b)(10), G.S., isgoverned by established Connecticut law defining the privilege. That law is well setforth in Maxwell v. FOI Commission, 26 0 Conn. 143 (2002). In that case, the SupremeCourt stated that 52-146r, G.S., which established a statutory privilege forcommunications between public agencies and their attorneys, merely codifies "thecommon-law attorney-client privilege as this court previously had defined it." Id. at 149.20. Section 52-146r(2), G.S., defines "confidential communications" as:

all oral an d written communications transmitted inconfidence between a public official or employee of a1 Corporation Counsel John Rose, a named respondent, appeared at the hearing in this matter, but declinedto give sworn testimony, andrefused to allow the complainant to ask him questions. Attorney Rose alsofiled an appearance in this matter on behalf of "all respondents." No witnesses appeared to testify onbehalf of the respondents.


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Docket # FIC 2009-551 Page 5public agency acting in the performance of his or her dutiesor within the scope of his or her employment and agovernment attorney relating to legal advice sought by thepublic agency or a public official or employee of suchpublic agency from that attorney, and all records preparedby the government attorney in furtherance of the renditionof such legal advice... .

21 . The Supreme Court has also stated that "both the common-law and statutoryprivileges protect those communications between a public official or employee and anattorney that are confidential, made in the course of the professional relationship thatexists between the attorney and his or her public agency client, and relate to legal advicesought by the agency from the attorney." Maxwell, supra at 149.22. The respondents claim, on the index to the in camera records, that 1C 2009-551-001, and 1C 2009-551-10, are exempt from disclosure pursuant to l-210(b)(10),G.S.23. After careful review of 1C 2009-551-001, which is an email, dated May 23,2008, it is found that the respondent Rose was acting in aprofessional capacity for theagency; an d further, that the communication was made between the respondent Rose an da current member of the public agency. However, it is also found that it cannot bedetermined by inspection of the document alone, that the communication relates to legaladvice sought by the agency from the respondent Rose; or that the communication wasmade in confidence. Further, it is found that the respondents offered no evidence at thehearing in this matter regarding the foregoing. It is therefore found that the respondentsfailed to prove that 1C 2009-551-001 is exempt from disclosure pursuant to 1-210(b)(10), G.S.24. After careful review of 1C 2009-551-010, which is a memorandum, datedM ay 20,2008, it is found that the respondent Rose was acting in aprofessional capacityfor the agency; that the communication was made between the respondent Rose and amember of the public agency; and that the communication relates to legal advice soughtby the agency from the respondent Rose. However, it is also found that it cannot be

determined by inspection of the document alone, that the communication was made hiconfidence. It is further found that the respondents offered no evidence at the hearing inthis matter regarding the foregoing. It is therefore found that the respondents failed toprove that 1C 2009-551-010 is exempt from disclosure pursuant to l-210(b)(10), G.S.25. With regard to the l-210(b)(4), G.S. claim of exemption, such provision

permits an agency to withhold "records pertaining to strategy an d negotiations withrespect to pending claims or pending litigation to which the public agency is a party untilsuch litigation or claim has been finally adjudicated or otherwise settled."26 . "Pending litigation" is defined hi 1-200(9), G.S., as "(A) a written notice to

an agency which sets forth a demand for legal relief or which asserts a legal right statingthe intention to institute an action before a court if such reliefer right is not granted by


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Docket # FIG 2009-551 Page 6the agency; (B) the service of a complaint against an agency returnable to a court whichseeks to enforce or implement legal reliefer a legal right; or (C) the agency'sconsideration of action to enforce or implement legal reliefer a legal right."

27. It is found that the respondent City of Hartford's pending appeal of theBoard's decision in the superior court at the time of the hearing in this matter constitutes"pending litigation" within the meaning of 1-200(9), G.S.

28 . Our Supreme Court has determined, relying on Webster's Third NewInternational Dictionary, that "strategy" is defined as "the art of devising or employingplans or strategems." City of Stamford v. Freedom of Information Commission, 241Conn. 310, 318 (1997). Further, the Court stated that "negotiation is defined as the actionorprocess of negotiating," and "negotiate is variously defined as: to communicate orconfer with another so as to arrive at the settlement of some matter: meet with another soas to arrive through discussion at some kind of agreement or compromise aboutsomething; to arrange for or bring about through conference and discussion: work out orarrive at or settle upon by meetings or agreements or compromises; and to influencesuccessfully in a desired way by discussion an d agreements or compromises." (Internalquotations omitted).

29. The respondents claim that 1C 2009-551-002 through 1C 2009-551-004 and1C 2009-551-006, which are letters and an email between counsel involved in the Secorematter, are exempt from disclosurepursuant to l-210(b)(4), G.S.30. After careful review of the hi camera records described in paragraph29,above, it is found that such records do not pertain to any strategy or negotiation withrespect to the pending litigation described in paragraph 27, above. Rather, it is found thatsuch records pertain to administrative matters. It is therefore found that such records areno t exempt from disclosure pursuant to l-210(b)(4), G.S.31. Next, the respondents claim that 1C 2009-551-005, which is a letter datedSeptember 8, 2009, is exempt from disclosure pursuant to l-210(b)(4), G.S.32. After careful review of the in camera record described hi paragraph 31,above, it is found that only the second and third paragraphs of such letter pertain tostrategy an d negotiation with respect to the pending litigation described in paragraph27,above. It is therefore found that only the second and third paragraphs of such letter areexempt from disclosure pursuant to l-210(b)(4), G.S.33. Next, the respondents claim that 1C 2009-551-007 and 1C 2009-551-008,areexempt from disclosure pursuant to 1 -210(b)(4), G.S. It is found that such recordsconsist of excerpts of a transcript, or transcripts, of a proceeding, involving OfficerSecore, which proceeding is not identified anywhere on, or in, such transcript(s). It isfurther found that portions of 1C 2009-551-007 and IC-551-008 are highlighted andcontain handwritten notes of the respondent Rose.


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Docket # FIC 2009-551 Page 843. It is found that the respondents do not maintain any records responsive to therequest for "records of any funds spent or billed to the City for the use of outside counselin this matter." It is therefore concluded that the respondents did not violate the FOI Actwith respect to such request.44. It is found that, in addition to the records described in paragraph 12, above,and the records provided to the Commission for in camera review, described in paragraph15, above, the respondents maintain many records responsive to the request described inparagraph 2, above, copies of which were neither provided to the complainant, norprovided to the Commission for in camera inspection, as ordered. It is found that suchrecords are, at least in part, those described hi paragraph 14, above.45. It is found that, at the hearing in this matter, the respondent Rose stated: "Iwould not turn over to ajudge on a subpoena any documents in our file, let alone providethem in a Freedom of Information situation."46. hi their post-hearing brief, the respondents claimed an "attorney workproduct" exception and argued that the requested documents are "not recoverable" from"the private file of Corporation Counsel." In addition, hi their brief, the respondents referto the complainant as "an officious intermeddlerr [sic] who seeks, by utilizing the FOIAct, to invade Attorney Rose's file in a way that not even opposing counsel might do...."According the respondents, the burden is on the complainant to "show[ ] why thedocuments he seeks must come from Attorney Rose's file." Also, in their brief, therespondents add that "[i]n fact, [the complainant] has produced in this proceeding severalvery substantial documents subsumed by his FOI request which he obtained God-knows-wherebut certainly not from Attorney Rose's file. Clearly the documents are availablewithout the need for him to invade the privacyviolate the sanctity of Attorney Rose's

file."47. The respondents point to no specific provision of the FOI Act which setsforth an "attorney work product" exemption, and the Commission is aware of no suchprovision. The federal case law cited in the respondents' brief does no t support theirposition.48. Moreover, even if an "attorney work product" exemption existed, therespondents' broad assertion of such an exemption is contrary to established case law.49. It is a cornerstone of FOI Act case law that an agency must make aparticularized showing that an exemption applies, and the propriety of an exemptiondepends on the information contained hi the particular record requested. New Haven v.FOIC, 205 Conn. 767 (1988); Perkins v. FOIC, 22 8 Conn. 15 8 (1993); Dir., Dep't of InfoTech v. FOIC, 274 Conn. 179,193 (2005). Moreover, our Supreme Court has held thatwhere "... the applicability of an exemption is in dispute it is not only within thecommission's power to examine the documents themselves, it is contemplatedby the actthat the commission do so." Wilson v. FOIC, 18 1 Conn. 324, 339-40 (1980). The Courtcited l-205(d) [formerly l-21j (d)], G.S., which provides in relevant part that:


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Docket#FIC 2009-551 Page?

34. After careful review of the in camera records described in paragraph 33,above, it is found that such records, as highlighted, along with the handwritten notes,pertain to strategy and negotiation with respect to the pending litigation described hiparagraph 27, above. It is further found that such records could not be redacted in such away as to prevent disclosure of the respondents' strategy. It is therefore found that 1C2009-551-007 and 1C 2009-551-008, are exempt from disclosure in their entiretypursuant to l-210(b)(4), G.S.

35. Next, the respondents claim that 1C 2009-551-009 is exempt from disclosurepursuant to l-210(b)(4), G.S. It is found that such record consists of amemorandum,dated September 2, 2008.36. After careful review of the in camera record described in paragraph 35,

above, it is found that such record pertains to strategy and negotiation with respect to thepending litigation described in paragraph 27, above. It is therefore found that 1C 2009-551-009, is exempt from disclosure pursuant to l-210(b)(4), G.S.

37. Next, the respondents claim that 1C 2009-551-010 and 1C 2009-551-011 areexempt from disclosure pursuant to l-210(b)(4), G.S.38. After careful review of the in camera records described in paragraph 37,

above, it is found that such records pertain to strategy and negotiation with respect to thepending litigation described in paragraph 27, above. It is therefore found that 1C 2009-551-010 and 1C 2009-551-011, are exempt from disclosure by virtue of l-210(b)(4),G.S.

39. Next, the respondents claim that 1C 2009-551-012 is exempt from disclosurepursuant to l-210(b)(4), G.S. It is found that such record contains handwritten notes,some of which are not readable due to copying error.

40. After careful review of the in camera record described in paragraph 39,above, it is found that only the handwritten notes contained in such record pertain tostrategy and negotiation with respect to the pending litigation described in paragraph27,above. It is therefore found that only the handwritten notes contained in 1C 2009-551-012, are exempt from disclosure by virtue of l-210(b)(4), G.S.

41. Next, the respondents claim that 1C 2009-551-013 is exempt from disclosurepursuant to l-210(b)(4), G.S. It is found that such record contains handwritten notes.

42. After careful review of the in camera record described in paragraph 41,above, it is found that only the handwritten notes contained in such record pertain tostrategy and negotiation with respect to the pending litigation described in paragraph 27,above. It is therefore found that only the handwritten notes contained in 1C 2009-551-013, are exempt from disclosure by virtue of l-210(b)(4), G.S.


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Docket # FIG 2009-551 Page 9

"Said commission shall have the power to investigate allalleged violations of [the act] and may for the purpose ofinvestigating any violation hold a hearing, administer oaths,examine witnesses, receive oral and documentary evidence,have the power to subpoena witnesses under p roceduralrules adopted by the commission to compel attendance andto require th e production fo r examination of any books andpapers -which th e commission deems relevant in any matterunder investigation or in question." (Emphasis added.)Id. at 340. The Supreme Court also held that l-205(d), G.S., "anticipates that theCom mission will play a central role hi resolving disputes administratively under the act.To fulfill this role effectively, the Com mission's determinations must be informed. Itshould no t accept an agency 's generalized and unsupported allegations relating todocumen ts claimed to be exempt from disclosure." Id., citing C hurch of Scientology ofCalifornia v. United States Department of the Army. 611 F.2d 738, 742 (9th Cur. 1979).

50 . However, hi this case, with respect to the majority of the records therespondents adm ittedly maintain, the respondent R ose has refused to comply with theCommission's order to submit such records for an hi camera inspection, and has refusedto allow the Commission to examine the information contained hi the particular recordsrequested. Rather, the respondent Rose, w ithout claiming a specific statutory exemptionto disclosure, has made only categorical, general assertions that the records therespondents maintain are not disclosable because they are "private." The respondentshave thus obstructed the Commission's process.51. To the extent that the respondent R ose relies on Lash, First Selectman of theTown of Greenwich v. Freedom of Information Com mission, 116 Conn. App. 171(2009), appeal pending, Supreme C ourt Docket No. SC 18461, for the proposition that heis relieved from his responsibilities under the FO I Act because the com plainant shouldhave requested the records from the Police Department, rather than from CorporationCounsel's office, such reliance, too, is misplaced, given the fact that hi his September 2,2009 reply to the complainant, the respondent R ose offered to send his request to othercity departments that might be hi possession of records responsive to such request.52 . Based upon the foregoing, it is concluded that the respondents violated: (1)l-210(a) and l-212(a), G.S., by failing to disclose the records, or portions thereof,

described hi paragraphs 12, 23, 30, 32, 40 and 42, above, and (2) the Com mission's orderfor in camera inspection of the records being claimed exempt.53. W ith regard to the com plainant's request for civil penalties, l-206(b)(2),G.S., prov ides hi relevant part:

2 See paragraph 3, above.


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... upon the finding that a denial of any right created by theFreedom of Information Act was without reasonablegrounds and after the custodian or other official directlyresponsible for the denial ha s been given an opportunity tobe heard at ahearing conducted in accordance with sections4-176e to 4-184, inclusive, the commission may, in itsdiscretion, impose against the custodian or other official acivil penalty of not less than twenty dollars nor more thanon e thousand dollars.

54. It is found that the respondent Rose is the individual who made the decisionto withhold the records, or portions thereof, described in paragraphs 12, 23, 30, 32, 40and 42, above, from the complainant, and that therefore, the respondent Rose is theofficial directly responsible for the denial of the right to inspect the records, or portionsthereof, described in paragraphs 12, 23, 30, 32, 40, and 42, above, as created by 1-210(a) and l-212(a), G.S. It is further found that such denial was without reasonablegrounds.

55. It is also found that the FOI Act, and the regulations promulgated thereunder,create a right to a fair hearing for any person who has been denied the right to inspect orcopy records, or denied access to the meetings of public agencies. See l-206(a), G.S.l-225(a) and l-21j-35(a) of the Regulations of State Agencies.3 It is found that therespondent Rose's refusal to allow the Commission to conduct an in camera inspection ofthe records it maintains that are responsive to the request described in paragraph2, above,violated the complainant's right to a fair hearing under the FOI A ct and the regulations.It is found that the respondent Rose is the individual who made the decision not complywith the Commission's order to submit the records being claimed exempt for in camerainspection, and that therefore, the respondent Rose is the individual who is the officialwho is directly responsible for the denial of the complainant's right to a fair hearing inthis matter. It is further found that the denial of such right was without reasonablegrounds.The following order by the Commission is hereby recommended on the basis ofthe record concerning the above-captioned complaint:

The following order by the Commission is hereby recommended on the basis of therecord concerning the above-captioned complaint.1. The respondents shall forthwith provide the complainant with copies of therecords described in paragraphs 12, 23, 30, 32,40, and 42, above, as well as a copy ofevery record in all files maintained by the respondents responsive to the request describedin paragraph 2, above, free of charge.

3 Sec. 1-21 -35 of the Regulations provides, in relevant part: (a) Purpose ofhearing. Thepurpose of anyhearing the commission conducts under chapter 54 of the general statutes shall be to provide to all partiesan opportunity to present evidence and argument on all issues to be considered by the commission.


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2. In complying with paragraph 1, above, of the order, the respondents mayredact only those portions of the records described inparagraphs 32, 40 and 42, above,found to be exempt from disclosure by this Commission.3. The respondent Rose shall forthwith remit a civil penalty in the amount of

$1000.00 (one thousand dollars ) to the Commission.

Kathleen K . Rossas Hearing Officer

FIC 2009-551/hor/kkr/02112010

foi proposed final decision rose-secore

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