Foi Decision Bd of Ed

8/14/2019 Foi Decision Bd of Ed

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FREEDOM OF INFORMATION COMMISSIONOF THE STATE OF CONNECTICUT

18-20 Trinity Street Hartford, CT 06106Telephone: (860) 566-5682T o l l - f r e e (CT on ly): (866)374-3617

Fax: (860)566-6474Kevin Brookman,

Complainants) Notice ofMeetingagainst

Docket #FIC 2009-209Steven J. Adamowski, Superintendent ofSchools, Hartford Public Schools; Jill Cutler-Hodgman, Labor Relations Department,Hartford Public Schools; M i l ly Ramos-Agosto, Labor Relations Department, HartfordPublic Schools; and Hartford Public Schools,Respondents) August 6,2009

Transmittal of Proposed Final DecisionIn accordance with Section 4-179 of the Connecticut General Statutes, the Freedom of

Informa ti on Commission hereby transmits to you the proposed f i nd i ng and decision prepared bythe hearing officer in the above-captioned matter.This w il l notify you that the Commission will consider this matter for disposition at its

meeting which will be held in the Freedom o f Information Commission Hearing Room, 18-20Trinity Street, 1st floor,Hartford, Connecticut, at 2 p.m. on Wednesday, September9,2009.At that time and place you w il l be allowed to offer oral argument concerning this proposedf in din g and order. Oral argument shall be limited to ten (10) minutes. For good cause shown,however, the Commission may increase the period of time for argument. A request for additionaltime must be made in writing and should be filed with the Commission on or before August 28,2009. Such request MUST BE (1) copied to all parties, or if the parties are represented, tosuch representatives, and (2) include a notation indicating such notice to all parties or theirrepresentatives.

Although a briefer memorandumof law is not required, if you decide to submit such adocument, the Commission requests that an original and ten (10) copies be filed on or beforeAugust 28, 2009. PLEASE NOTE: Any correspondence, brief ormemorandum directed tothe Commissioners by any party or representative of any party MUST BE (1) copied to allparties, or if the parties are represented, to such representatives, (2) include a notationindicating such notice to all parties or their representatives and (3) be limited to argument.NO NEWEVIDENCE MAY BE SUBMITTED.If you have already filed a briefer memorandum with the hearing officer and wish tohave that document distributed to each member of the Commission, it is requested that eleven(ID copies be filed on or before August 28, 2009, and that notice be given to all parties or if theparties are represented, to their representatives, that such previously filed document isbeing submitted to the Commissioners for review.

By Order of the Freedom of Informa ti on Commission

W. Paradis, Acting Clerk of the CommissionNotice to: Kevin BrookmanM e l i n d a B. K a u f m a n n , Esq.


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Docket #FIC2009-209 Page 2

E m p l o y m e n t r e c o rd s /p e r s o n n e l r e co r d s f o r D r . S t e v e nAdamowski to include any employment contracts and oremployment agreements, includingbut not limited to anyoriginal contracts/agreements and or supplementalagreements covering transportation and use of a cityvehicle, housing and or agreements regarding any livingexpenses covered by the City of Hartford and or theHartford Board of Education.

Also, please include any documentation regarding useo f any City credit cards and/or expense reports or requestsfo r reimbursement for purchases submitted to the City ofHartford and/or the Hartford Board of Education.4. It is f o u n d that the respondent Milly Ramos-Agosto, an employee in the Labor

Relations Department, responded on behalf of Ms. Cutler-Hodgman on the next day,March 12, 2009, acknowledging the complainant's request, and setting forth the statutorycopying fees.

5. It is found that the complainant, by reply email on the same day, pointed outthat his request had not been for copies, but to review the requested records.

6 . It is found that the complainant, having not received any response by March20, called Ms. Ramos-Agosto and asked when he would he would be given access to therequested records.

7 . It is found that Ms. Ramos-Agosto then on that day, March 20, 2009, faxed acopy of the current superintendent's contract to the complaint, consisting of five pages,together with a single page, summarizing in a single line, the total purchases and creditson Superintendent Adamowski's credit card. The complainant was not charged for thecopies.

8 . It is found that Ms. Ramos-Agosto obtained the records she faxed by going toMs. Cutler-Hodgman and showing her the complainant's request, and going to theFinance Department, and doing the same. The records she was given were the recordsshe faxed to the complainant.

9. It is f o u n d that the complainant immediately called Ms. Ramos-Agosto andcomplained about the small number of records provided in response to his broad request.In particular, he told Ms. Ramos-Agosto he wanted not just the single line summary ofthe purchases and credits on the Superintendent's credit card, which was the last page ofthe report for that card, but the pages of itemization of purchases and credits that appearon the pages that precede the summary. Additionally,he wanted any records that wouldshow whether the City or the Board of Education was paying for the Superintendent'sapartment.


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Docket #FIC 2009-209 Page 310. It is found that Ms. Ramos-Agosto, believing she lacked the authority to

provide additional records on her own , went to Ms. Cutler-Hodgman and asked what todo. Ms. Cutler-Hodgman told Ms. Ramos-Agosto that it was Ms. Cutler-Hodgman'sposition that the respo n dents had co mplied with the co mplain an t 's request.11 . It is found that the complainant, by email dated April 1 3 , 2009, reiterated his

request to all three in dividually -n amed respon dents, indicatin g his belief that they had notcomplied with hi s request.1 2. It is foun d that Ms. Ramos-Ago sto respo n ded by email o n that same day,saying that "W e responded to y o u r request via fax on March 20 , 2009."1 3 . It is f o u n d that the complainant , in turn, again o n th e same da y replied:

I mig ht suggest that y o u read the request again. Yo uresponded with one document, there were several itemsrequested. T here was also so me sort o f spread sheetshowing credit card use. That is not what I asked for. . . .14. It is foun d that the complainant then filed his complaint.15. It is foun d that, in response to the complaint filed, counsel for the respondentswrote the complain ant on July 1, 2009 that the respondents had complied with hisrequest. Counsel additionally stated:

If you are claiming that th e Hartford Board o fEducation failed to provide an y requested documents,please indicate specifically which do cuments y o u believewere co vered by y o u r request but n o t provided so that w emay proper ly respo n d to y o ur requests.

16. It is found that counsel for the respondents, by letter dated July 20, 2009,reiterated he r request that th e c om plai nant specify which documen ts were n o t provided.17 . It is f o u n d that the c om plai nant , by letter dated July 21, 2009 to c ou ns e l fo rth e respondents, reiterated his o riginal M arch 11 , 2009 request, an d also specified threecategories of records not provided: (1) information regarding the Superintendent'shousing and living expenses paid by the City o f Hartford or the Board o f Education; ( 2)the detailed credit card expenses incurred by the Superintendent over the past two years,as required un der "P card use guidelines;" and (3) any supplemental agreementsmentioned in the original employment agreement.18. It is foun d that the respondents, through counsel, then gathered severalhundred pages o f records an d made them available fo r the complainant 's review o n July

24, 2009.


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1 9 . S e c t i o n 1 - 2 0 0 ( 5 ) , G . S . , p r o v i d e s :"Public records or files" means any recorded data orinformation relating to the conduct of the public's business

prepared, 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 information be handwritten, typed, tape-recorded,printed, photostated, photographed or recorded by anyother method.

20. Section l-210(a), G.S., provides in relevant part:Except as otherwise provided by any federal law or

state statute, al l records maint ained o r kept o n fi le b y a n ypublic agency, whether o r n o t such records are required byan y l a w o r by a n y rule o r regulation, shall be public recordsand every person shall have the right to (1) inspect suchrecords promptly during regular office or business hours,(2) copy such records in accordance with subsection (g) ofsection 1-212, or (3) receive a copy of such records inaccordance with section 1-212.

21. It is concluded that the requested records are public records within themeaning of 1-200(5) and l-210(a), G.S.

22. The complainant maintains that his request on its face clearly asked for morethan the five-page contract and the one-line credit card summary that he was provided onApril 14; that the respondents' initial response to his request was therefore manifestlyinsufficient; that the respondents refused to provide more records notwithstanding thatthey knew there were more records and that he had communicated his request for morethan what he had received; that he specified at least some of the additional records that hewanted; and that he did not receive a meaningful response to his request until days beforethe hearing on this matter in late July.

2 3 . T h e respondents contend, to the contrary, that they promptly an d sufficientlycompl ied with complainant's request o n April 1 4 ; that he failed to clarify his requestb e y o n d directing the respondents' attention to the language of his written request; that hefailed to respond to counsel's request for clarification on July 1; that he refused to specifywhat he wanted until July 20; and that when he finally specified what he wanted, hesought records outside the scope of his original request.

24. With respect to the respondents' April 14 provision of six pages of records, itis f o u n d that, considering the small number of records provided, the lack of evidence thatthose documents were difficult to obtain by the respondents, and the respondents' failure


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Docket #FIC2009-209 page5to pro vide tho se records un til pro mpted by a telephone call fro m the complainant, thatthose records were n o t provided pro mpt ly w ithin the m e a n i n g of l-210(a), G.S.

25. It is therefo re co n cluded that the respon den ts viol ated l-210(a), G.S., byfailing to make the six pages of records available until over a month after thecomplainant 's request.26 . With respect to the respondents' assertion that the c om plai nant refused toclarify his request, it is f o u n d that, at a m i ni m u m , th e complainant, immediately after hereceived the six pages of records on April 1 4 , contacted the respondents and complainedvociferously that he wanted the detail of the credit card use, and any records pertaining topayment by the Board o f Education o r the City o f Hartford for the Superintendent'sapartment.27 . With respect to the respo n dents' assertion that it was insufficient for thecomplain ant to direct their attentio n to the language o f his request, it is found that hisrequest is reasonably clear on its face, and that it was not unreasonable for thecomplain ant to rely on i t .28 . With respect to the respondents' assertion that the records specified by theco mplainan t on July 21, as described in paragraph 1 7 , above, were outside the scope ofhis o riginal request, it is f o u n d to the contrary that the records so specified o n July 21were plain ly within the scope o f his original request.29. T he respon den ts maintain that the hundreds o f pages of records provided onJuly 24 w ere pro vided prom ptly, because they were provided w ithin days o f thecomplainant's J u ly 21 letter, and that they wo uld have been provided even earlier had thecomplainant responded to respondents' counsel's July 1 letter.3 0. W ith respect to the respon den ts' assertion that the co mplain an t failed torespond promptly to respondents' counsel's July 1,2009 request fo r clarification, itfound, based upon the representation of counsel for the respondents, that the July 1, 2009letter was deposited in the mail.3 1 . T he respo n den ts co n tend that, since the July 1 letter was deposited in themail, it is deemed received by the com plain ant pursuant to the "mailbox rule."3 2. T he mailbo x rule is the name for the prevailing tenet that a pro perly stampedan d addressed letter that is placed in to a mailbox o r han ded o ver to the U n ited StatesPostal Service raises a rebuttable presumption that it will be received. 29 Am. Jur. 2d ,Evidence 262 (1994 ); see Tvler E. Lvman. I nc . v . L od r in i . 6 3 C on n. App. 7 3 9, 7 4 7 , 7 8 0A.2d 932, cert, denied, 258 C o n n . 902, 782 A.2d 13 7 (2001).3 3 . T he respo n dents have met their burden o f pro ving that the July 1 letter wasplaced into a mailbox o r handed over to the United States Postal Service.


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Docket #FIC2009-209 Page 6*

3 4 . P u r s u a n t t o th e m a i lb o x r u le , t h e b u r d e n t h e n s h i f t s t o th e c o m p l a in a n t t opresent evidence that rebuts this presumption.

3 5. The complainant testified without contradiction that he never received theletter, which is why he didn't respond.

3 6 . Further, it is f o u n d that th e complainant immediately replied to therespondents' March 12, 2009 email, immediately responded to the respondents' April 13fax of documents, immediately responded to respondents' counsel's subsequent July 20letter, immediately responded to respondents' counsel's three emails on July 23 and 24,an d immediately responded to respondents' counsel's offer to review the records daysbefore the hearing on this matter.

37. I t is therefore found, by reasonable inference from the facts, that had thecomplainant received th e July 1 2009 letter, he would have immediately responded to i tin the same manner as he responded to every other communication f r om the respondentsand respondents' counsel related to his request.

3 8 . It is found that the complainant met his burden of rebutting the presumptionthat the July 1 letter was received, that the complainant did not in fact receive the July 1letter from respondent's counsel, and that none of the delay between July 1 and July 20 isattributable to the complainant.

39. Given that the respondents were able to produce hundreds of pages ofresponsive documents within a matter of days after July 20, and that those documentswere provided in response to a letter that did not in fact ask for any new records beyondthe complainant's March 1 1 request, it is concluded that the respondents failed topromptly comply with the complainant's March 11 request.

40. With respect to the complainant's request for the imposition of civil penalties,l-206(b)(2), G.S., provides in relevant part:... upon the finding that a denial of any right created by theFreedom of Inf or mat ion Act was without reasonablegrounds an d after the custodian o r other official directlyresponsible for the denial has 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 thanone thousand dollars.

4 1 . The standard for when a violation is "without reasonable grounds" isanalogous to the legal standard "without any substantial justification." ConnecticutDepartment of Public Safety v. FOIC et al., 1997 W L 537117 (Conn. Super.), affirmed,247 Conn. 341 (1998). Similarly, the phrase "without reasonable justification" has been


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con strued to mean "entirely unreasonable or without an y basis in law or fact." Id.,quoting Bursinkas v. Department o f Social Services. 24 0 C o n n . 14 1,155 (1997).4 2. The respondents contend that their initial provision of six pages of records tothe complainant was reasonable, that any delay was due to the complainant's failure tospecify what he wanted, and that the hundreds of pages of documents provided on July 24

were reasonably provided then because they were outside the scope of the March 11request.4 3 . It is found, however: that the complainant's March 11 request was reasonablyclear o n i ts face, an d that there were n o reasonable grounds for the respondents to makethe most minimal response possible o n April 1 3 ; that the respondents were o r should havebeen aware that there were hundreds o f additional responsive pages, an d that there weren o reasonable grounds fo r delaying access to those records until late July; that therespondents specifically withheld the detailed credit card records explicitly requested bythe complainant, an d that there were n o reasonable grounds fo r doing so; and thatvirtually all o f the delay in providing the requested records was the responsibility o f therespondents, an d that it is not reasonable to blame that delay o n t he complainant.44 . It is therefore f o u n d that the respondents' violations of the FOI Act werewithout reasonable grounds within the meaning o f l-206(b)(2).45. With respect to the requirement in l-206(b)(2), G.S., that the "custodian orother official directly responsible for the denial has been given an opportunity to beheard" prior to the imposition of a civil penalty, three individuals, Steven J. Adamowski,Jill Cutler-Hodgman, and Milly Ramos-Agosto, were given an opportunity to be heard4 6 . There is n o evidence that Superintendent Adamowski w as directly involvedin the denial o f the complainant's FOI rights.47. It is f o u n d that Ms. Ramos-Agosto acted solely at the direction of Jill Cutler-Hodgman, who she characterized as "her boss."48. It is found that M s. Ramos-Agosto communicated the request to Ms. Cutler-Hodgman, that M s. Cutler-Hodgman limited the response to the request to six pages o frecords, an d that Ms. Cutler-Hodgman refused to reconsider he r position despite the

complainant'sclear communication to Ms. Ramos-Agosto, who in turn communicated toM s. Cutler-Hodgman.4 9. It is therefore f o u n d that M s. Cutler-Hodgman is the custodian o r otherofficial directly responsible for the denial of the complainant's FOI rights.50. The Commission believes that a civil penalty would have a deterrent effect.The Commission is specifically concerned that, should Ms. Cutler-Hodgman and theother respondents believe that their actions to stonewall the provision of public recordscan be entirely cured by a last-minute offer o f documents days before an FOI


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Docket #FIC2009-209 Page 8Commission hearing, and that no adverse consequences will flow f r o m that action o therthan a directive to hen cefo rth com ply with the FOI Act, then the prom ptness requiremen to f l-210(a), G.S., will have been rendered n ugato ry.

T he f o l l o w i n g order by the C o mmission is hereby recommended on the basis o fthe reco rd con cern ing the abo ve-caption ed complaint :1. The respondent Jill Cutler-Hodgman shall, within 45 days of the notice offin al decisio n in this matter, remit a civil penalty in the amo un t of $1 00 to theC o m m i s s i o n .

Viktor R. Pe:as Hearing Officer

F1C2009-209/HOR/VRP/07282009

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