FOI Decision Erdmann

8/14/2019 FOI Decision Erdmann

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FREEDOM OF INFORMATION COMMISSIONOF THE STATE OFCONNECTICUT

18-20 Trinity Street Hartford, CT 06106Telephone: (860)566-5682Toll-free (CT only): (866) 374-3617Fax: (860)566-6474

Kevin Brookman,Complainant(s ) Notice of MeetingagainstDocket #FIC 2008-455Le e Erdmann, Chief Operating Officer,

City of Hartford; and City of Hartford,Respondent(s) June 1,2009

Transmittal of Proposed Final DecisionIn accordance with Section 4-179 of the Connecticut General Statutes, th e Freedom ofInformation Commission hereby transmits to you the proposed finding an d decision prepared byth e hearingofficer in the above-captioned matter.This wi l l notify you that th e Commissionwil l consider this matter fo r disposition at itsmeeting which wi l l be held in the Freedom of Information Commission Hearing Room, 18-20

Trinity Street, 1st floor, Hartford, Connecticut, at 2 p.m. on Wednesday, June 24, 2009. Atthat time an d place you wil l be allowed to offer oral argument concerning this proposed findingan d 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 additional timemust be made in writing and should be filed with th e Commissionon or before June 12, 2009.Such request MUST BE (1) copied to all parties, or if the parties are represented, to suchrepresentatives, and (2) include a notation indicating such notice to all parties or theirrepresentatives.Although a brief or memorandum of 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 beforeJune 12, 2009. PLEASE NOTE: Any correspondence, briefer memorandum 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 memorandumwith th e hearing officer an d wish tohave that document distributed to each memberof the Commission, it is requested that eleven(11) copies be filed on or before June 12 , 2009, an d 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 fo r review.

der of the Freedorn flnform3tk?n Commission

W. Paradis, Acting Clerk of the CommissionNotice to: Kevin BrookmanJ. Hanson Guest, Esq.cc: John Rose, Jr., Esq.


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FREEDOM OF INFORMATION COM MISSIONOF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Report of Hearing OfficerKevin Brookman,

Complainantagainst Docket #FIC 2008-455

Le e Erdmann, Chief OperatingOfficer, City of Hartford; an dCity of Hartford,Respondents June 1, 2009

The above-captioned matter was heard as a contested case on November 10, 2008, atwhich time the com plainant and the respondents app eared, stipulated to certain facts andpresented testimony, exhibits and argument on the complaint.After consideration of the entire record, the following facts are found and conclusions oflaw are reached:1 . The respon dents are public agencies within the me aning of 1-200(1), G. S.2. It is found that the comp lainant made a request to the responden ts dated May 21, 2008(hereinafter "the May request") for records related to the employment of Donald Lefevre, andthat th e respondents complied with such request . It is further found that on e record which th ecomplainant received as a result of the M ay request was an October 19, 2006, letter from th erespondent ch ief ope rating officer to Tax Collector Donald Lefevre, informing him of allegationsmade against h im, an d p lac ing Mr. Lefevre on adminis trative leave. It is further found that suchletter sparked the com plain ant's request as described in paragraph 3, below, w hich is the subjectof the complaint in this matter.3. It is found that, by e-mail dated June 20 , 2008 , th e complainant requested that th erespondents provide him with copies of all records regarding a number of allegations referenced

in the October 19, 200 6 letter, including any docume ntation of the allegations, as we ll as reportsof investigations of the allegations, and notes m ade in the course of the investigation (hereinafter"the June request").4 . It is found that, by e-mail dated June 23, 200 8, the respondents acknowledg ed receiptof th e request described in paragraph 3 , above.


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Docket #FIC2008-455 Page 2

5. By letter dated July 8, 2008, and filed July 10, 2008, th e complainant appealed to theC ommission, alleging that th e respondents violated th e Freedom of Information ("FOI") Act byfailing to comply with his request. The complainant requested the imposition of a civil penaltyagainst th e respondent chief ope rating officer.6. Section 1-200(5), G. S., defines public records to mean:

... any recorded data or information relating to the conduct of thepublic's business prep ared, owne d, used, received or retained by apublic agency, or to which a public agency is entitled to receive acopy by law or contract under section 1-218, wh ether such data orinformation be handw ritten, typed, tape-recorded, printed,photostated, photographed or recorded by any other method.7. Section l-210(a), G.S., provides in relevant part:

Except as otherwise provided by any federal law or state statute, al lrecords maintained or kept on file by any public agency, wh etheror not such records are required by any law or by any rule orregulation, shall be public records and every pe rson shall have theright to (1 ) inspect such records promp tly during regular office orbusiness hours, (2) copy such records in accordance withsubsection (g) of section 1-212, or (3) receive a copy of suchrecords in acco rdance with section 1-212.8. Section l-212(a), G. S., provide s in relevant part that "[a]ny person applying inwriting shall receive, p romp tly upon request, a plain or certified copy of any public record."9. It is found that th e records described in paragraph 3, above, are public records withinthe meaning of 1-200(5) and l-210(a), G. S.10. At the hearing in this matter, th e respondents did not claim an exemption todisclosure for any of the requested records, and the complainant testified that this case does notconcern promptness. Rather, th e dispute betwe en th e parties concerns whethe r th e respondentshave p rovided th e complainant with al l requested records.11. It is found that Mr. Lefevre filed a grievance challenging th e action taken by therespondent city in placing him on administrative eave, as described in paragraph 2, above. It isfurther found that, in settlement of such grievance, th e responden t city and Mr. Lefev re executeda general release and settlement agreement in August 2007 , whe reby Mr. Lefevre resigned hisposition and the city authorized certain payme nts to him.12. It is found that, in August 2008, in further compliance with the May request, th erespondents provide d the comp lainant with thousands of records which are also respon sive to theJune request. At the hearing in this matter, th e complainant acknowledged that he had not


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Docket #FIC2008-455 Page 3

reviewed all of the records provided in response to the May request. It is found, however, thatthe complainant w as not provided w ith an investigative re port of the allegations described inparagraph 2, above, nor with any notes of investigators of such allegations. The respondents'witness testified that, as far as he kne w, all records had been p rovide d to the com plainant and hewas unaware of the existence of any written investigative report or investigator's notes. Th ecomplainant expressed incredulity that th e city would enter into th e settlement agreementdescribed in paragraph 11 , above, without docume ntation of an investigation into th e allegationsat issue.

13. It is found that th e respondent chief operating officer conducted th e investigation intothe allegations described in paragraph 2, above. Howe ver, such respondent did not personallyappear at the hearing in this matter to presen t testimony about th e existence of a responsiveinvestigative rep ort or inve stigator's note s.14. It is found that th e respondents failed to prove that they had conducted a diligentsearch for all responsive requested records in this matter, and therefore failed to prove that theyhave provide d all requested records to the com plainant.15. It is concluded that th e respondents violated th e FO I Act in this matter.16. The Comm ission notes that the respondents have provided the com plainant withthousands of responsive records. The C omm ission decline s to consider the impo sition of a civilpenalty in this matter.The following order by the C ommission is hereby recommended on the basis of therecord concerning th e above-captioned com plaint:1. Forthwith, th e responde nts shall provide to the complainant a copy of the investigative

report and investigator's notes, as described in paragraphs 12 and 13 of the finding s, above, freeof charge.2. In the event that no investigative report or investigator's notes exist, th e respondentchief operating officer shall so inform th e complainant in an affidavit.

Mary E.($chwindas Hearing Officer

HOR/FIC2008-455/mes/060l2009

Documents

FOI Decision Erdmann