FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

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

Kevin Brookman,
Complainants) Notice of Meeting
against
Docket #FIC 2009-209
Steven J. Adamowski, Superintendent of
Schools, Hartford Public Schools; Jill Cutler-
Hodgman, Labor Relations Department,
Hartford Public Schools; Milly Ramos-
Agosto, Labor Relations Department, Hartford
Public Schools; and Hartford Public Schools,
Respondents) August 6,2009

Transmittal of Proposed Final Decision

In accordance with Section 4-179 of the Connecticut General Statutes, the Freedom of
Information Commission hereby transmits to you the proposed finding and decision prepared by
the hearing officer in the above-captioned matter.
This will notify you that the Commission will consider this matter for disposition at its
meeting which will be held in the Freedom of Information Commission Hearing Room, 18-20
Trinity Street, 1st floor, Hartford, Connecticut, at 2 p.m. on Wednesday, September 9,2009.
At that time and place you will be allowed to offer oral argument concerning this proposed
finding 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 additional
time 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, to
such representatives, and (2) include a notation indicating such notice to all parties or their
representatives.
Although a briefer memorandum of law is not required, if you decide to submit such a
document, the Commission requests that an original and ten (10) copies be filed on or before
August 28, 2009. PLEASE NOTE: Any correspondence, brief or memorandum directed to
the Commissioners 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 a notation
indicating such notice to all parties or their representatives and (3) be limited to argument.
NO NEW EVIDENCE MAY BE SUBMITTED.
If you have already filed a briefer memorandum with the hearing officer and wish to
have 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 the
parties are represented, to their representatives, that such previously filed document is
being submitted to the Commissioners for review.

By Order of the Freedom of Information Commission

W. Paradis, Acting Clerk of the Commission

Notice to: Kevin Brookman

Melinda B. Kaufmann, Esq.
 FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Report of Hearing Officer

Kevin Brookman,

Complainant

against Docket #FIC 2009-209

Steven J. Adamowski,
Superintendent of Schools,
Hartford Public Schools;
Jill Cutler-Hodgman,
Labor Relations Department,
Hartford Public Schools;
Milly Ramos-Agosto,
Labor Relations Department,
Hartford Public Schools; and
Hartford Public Schools,

Respondents August 5, 2009

The above-captioned matter was heard as a contested case on July 27, 2009, at
which time the complainant and the respondents appeared, stipulated to certain facts and
presented testimony, exhibits and argument on the complaint.

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. By letter of complaint filed April 14,2009, the complainant appealed to the
Commission, alleging that the respondents violated the Freedom of Information ("FOI")
Act by failing to comply with his request to review public records. The complainant
requested the imposition of the maximum civil penalty against the individual
respondents, Steven J. Adamowski, Jill Cutler-Hodgman, and Milly Ramos-Agosto.

3. It is found that the complainant, by email dated March, 11,2009 to the

respondent Jill Cutler-Hodgman, interim co-director of human resources for the Hartford
Board of Education, requested the following documents "for review:"
Docket #FIC2009-209 Page 2

Employment records/personnel records for Dr. Steven

Adamowski to include any employment contracts and or
employment agreements, including but not limited to any
original contracts/agreements and or supplemental
agreements covering transportation and use of a city
vehicle, housing and or agreements regarding any living
expenses covered by the City of Hartford and or the
Hartford Board of Education.

Also, please include any documentation regarding use

of any City credit cards and/or expense reports or requests
for reimbursement for purchases submitted to the City of
Hartford and/or the Hartford Board of Education.

4. It is found 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 statutory
copying fees.

5. It is found that the complainant, by reply email on the same day, pointed out
that 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 March
20, called Ms. Ramos-Agosto and asked when he would he would be given access to the
requested records.

7. It is found that Ms. Ramos-Agosto then on that day, March 20, 2009, faxed a
copy 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 credits
on Superintendent Adamowski's credit card. The complainant was not charged for the
copies.

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

9. It is found that the complainant immediately called Ms. Ramos-Agosto and

complained 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 of
the purchases and credits on the Superintendent's credit card, which was the last page of
the report for that card, but the pages of itemization of purchases and credits that appear
on the pages that precede the summary. Additionally, he wanted any records that would
show whether the City or the Board of Education was paying for the Superintendent's
apartment.
Docket #FIC2009-209 Page 3

10. 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 to
do. Ms. Cutler-Hodgman told Ms. Ramos-Agosto that it was Ms. Cutler-Hodgman's
position that the respondents had complied with the complainant's request.

11. It is found that the complainant, by email dated April 13, 2009, reiterated his
request to all three individually-named respondents, indicating his belief that they had not
complied with his request.

12. It is found that Ms. Ramos-Agosto responded by email on that same day,
saying that "We responded to your request via fax on March 20, 2009."

13. It is found that the complainant, in turn, again on the same day replied:

I might suggest that you read the request again. You

responded with one document, there were several items
requested. There was also some sort of spread sheet
showing credit card use. That is not what I asked for....

14. It is found that the complainant then filed his complaint.

15. It is found that, in response to the complaint filed, counsel for the respondents
wrote the complainant on July 1, 2009 that the respondents had complied with his
request. Counsel additionally stated:

If you are claiming that the Hartford Board of

Education failed to provide any requested documents,
please indicate specifically which documents you believe
were covered by your request but not provided so that we
may properly respond to your requests.

16. It is found that counsel for the respondents, by letter dated July 20, 2009,
reiterated her request that the complainant specify which documents were not provided.
17. It is found that the complainant, by letter dated July 21, 2009 to counsel for
the respondents, reiterated his original March 11, 2009 request, and also specified three
categories of records not provided: (1) information regarding the Superintendent's
housing and living expenses paid by the City of Hartford or the Board of Education; (2)
the detailed credit card expenses incurred by the Superintendent over the past two years,
as required under "P card use guidelines;" and (3) any supplemental agreements
mentioned in the original employment agreement.

18. It is found that the respondents, through counsel, then gathered several
hundred pages of records and made them available for the complainant's review on July
24, 2009.
Docket #FIC2009-209 Page 4

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

"Public records or files" means any recorded data or
information relating to the conduct of the public's business
prepared, owned, used, received or retained by a public
agency, or to which a public agency is entitled to receive a
copy by law or contract under section 1-218, whether such
data or information be handwritten, typed, tape-recorded,
printed, photostated, photographed or recorded by any
other method.

20. Section l-210(a), G.S., provides in relevant part:

Except as otherwise provided by any federal law or

state statute, all records maintained or kept on file by any
public agency, whether or not such records are required by
any law or by any rule or regulation, shall be public records
and every person shall have the right to (1) inspect such
records promptly during regular office or business hours,
(2) copy such records in accordance with subsection (g) of
section 1-212, or (3) receive a copy of such records in
accordance with section 1-212.

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

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

23. The respondents contend, to the contrary, that they promptly and sufficiently
complied with complainant's request on April 14; that he failed to clarify his request
beyond directing the respondents' attention to the language of his written request; that he
failed to respond to counsel's request for clarification on July 1; that he refused to specify
what he wanted until July 20; and that when he finally specified what he wanted, he
sought records outside the scope of his original request.

24. With respect to the respondents' April 14 provision of six pages of records, it
is found that, considering the small number of records provided, the lack of evidence that
those documents were difficult to obtain by the respondents, and the respondents' failure
Docket #FIC2009-209 page 5

to provide those records until prompted by a telephone call from the complainant, that
those records were not provided promptly within the meaning of §l-210(a), G.S.

25. It is therefore concluded that the respondents violated §l-210(a), G.S., by

failing to make the six pages of records available until over a month after the
complainant's request.

26. With respect to the respondents' assertion that the complainant refused to
clarify his request, it is found that, at a minimum, the complainant, immediately after he
received the six pages of records on April 14, contacted the respondents and complained
vociferously that he wanted the detail of the credit card use, and any records pertaining to
payment by the Board of Education or the City of Hartford for the Superintendent's
apartment.

27. With respect to the respondents' assertion that it was insufficient for the
complainant to direct their attention to the language of his request, it is found that his
request is reasonably clear on its face, and that it was not unreasonable for the
complainant to rely on it.

28. With respect to the respondents' assertion that the records specified by the
complainant on July 21, as described in paragraph 17, above, were outside the scope of
his original request, it is found to the contrary that the records so specified on July 21
were plainly within the scope of his original request.

29. The respondents maintain that the hundreds of pages of records provided on
July 24 were provided promptly, because they were provided within days of the
complainant's July 21 letter, and that they would have been provided even earlier had the
complainant responded to respondents' counsel's July 1 letter.

30. With respect to the respondents' assertion that the complainant failed to
respond promptly to respondents' counsel's July 1,2009 request for clarification, it
found, based upon the representation of counsel for the respondents, that the July 1, 2009
letter was deposited in the mail.
31. The respondents contend that, since the July 1 letter was deposited in the
mail, it is deemed received by the complainant pursuant to the "mailbox rule."

32. The mailbox rule is the name for the prevailing tenet that a properly stamped
and addressed letter that is placed into a mailbox or handed over to the United States
Postal Service raises a rebuttable presumption that it will be received. 29 Am. Jur. 2d,
Evidence § 262 (1994); see Tvler E. Lvman. Inc. v. Lodrini. 63 Conn. App. 739, 747, 780
A.2d 932, cert, denied, 258 Conn. 902, 782 A.2d 137 (2001).

33. The respondents have met their burden of proving that the July 1 letter was
placed into a mailbox or handed over to the United States Postal Service.
Docket #FIC2009-209 Page 6
*

34. Pursuant to the mailbox rule, the burden then shifts to the complainant to
present evidence that rebuts this presumption.

35. The complainant testified without contradiction that he never received the
letter, which is why he didn't respond.

36. Further, it is found that the complainant immediately replied to the

respondents' March 12, 2009 email, immediately responded to the respondents' April 13
fax of documents, immediately responded to respondents' counsel's subsequent July 20
letter, immediately responded to respondents' counsel's three emails on July 23 and 24,
and immediately responded to respondents' counsel's offer to review the records days
before the hearing on this matter.

37. It is therefore found, by reasonable inference from the facts, that had the
complainant received the July 1 2009 letter, he would have immediately responded to it
in the same manner as he responded to every other communication from the respondents
and respondents' counsel related to his request.

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

39. Given that the respondents were able to produce hundreds of pages of
responsive documents within a matter of days after July 20, and that those documents
were provided in response to a letter that did not in fact ask for any new records beyond
the complainant's March 11 request, it is concluded that the respondents failed to
promptly 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 the
Freedom of Information Act was without reasonable
grounds and after the custodian or other official directly
responsible for the denial has been given an opportunity to
be heard at a hearing conducted in accordance with sections
4-176e to 4-184, inclusive, the commission may, in its
discretion, impose against the custodian or other official a
civil penalty of not less than twenty dollars nor more than
one thousand dollars.

41. The standard for when a violation is "without reasonable grounds" is

analogous to the legal standard "without any substantial justification." Connecticut
Department of Public Safety v. FOIC et al., 1997 WL 537117 (Conn. Super.), affirmed,
247 Conn. 341 (1998). Similarly, the phrase "without reasonable justification" has been
Docket #FIC2009-209 Page?
t

construed to mean "entirely unreasonable or without any basis in law or fact." Id.,
quoting Bursinkas v. Department of Social Services. 240 Conn. 141,155 (1997).
42. The respondents contend that their initial provision of six pages of records to
the complainant was reasonable, that any delay was due to the complainant's failure to
specify 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 11
request.

43. It is found, however: that the complainant's March 11 request was reasonably
clear on its face, and that there were no reasonable grounds for the respondents to make
the most minimal response possible on April 13; that the respondents were or should have
been aware that there were hundreds of additional responsive pages, and that there were
no reasonable grounds for delaying access to those records until late July; that the
respondents specifically withheld the detailed credit card records explicitly requested by
the complainant, and that there were no reasonable grounds for doing so; and that
virtually all of the delay in providing the requested records was the responsibility of the
respondents, and that it is not reasonable to blame that delay on the complainant.

44. It is therefore found that the respondents' violations of the FOI Act were
without reasonable grounds within the meaning of §l-206(b)(2).

45. With respect to the requirement in §l-206(b)(2), G.S., that the "custodian or
other official directly responsible for the denial has been given an opportunity to be
heard" 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 heard

46. There is no evidence that Superintendent Adamowski was directly involved

in the denial of the complainant's FOI rights.

47. It is found that Ms. Ramos-Agosto acted solely at the direction of Jill Cutler-
Hodgman, who she characterized as "her boss."

48. It is found that Ms. Ramos-Agosto communicated the request to Ms. Cutler-
Hodgman, that Ms. Cutler-Hodgman limited the response to the request to six pages of
records, and that Ms. Cutler-Hodgman refused to reconsider her position despite the
complainant's clear communication to Ms. Ramos-Agosto, who in turn communicated to
Ms. Cutler-Hodgman.

49. It is therefore found that Ms. Cutler-Hodgman is the custodian or other

official 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 the
other respondents believe that their actions to stonewall the provision of public records
can be entirely cured by a last-minute offer of documents days before an FOI
Docket #FIC2009-209 Page 8

Commission hearing, and that no adverse consequences will flow from that action other
than a directive to henceforth comply with the FOI Act, then the promptness requirement
of §§l-210(a), G.S., will have been rendered nugatory.

The following order by the Commission is hereby recommended on the basis of

the record concerning the above-captioned complaint:

1. The respondent Jill Cutler-Hodgman shall, within 45 days of the notice of

final decision in this matter, remit a civil penalty in the amount of $100 to the
Commission.

Viktor R. Pe:
as Hearing Officer
F1C2009-209/HOR/VRP/07282009