Connecticut Freedom of Information Commission

Due to public health concerns, CONTESTED CASE HEARINGS scheduled for the weeks of March 16 and March 23 are POSTPONED. The regular meeting of the FOI Commission scheduled for March 25, 2020, is CANCELED.

TO: Freedom of Information Commission
FROM: Cynthia A. Cannata
RE: Minutes of the Commission’s regular meeting of March 9, 2016
DATE: March 10, 2016
     A regular meeting of the Freedom of Information Commission was held on March 9, 2016, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut.  The meeting convened at 2:05 p.m. with the following Commissioners present:
     Commissioner Owen P. Eagan, presiding
     Commissioner Jay Shaw (participated via speakerphone)
     Commissioner Jonathan J. Einhorn
     Commissioner Matthew Streeter
     Commissioner Christopher P. Hankins
     Commissioner Lenny T. Winkler
  
     Also present were staff members, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Kathleen K. Ross, Valicia D. Harmon, Paula S. Pearlman, Virginia Brown, and Cynthia Cannata.
     The Commission voted unanimously to approve the minutes of the Commission’s regular meeting of February 24, 2016.
     Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
Jason Goode v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
     Jason Goode participated via speakerphone.  Attorney James Neil appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report. 
Jason Goode v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
     Jason Goode participated via speakerphone.  Attorney James Neil appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Jason Goode v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
    Jason Goode participated via speakerphone.  Attorney James Neil appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Antwan Sease v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
     Antwan Sease participated via speakerphone.  Attorney James Neil appeared on behalf of the respondents.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.  The proceedings were recorded digitally.
Tyronne Pierce v. Chief, Police Department, Town of Putnam; Police Department, Town of Putnam; and Town of Putnam
     Tyronne Pierce participated via speakerphone.  The Commissioners unanimously voted to approve the Hearing Officer’s Report.  The proceedings were recorded digitally.
 Docket #FIC 2013-479
Robert Cushman v. Chief, Police Department, Town of Montville; and Police Department, Town of Montville
     The Commissioners took no action.  The matter was marked off.
 Docket #FIC 2015-459
Cherlyn Poindexter and the New Haven Management and Professional Union v. Toni Harp, Mayor, City of New Haven; Marcus Paca, Labor Relations, City of New Haven; and City of New Haven
     The Commissioners took no action.  The matter was marked off
Rakmatulla Asatov v. Commissioner, State of Connecticut, Department of Veterans Affairs; and State of Connecticut, Department of Veteran’s Affairs
     Rakmatulla Asatov appeared on his own behalf.  The Commissioners unanimously voted to amend the Hearing Officer’s Report.  The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Judith Shpak v. Superintendent of Schools, Oxford Public Schools; and Oxford Public Schools
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Mark Nejfeldt v. Mayor, Town of Plymouth; Town Council, Town of Plymouth; and Town of Plymouth
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Elizabeth Reese v. Mayor, Town of Plymouth; Town Council, Town of Plymouth; and Town of Plymouth
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Helen Nejfeldt v. Mayor, Town of Plymouth; Town Council, Town of Plymouth; and Town of Plymouth
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Gregory A. Slate v. First Selectman, Town of Westport; and Town of Westport
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Gregory A. Slate v. First Selectman, Town of Westport; and Town of Westport
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
Gregory A. Slate v. First Selectman, Town of Westport; and Town of Westport
     The Commissioners unanimously voted to approve the Hearing Officer’s Report.
    
     Victor R. Perpetua reported on pending appeals.    
     Mary E. Schwind reported on legislation.

     The meeting was adjourned at 2:54 p.m.

     ______________________
     Cynthia A. Cannata
     MINREGmeeting 03092016/cac/03102016
AMENDMENTS
Rakmatulla Asatov v. Commissioner, State of Connecticut, Department of Veterans Affairs; and State of Connecticut, Department of Veteran’s Affairs
     The Hearing Officer’s Report is amended as follows:
     12.  IN PERSONNEL DIRECTOR, DEPARTMENT OF INCOME MAINTENANCE V. FOIC, 214 CONN. 312 (1990), THE SUPREME COURT FOUND THAT “THE DISCLOSURE AND INSPECTION REFERRED TO UNDER §5-225, APPLIES ONLY TO THE CANDIDATE WHO HAS TAKEN THE EXAMINATION.”  ID. AT 320.  BASED ON THIS FINDING, THE SUPREME COURT HELD THAT §5-225, G.S., PROVIDED AN EXEMPTION FROM MANDATORY DISCLOSURE WITH REFERENCE TO PERSONS OTHER THAN A PERSON SEEING THEIR OWN EXAMINATION PAPERS.
     13.  MOREOVER, IN 2013, THE GENERAL ASSEMBLY FURTHER NARROWED §5-225, G.S., PERMITTING ONLY THOSE INDIVIDUALS WHO FAILED AN EXAMINATION THE RIGHT TO REVIEW THEIR EXAMINATION MATERIALS.  SEE DETAILED DISCUSSION OF PUBLIC ACT 13-247, INCLUDING THE GENERAL ASSEMBLY’S BILL SUMMARY, IN DOCKET #FIC 2013-663; MARK DUMAS AND THE CONNECTICUT STATE POLICE UNION V. DONALD DEFRONZO, COMMISSIONER, STATE OF CONNECTICUT, DEPARTMENT OF ADMINISTATIVE SERVICES; AND STATE OF CONNECTICUT, DEPARTMENT OF ADMINISTRATIVE SERVICES.
     [12.] 14.  In Nsonsa Kisala v. Commissioner, State of Connecticut, Department of Public Health, et al., Docket #FIC 2014-389 (March 11, 2015); and Barry Natale v. Commissioner, State of Connecticut, Department of Education, et al., Docket #FIC 2015-109 (August 18, 2015), the Commission found that the CT-HR-12 form, entitled “Application for Examination or Employment,” is used in the state’s classified service as both an examination application and as an employment application.  The Commission also drew a distinction between competitive positions, which require an examination, and non-competitive positions that do not require an examination, and concluded that because non-competitive positions do not require an examination, the CT-HR-12 and supporting documents are employment applications, which generally fall outside the scope of §5-225, G.S. 
     [13]. 15.  Significantly, however, the Commission concluded in Natale that, even if a position is non-competitive, and the CT-HR-12 and supporting documents therefore ordinarily would be considered employment applications, such records still may be considered examination applications for purposes of §5-225, G.S., if a non-traditional “examination” was administered.  Under Natale, such non-traditional “examination” may consist of a review of professional credentials and experience, and an evaluation of certain skills, but must result in a “final earned rating” for each applicant.  In addition, the agency must have established a “minimum earned rating necessary to pass the examination, and have compiled a list of candidates taking the “examination,” together with their respective final earned rating.  
     [14.] 16.  It is found that the position, described in paragraph 2, above, is identified by the Department of Administrative Services as non-competitive.   The respondents argued, however, at the hearing in this matter, that nonetheless, they administered a “de facto examination,” for this position, and that under Natale, the CT-HR-12 and supporting documents are examination applications for purposes of §5-225, G.S.
     [15.] 17.  It is found that the respondents, in this case, did not establish a “minimum earned rating necessary to pass the examination;” did not conduct an evaluation that resulted in a “final earning rating” for each applicant; did not compile a list of candidates taking the examination that included each applicant’s final earned rating; and failed to prove that they otherwise administered a non-traditional “examination.”
     [16.] 18.  Based upon the foregoing, it is concluded that the requested records are not examination applications for purposes of §5-225, G.S.
     [17.] 19.  Accordingly it is concluded that the respondents violated the disclosure requirements in §§1-210(a) and 1-212(a), G.S., by withholding such records from the complainant.